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Dansereau, et al. v. Ulmer (Election Case) (9/22/95), 903 P 2d 555
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THE SUPREME COURT OF THE STATE OF ALASKA
DANA DANSEREAU; GREGORY J. )
GURSEY; SAMUEL HAYWOOD; KATHY ) Supreme Court No. S-6894
HAYWOOD; C.E. JENKINS; KIM )
RYAN; JAMES WEYMOUTH; RITA T. ) Superior Court No.
WEYMOUTH; T.J. NORTHCOTT; ) 3AN-94-10948 CI
DAVID D. KYZER, M.D.; and )
JANE AND JOHN DOES 1-10, )
) O P I N I O N
) [No. 4264 - September 22,
FRAN ULMER, Lieutenant )
Governor, State of Alaska, )
and DAVID KOIVUNIEMI, Acting )
Director of the Alaska )
Division of Elections, )
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Karl S. Johnstone, Judge.
Appearances: Wevley William Shea, Anchorage,
for Appellants. James L. Baldwin and Lauri
J. Adams, Assistant Attorneys General, and
Bruce M. Botehlo, Attorney General, Juneau,
for Appellees. Avrum M. Gross, Gross &
Burke, P.C., Juneau, for Amicus Curiae North
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
COMPTON, Justice, dissenting in part.
Dana Dansereau and nine other voters (Contestants)
challenged the validity of the November 8, 1994 gubernatorial
election in which Tony Knowles was elected to the office of
Governor of Alaska.1 The superior court granted summary judgment
to the State of Alaska, thereby dismissing all of Contestants'
claims. We affirm in part and reverse in part.
II. FACTS AND PROCEEDINGS
Contestants challenged the election by filing suit in
December 1994, alleging that malconduct by the State and corrupt
acts by third parties had occurred and that those acts were
sufficient to change the result of the gubernatorial election.
Contestants requested that the State conduct a new election for
governor or declare James O. Campbell Governor of Alaska.
Contestants moved for summary judgment in mid-December
1994. The State cross-moved. The superior court granted the
State's motion for summary judgment on February 8 and 9, 1995.
This appeal followed. On appeal the North Slope Borough
submitted an amicus curiae brief.
Contestants advance three main arguments. First, they
argue that a North Slope Borough voter assistance program, which
offered to reimburse rural voters for the gasoline they used to
transport themselves to the polls, violated state and federal
election laws. Second, they argue that a postcard sent to Doyon,
Limited (Doyon) shareholders violated federal and state election
laws, because it offered entry in a $1,000 cash prize drawing to
those who submitted a ballot stub, or similarly sized piece of
paper, and stated that the Alaska Federation of Natives (AFN)
overwhelmingly endorsed Tony Knowles for governor. Finally,
Contestants assert that the State committed election malconduct
in its operation of the Prudhoe Bay voting station.2
The right to vote encompasses the right to express
one's opinion and is a way to declare one's full membership in
the political community. Thus, it is fundamental to our concept
of democratic government. Moreover, a true democracy must seek
to make each citizen's vote as meaningful as every other vote to
ensure the equality of all people under the law.
Alaska Statute 15.20.5403 is the statutory mechanism
through which voters can challenge, under prescribed conditions,
election results which they believe denigrated their right to
vote. Because the public has an important interest in the
stability and finality of election results, Dale v. Greater
Anchorage Area Borough, 439 P.2d 790, 792 (Alaska 1968), we have
held that "every reasonable presumption will be indulged in favor
of the validity of an election." Turkington v. City of Kachemak,
380 P.2d 593, 595 (Alaska 1963). However, if the party
challenging an election proves that misconduct occurred and that
it could have changed the result of the election, we may vitiate
the election or determine which candidate was elected. Boucher
v. Bomhoff, 495 P.2d 77, 80 n.5, 82 (Alaska 1972). Under AS
15.20.540, Contestants have the "dual burden" of showing that
there was both a significant deviation from statutory direction,
and that the deviation was of a magnitude sufficient to change
the result of the election. Id. at 80. We here review the
summary judgment dismissing the Contestants' lawsuit.4
Contestants argue that the three events constitute
malconduct or corruption under AS 15.20.540 sufficient to change
the results of the gubernatorial election.
A. North Slope Borough's Gasoline Reimbursement
Transportation Assistance Program
During the 1994 election, the North Slope Borough
(Borough) conducted a transportation assistance program allegedly
designed to overcome the unique obstacles to voting participation
posed by the Borough's vast and largely roadless geography. The
Borough informed residents before election day that it would
reimburse each voter for up to ten gallons of gasoline used by
the voter to reach the polls. After voting, a resident could
take his or her ballot stub to tables set up by the Borough near
the election booths and fill out a "voter assistance voucher."
