Trial begins in Nageak elections lawsuit

Attorneys for Rep. Benjamin Nageak began their campaign in court Tuesday as the Barrow Democrat challenges the results of the August primary election that saw him unseated by a Democratic challenger from northwest Alaska.

In an Anchorage courtroom, Nageak attorney Tim McKeever interrogated Division of Elections supervisor Josie Bahnke for several hours, beginning a trial that is expected to last until Monday.

That’s the deadline set by judge Andrew Guidi, who wants to confirm a winner in time to avoid interference with early voting for the Nov. 8 general election.

After a recount requested by Nageak, the Division of Elections confirmed Sept. 12 that Dean Westlake defeated Nageak on Election Day, 825 votes to 817.

Nageak responded with a lawsuit declaring “numerous errors have been made in the primary election recount for House District 40.”

“Voters in several precincts were improperly, illegally and unconstitutionally deprived of the primary ballot of their choice and the right to have elections properly conducted in accordance with state and federal law,” McKeever’s appeal states.

McKeever and Nageak face a tall task in convincing Guidi to alter the results of the election. To change the results, they must prove there was a mistake in the conduct of the election, that the mistake amounted to “malconduct, fraud, or corruption,” and that the malconduct changed the results of the election.

“It’s an extremely heavy burden on the plaintiffs here,” said Thomas Amodio, Westlake’s attorney.

At the end of the trial, Guidi may “pronounce judgement on which candidate was elected,” Alaska law states, or he may set the election aside and call for a new vote.

If a new vote takes place, Nageak and Westlake likely would rematch in the general election.

Much of the first day of the trial was spent establishing what Bahnke knew and when she knew it. McKeever brought up several mistakes by poll workers — forms not correctly signed, results not reported on time, and most critically, votes cast incorrectly.

In the community of Shugnak, for example, voters were permitted to cast both Republican and Democratic ballots — in effect voting twice.

“The issue is whether or not the election workers purposely disregarded a requirement” in violation of their training, McKeever said.

On Tuesday, McKeever seemed particularly interested in whether a poll worker in the town of Buckland went out and tried to get people to come to the polls to vote.

He also focused on Bahnke’s actions when she learned about problems in Shugnak. (Westlake and Nageak were both on the Democratic ballot, meaning the results were unlikely to change as a result of the double voting.)

“You understood that it was illegal for people to receive more than one ballot?” McKeever asked about Bahnke’s actions after Election Day.

“Yes,” she said.

“And you understood that 50 people … received more than one ballot?”

“Yes,” she said.

When Bahnke didn’t directly answer a question about whether she realized the Shugnak votes were more than the margin between the two candidates, McKeever’s questioning sharpened.

“But you understand math, right?” he asked.

The state will have a chance to question Bahnke when the trial resumes at 8:40 a.m. today in Anchorage.

According to court documents, McKeever plans to call 12 witnesses.

The state expects to call five, including Nageak.

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