Election lawsuit goes to judge

The election for Alaska House District 40 is now in the hands of Anchorage Superior Court Judge Andrew Guidi.

On Monday, lawyers for the state of Alaska and Rep. Benjamin Nageak, D-Barrow, issued their closing statements in Nageak’s attempt to overturn the results of the August Democratic primary in the district that covers the North Slope Borough and the Northwest Arctic Borough.

On Election Day and again after a recount, challenger Dean Westlake defeated the incumbent Nageak. The final certified tally was 825-817 in Westlake’s favor.

Nageak sued, challenging that the election was fatally flawed by mistakes in precincts across the district.

“The present election cannot stand,” Nageak attorney Tim McKeever said. “It was done illegally, in violation of the law, and … an essential element of the election has been violated, and the court needs to recognize that fact.”

Arguing for the state, assistant Attorney General Margaret Paton-Walsh admitted that mistakes were made, but argued that the mistakes did not rise to the level of “malconduct, fraud, or corruption,” the standard required by state law to overturn an election.

“We do not assume poll workers are dishonest without any evidence whatsoever,” she argued to Guidi.

The Anchorage judge is under a tight timeline to decide the case. The Alaska Division of Elections needs to know the results of the race in time to open early voting for the general election on Oct. 24.

Regardless of Guidi’s decision, the case is bound for the Alaska Supreme Court, which is already preparing to receive an appeal.

Guidi will issue his decision no later than the close of business Thursday (and likely before that, he said Monday afternoon). A schedule posted by the clerk of Alaska’s appellate courts outlines what follows: An appeal by the losing party on Friday, opening briefs on Saturday, responsive briefs on Monday, and oral arguments Wednesday.

The Supreme Court would decide the case by Oct. 14, in time for the division of elections to begin mailing blank ballots to the North Slope three days later.

While Guidi is unlikely to have the final word, his word will have weight among the Supreme Court justices, who typically are reluctant to overturn a lower court’s decision unless there is significant merit.

In this case, McKeever faces a three-part challenge to win. He must prove mistakes were made, that those mistakes were deliberate, and the mistakes changed the outcome of the race.

The state has admitted the first part of the test, and the third part is relatively easy, given the closeness of the race. The second part of the test is the most difficult, and over the past week, McKeever has done his best to pass that test with a panel of witnesses and a pantry of evidence.

The case hinges on three precincts. In one, covering the town of Buckland, a poll worker served as the assistant for several elderly voters unable to get to the polls. Under state law, a “special-needs” ballot allows someone to vote on Election Day with the assistance of a “personal representative” who travels to the polling place instead of the actual voter.

In the community of Point Hope, eight ballots were cast by people who did not sign the precinct register — there is no way to know whether those voters were registered, and there is no way to distinguish the eight questionable ballots from the legally cast ones.

Finally, in the Shugnak precinct, poll workers allowed all 51 voters to cast both Democratic and Republican ballots: For 51 voters, there were 102 ballots cast.

“Clearly, this was conduct that was malconduct,” McKeever said. “It was violation of the law. It could change the outcome of the race.”

Paton-Walsh argued that the double-voting, while inappropriate, was unlikely to change the result of the election. Both Westlake and Nageak were on the Democratic ballot, and since each voter cast only one ballot for each party, neither man could benefit.

That’s not true, McKeever argued, since the first choice of any voter in Alaska’s primary is which ballot to vote, and in this case, the Shugnak voters were denied that choice.

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