On the voucher the voter would "swear or affirm" to the amount of
gasoline used to transport the voter to the polls. The voter
could then redeem the voucher for the specified amount of
gasoline at a local fuel station before July 1, 1995. The
Borough allowed all voters, regardless of how far they had
travelled to the polls, to participate in this program.
Contestants argue that this program violated federal
and state criminal election laws. Contestants allege that the
Borough impermissibly expanded the transportation assistance
program beyond the limited use condoned in advance by the United
States Department of Justice Election Crimes Branch and that
volunteers witnessing voters' signatures on gasoline vouchers
allowed nearly all voters to claim ten gallons, even though most
voters had not used that much gasoline to reach the polls.
Contestants further allege that the Borough instituted the
transportation assistance program with the intent of helping
Candidate Knowles win the election.
1. The transportation assistance program is
not illegal under Alaska law
Contestants allege that the Borough's transportation
assistance program violates AS 15.56.030 and is therefore a
"corrupt practice as defined by law sufficient to change the
results of the election" under AS 15.20.540(3).5 Contestants
characterize the Borough's program as a "gas for votes" program
and argue that thousands of persons were paid the value of up to
ten gallons of gasoline to vote.6
Although AS 15.56.030(a)(2) prohibits a person from
paying another person to vote for a particular candidate,
proposition, or question, no Alaska Statute prohibits a person
from compensating another person for voting per se. See AS
15.56.030. Thus, assuming the Borough's program paid voters with
fuel to vote in the election, regardless of the amount of fuel
the voters used to reach the polls, the program would not be a
corrupt practice as defined by Alaska law, unless the offers of
payment were made with the intent "to induce the person to vote
for or refrain from voting for a candidate at an election." AS
In stark contrast to federal election law, Alaska
election law does not prohibit paying voters. See discussion
infra. In this respect Alaska's statutory scheme is similar to
the election laws of other states. For example, under California
law it is not unlawful to offer any form of consideration,
including cash payment, to a person to vote, provided that the
payment is not an inducement to or reward for voting for, or
refraining from voting, for a particular person or measure.7
California deleted language in the previous version of the
dealing with voting, agreeing to vote, coming
to the polls, or agreeing to come to the
polls . . . since [this language] could,
conceivably, be used to punish someone for
having rewarded a voter for doing what is his
[or her] civic duty -- namely coming to the
polls and voting. Various bicentennial
attempts to produce large turnouts this year
may well be in violation of these
subsections. What needs to be prohibited is
rewarding a person for voting in a particular
manner, something [the statute] continues to
Legislative Committee Comment 1976 Addition, former Cal. Elec.
Code ' 29621 (now ' 18521).
Similarly, Washington State election law prohibits any
person from "directly or indirectly offer[ing] a bribe, reward,
or any thing of value to a voter in exchange for the voter's vote
for or against any person or ballot measure, or authoriz[ing] any
person to do so . . . ." Wash. Rev. Code Ann. ' 29.85.060 (West
1993). In contrast, Oregon election law prohibits a person from
directly or indirectly "giving or promising to give money,
employment or other thing of value" to a person with the intent
to induce an individual to register or vote. Or. Rev. Stat. '
260.665(1) & (2)(a) (1993). However, Oregon specifically
excludes "[f]ree transportation to and from the polls for persons
voting" from this prohibition. Or. Rev. Stat. ' 260.665(4)(f)
Although the language of AS 15.56.030(a)(2) is not as
unequivocal as the language of California's law, which states
that one may not offer compensation in exchange for "voting for
any particular person," Cal. Elec. Code ' 18521 (West 1995), it
appears clear from a plain reading of AS 15.56.030(a)(2) that the
prohibition against inducing a person to "vote for or refrain
from voting for a candidate" under AS 15.56.030(a)(2) has an
identical meaning. Thus, to show that the Borough's
transportation assistance program violated AS 15.56.030(a)(2),
Contestants must demonstrate that the Borough paid voters and
did so with an intent to induce voters to vote for or refrain
from voting for a particular candidate.
a. Payment for voting
Contestants argue that this case is analogous to United
States v. Garcia, 719 F.2d 99 (5th Cir. 1983), where the court
held that 42 U.S.C. ' 1973i(c) prohibits not only paying a voter
in cash, but also offering any item of value, such as a welfare
food voucher, in exchange for a vote.8 Id. at 101-02. The State
and Borough argue that Garcia and similar cases9 are inapposite.
They argue that programs with the primary goal of assisting
voters in reaching the polls have long been upheld against
challenges that such assistance constitutes a payment to vote.
In United States v. Lewin, 467 F.2d 1132, 1136 (7th
Cir. 1972), the court classified providing transportation to the
polls as "assistance rendered by civic groups to prospective
voters," rather than payment, and held that ' 1973i(c) does not
proscribe "efforts by civic groups or employers to encourage
people to register." The United States Department of Justice
appears to agree with this analysis.
[T]he concept of "payment" does not reach
things such as rides to the polls or time off
from work which are given to make it easier
for those who have decided to vote to cast
their ballots. Such "facilitation payments"
are to be distinguished from gifts made
personally to prospective voters for the
specific purpose of stimulating or
influencing the more fundamental decision to
participate in an election.
Craig C. Donsanto, Federal Prosecution of Election Offenses 18
(5th ed. 1988).
The distinction between "facilitative" programs and
"gift" programs seems based in part on historical factors which
preceded the passage of most voting rights legislation. See Day-
Brite Lighting v. State of Missouri, 342 U.S. 421, 424-25 (1952)
(upholding state law requiring employer to allow employees four
hours of paid leave on election day in order to vote); 111 Cong.
Rec. S. 8986 (daily ed. April 29, 1965) (Section 1973i(c) does
not prohibit the "practice that has been recognized and has been
accepted by both political parties and all organizations with
respect to helping to transport people who do not have means of
transportation to the polls in order to cast their ballots").
See also Parsley v. Cassady, 189 S.W.2d 947, 948 (Ky. 1945)
(upholding candidates' contribution of cars and trucks to assist
in voter transportation as reasonable due to bad roads and
wartime exigencies); Watkins v. Holbrook, 223 S.W.2d 903, 903-04
(Ky. 1949) (upholding disbursement of money to provide for
transport to polls to "get out the vote").
Perhaps more importantly, this distinction reflects the
difficulty in balancing the need to minimize undue pecuniary
influence in elections with the desire to encourage and
facilitate maximum political participation. The State and
Borough argue that the transportation program is a valid
balancing of these two factors, while Contestants argue that the
program is an invalid form of vote solicitation.
The North Slope Borough comprises 89,000 square miles
and is inhabited by 5,760 people. The majority of these people
are regularly involved in subsistence activities. The Borough's
limited road system makes it difficult for residents in remote
areas to reach voting facilities. In some cases, snowmobile or
all-terrain vehicles are the only available modes of
transportation. Fuel is especially expensive in the Borough, and
because many residents do not participate fully in the cash
economy, a fuel expenditure may be still more costly.
The Borough argues that many individuals who would like
to vote will be deterred by the limited access to roads and the
cost of transportation in the Borough. Thus, a transportation
assistance program would clearly facilitate voting in the
Borough. However, the Borough argues, the sorts of
transportation programs already permitted in many other states,
in which volunteers car-pool or bus voters to voting stations,
would not be feasible in the Borough because of the limited road
access and the distances involved.
The Borough claims its program is "more feasible and
much cheaper" because it allows individual voters to provide
their own transportation to the polls and then be reimbursed for
the cost of fuel used by the voter to reach the polls. When the
Borough began developing this program, Special Counsel to the
Mayor contacted the Election Crimes Branch of the United States
Department of Justice to ascertain whether the program might
violate 42 U.S.C. ' 1973i(c). The Borough described its proposed
program as follows: "[t]he plan is to offer up to 10 gallons of
gasoline to each voter who requests it. The gasoline will help
cover these individuals' travel costs between town and their
hunting, fishing, whaling or other sites. Each voter will swear
or affirm to their need for the fuel to cover transportation
costs on the application for fuel." The Borough explained that
the assistance would not be payment because: (1) the Borough's
sole purpose was to facilitate voters reaching the polls or the
registrar's office; (2) the transportation norms in the
contiguous United States do not apply because of the lack of
roads; (3) the large amount of off-road travel in the region
removes many citizens from access to registrars and voting polls;
and (4) the lack of telephones or other methods of communication
with subsistence or other sites located outside of Borough
communities makes offering a "ride to the polls" impractical.
The Election Crimes Branch responded with an informal
opinion stating that "the outreach program as described in your
letter in our opinion is clearly lawful under 42 U.S.C. '
1973i(c)." The Election Crimes Branch stated that its
understanding was that the offer "would be made only to
individual Native Americans10 who are on active hunting status --
or who are otherwise located in extremely remote areas of the
North Slope Borough." Its response further stated that:
[w]e assume for the purposes of this letter
that these offers of gasoline will be made in
a completely politically neutral manner; that
they will not be connected in any way with
specific candidates or political
organizations; that they will be available to
all individual Native Americans whose
physical location satisfies the eligibility
criteria describe[d] in your letter; . . .
and that the gas provided will not exceed
that needed to transport the individual in
question from his or her hunting camp to the
nearest registration or polling site.
Its response concluded, "[i]n sum, the gasoline offer describe[d]
in your letter, and as amplified by the assumptions summarized
above, is functionally similar to an offer of [a] ride to the
polls in jurisdictions that have roads and geographically concise
Contestants argue that the Borough conducted the
program "directly contrary to the advice and warnings" of the
Election Crimes Branch by allowing participation by voters who
did not meet the criteria set forth in the response, and by
allowing many people to claim more gas than they actually used,
resulting in a net pecuniary gain. Although Contestants
presented no evidence that any particular voter actually received
more fuel than necessary to reach the polls, they presented
evidence that this was the likely result of the Borough's
program. The 847 vouchers put into evidence by Contestants
reveal that fewer than ten voters signed for less than ten
gallons of gasoline. Contestants provided evidence suggesting
that most Borough residents lived in communities no farther than
twelve miles from the polls and thus lived too close to the polls
to require ten gallons of gasoline for transportation on election
day. Contestants also provided evidence that there may have been
little significant subsistence activity on November 8 and
further, that the Borough might not have taken adequate steps to
ensure that voters did not receive more fuel than was necessary
for transportation to the polls. Thus, construing the facts in
the light most favorable to the nonmoving party, we hold that a
factfinder could conclude that the Borough's program paid voters
to vote. See Clabaugh v. Bottcher, 545 P.2d 172, 175 n.5 (Alaska
1976) (in ruling on a motion for summary judgment the court must
draw all reasonable inferences in favor of the nonmoving party).
b. Intent to induce a person to
vote for a candidate
As noted above, the Borough's program did not violate
Alaska's election laws unless the payment to vote was made with
the intent to induce a person to vote for or refrain from voting
for a candidate. AS 15.56.030(a)(2). Contestants argue that the
program is illegal because the Borough offered something of value
in exchange for getting out the vote with the expectation that an
increase in voter turnout meant an increase in votes for the
Democratic candidate for governor, Tony Knowles. Contestants
offered an affidavit in which Thomas Northcott affied that
several months after the election, a Borough executive boasted
about the high voter turnout in the area, and stated that the
incentive behind the gas for votes program was to get Tony
In reviewing the summary judgments entered against the
Contestants, the court must draw all reasonable inferences in
favor of the Contestants. The parties do not dispute that AS
15.56.030(a)(2) prohibits giving money or other valuable thing
with an intention to persuade a person to vote for a candidate.
(Because offering to give money or an other valuable thing can
also violate AS 15.56.030(a)(2), we need not distinguish between
the Borough's offer and its delivery of valuable vouchers to
voters.) The averments in Northcott's affidavit would support a
finding that the Borough, acting through its officials, intended
the program to increase the number of votes cast for Candidate
Knowles. Consequently, the question we must answer is whether AS
15.56.030(a)(2) prohibits a candidate-neutral program which gives
or offers to give a thing of value in a manner that encourages
persons who might otherwise not have voted to go to the polls and
cast their votes for candidates for whom they were already
inclined to vote.
We give the language of AS 15.56.030 its ordinary
meaning when interpreting the statute because the language has
not acquired a peculiar meaning through statutory definition or
previous judicial construction. Foreman v. Anchorage Equal
Rights Comm'n, 779 P.2d 1199, 1201 (Alaska 1989); Wilson v.
Municipality of Anchorage, 669 P.2d 569, 572 (Alaska 1983).
Alaska Statute 15.56.030(a)(2) prohibits offering a thing of
value to a person "with the intent to induce the person to vote
for" a candidate. The most common legal definition of "induce"
is: "to lead on, to influence, to prevail on, to move by
persuasion or influence, to bring on or about, to effect, to
cause." See Commonwealth v. Mason, 112 A.2d 174, 176 (Pa. 1955)
(defining "induce" as "to lead on; to influence; to prevail on;
to move on by persuasion or influence . . .; to bring on or
about; to effect; to cause."); People v. Drake, 310 P.2d 997,
1003 (Cal. 1957) (using same definition); La Page v. United
States, 146 F.2d 536, 538 n.2 (8th Cir. 1945) (using same
definition as Drake); State v. Cook, 678 P.2d 987, 989 (Ariz.
1984) (the generally accepted meaning of "induce" is, "to lead
on; to move by persuasion or influence"); Black's Law Dictionary
775 (6th ed. 1990) ("To bring on or about, to affect, cause, to
influence to an act or course of conduct, lead by persuasion or
reasoning, incite by motives, prevail on"); Webster's New
Collegiate Dictionary 587 (1974) ("to lead on: move by persuasion
or influence;" "to call forth or bring about by influence or
stimulation"). These definitions connote an alteration of a
person's previous inclination.
The terms "induce" and "inducement" appear to have been
used most frequently in criminal law, especially in entrapment
cases. This usage clearly indicates that inducement requires
altering a person's disposition to act in a certain way. See,
e.g., State v. Hansen, 850 P.2d 571, 579 n.9 (Wash. App. 1993),
reversed on other grounds, State v. Stegall, 881 P.2d 979 (Wash.
1994) ("inducement" such as might support entrapment defense, "is
government conduct which creates a substantial risk that an
undisposed person or otherwise law-abiding citizen will commit
offense"); United States v. Salmon, 948 F.2d 776, 779 (D.C. Cir.
1991) ("Inducement is government behavior that would 'cause an
unpredisposed person to commit a crime.'") (citation omitted).
In Oregon Republican Party v. State of Oregon, 717 P.2d
1206, 1208 (Or. App.), remanded for dismissal as moot, 722 P.2d
1237 (1986), the court held that providing postage-paid envelopes
which recipients could use to return requests for absentee
ballots to the Republican Party's headquarters, did not
constitute an inducement to vote under O.R.S. 260.665(2)(a).
That statute prohibits inducing a person to register to vote.
The court reasoned that because "[i]nducement implies the promise
of an advantage as a result of performing the desired act," the
advantage offered must have an independent value to the voter.
Id. Without an independent value in exchange for the performance
of the act, the thing offered did not induce the act of
registering, but rather facilitated registration. Id. Applying
the Oregon court's definition of inducement to this case, to
prevail here Contestants must show that something of independent
value -- gasoline -- was offered to encourage voters to cast
their ballots for a candidate they would not otherwise have
selected. It is insufficient that something of value was offered
in exchange for inducing voting per se, because under Alaska law
it is legal to compensate a person for voting per se.
Unless improperly influenced, voters will cast their
ballots in accordance with their own criteria. No doubt voters
are influenced by such legitimate criteria as their own socio-
economic status and community values. Thus, residents of any
given community may naturally tend to favor a particular
candidate. Persons whose votes are facilitated by candidate-
neutral transportation assistance programs will likely vote for
the same candidates they would have favored if they had reached
the polls without assistance. Potential voters who could benefit
from transportation assistance may share beliefs or values which
tend to favor a particular candidate. It is not surprising that
some candidates or organizations employ transportation assistance
programs to target persons of a particular socio-economic status
or party registration, just as other candidates or organizations
may employ other programs, such as absentee ballot assistance,
hoping to maximize participation of voters thought more likely to
favor those candidates. See Oregon Republican Party, 717 P.2d at
1208 (discussing Republican Party mailing of absentee ballots
with postage pre-paid envelope).
When voting, a person must choose one candidate over
others. Thus, if the phrase "intent to induce to vote for or
refrain from voting for a candidate" in AS 15.56.030 is not read
to require an intent to persuade voters to choose candidates for
whom they would not otherwise have voted, that statute would have
to be construed as prohibiting payments for voting per se. As
discussed previously, such a reading of the statute would
conflict with its plain language.
There are many policy arguments for and against the
"commercialization" of votes. See, e.g., Day-Brite Lighting, 342
U.S. at 428 (Jackson, J., dissenting) (disagreeing with upholding
state statutes which require employers to give employees two
hours paid leave in order to vote and disapproving of "state-
imposed pay-for-voting system[s]"); Pamela S. Karlan, Not by
Money but by Virtue Won? Vote Trafficking and the Voting Rights
System, 80 Va. L. Rev. 1455 (1994) (discussing dangers to the
polity, especially to economically disadvantaged subsets, of vote-
buying schemes and contrasting these schemes with voting
incentive programs). These policy arguments have already been
resolved in Alaska. The election practice statutes enacted by
the Alaska Legislature do not proscribe voter incentive programs
which involve compensation for voting, even if the sponsor of a
program intends and expects that the program will benefit a
particular candidate; they only prohibit payments intended to
induce, i.e., influence or persuade, persons to vote in a
different manner than they would have otherwise. It is not for
the courts to second-guess this permissible legislative choice.
Applying that choice to the record before us, we find
no evidence which would permit a reasonable inference that the
persons responsible for the Borough's transportation assistance
program intended to induce voters to vote in a particular manner.
Most significantly, there was no evidence the program as
conducted was not candidate-neutral. Evidence that persons
responsible for the program, by encouraging eligible citizens to
vote, intended that the program would result in a net gain of
votes for Candidate Knowles would be insufficient to prove a
violation of AS 15.56.030(a)(2). As written, the statute does
not prohibit payment to induce persons to vote who would not
otherwise vote, so long as they are not induced to vote in a
particular manner. If a program is candidate-neutral in fact, we
must presume voters, in the sanctity of the voting booth, will
vote as they would have had they made their ways to the polls
without assistance or inducement.11
2. The alleged violation of federal
election law is not grounds for contest under AS
Contestants assert that they can challenge the election
under AS 15.20.540 because the Borough's program violated federal
Although a candidate-neutral program which offers
compensation to encourage voting per se does not violate Alaska
law, it appears to violate federal election law. See 42 U.S.C. '
1973i(c), supra note 8. That does not necessarily mean, however,
that a given federal violation is ground for an Alaskan election
The State and the Borough argue that the Alaska and
federal election statutes do not make the violation of a federal
criminal election statute a basis for invalidating an election.
The State notes that election contests based on the acts of third
parties must show that the third party committed a "corrupt
practice" as "defined by law." AS 15.20.540(3). The State
argues that the Alaska Legislature has expressly defined specific
acts as "corrupt practices," because it included the phrase
"violation of this section is a corrupt practice" in particular
election statutes. See, e.g., AS 15.56.010(b); AS 15.56.030(b);
AS 15.56.035(b). The State reasons that given the legislature's
careful attention to this classification, it clearly did not
designate the violation of federal criminal election law as a
Contestants do not respond to these assertions. It
would be inconsistent for the legislature not to prohibit
candidate-neutral payments made to encourage voting, see supra,
discussion of AS 15.56.030(a)(2), yet to regard such payments as
a "corrupt practice" sufficient to set aside an election, whether
or not they violated federal law. It is also unlikely the
legislature would have considered acts violating federal election
law, but not Alaska's election statutes, to be "corrupt practices
as defined by law," given that the federal election statutes do
not use that phrase. The absence of that phrase or some close
equivalent in the federal election statutes tends to confirm that
the Alaska Legislature did not intend that AS 15.20.540(3)
election contests could be based on acts that violated federal,
but not Alaska, election statutes.
We hold that an alleged violation of a federal election
statute by a third party is not an independent ground for an
election contest under AS 15.20.540(3). A violation of 42 U.S.C.
' 1973i(c) by a person other than an election official can be
ground for an election contest under AS 15.20.540(3) only if the
violation is also a "corrupt practice" as defined by Alaska
B. Postcard Mailed to Doyon Shareholders
The Tanana Chiefs Conference, Doyon, Limited and the
Fairbanks Native Association (TCC/Doyon/FNA) mailed a postcard to
Doyon shareholders before the election. One side of the postcard
offered to persons who submitted an entry on the 1994 ballot
stub, or similarly-sized piece of paper, an opportunity to
participate in a drawing for one thousand dollars in cash.
Participants had to submit entries to their tribal counsel office
by noon the day after the election. Neither TCC, Doyon, nor FNA
endorsed any candidate for governor in the November 8 general
election. However, the other side of the postcard encouraged
Native Alaskans to vote. This side stated that "it is very
important" to vote and that "one vote does make a difference."
It asked people to encourage their friends and relatives to vote
in the general election. The following statement was centered on
this side of the postcard: "At this year's Alaska Federation of
Natives convention, Native delegates from across Alaska
overwhelmingly endorsed Tony Knowles for governor." Contestants
argue that the postcard and the drawing it advertised violated
Alaska election law.
1. Absence of language required by statute
Contestants argue that the postcard violates Alaska
election law because it did not bear the words "paid for by," as
required by AS 15.56.010.13 The State argues that the postcard
satisfies the purpose of AS 15.56.010 and that its distribution
should thus not be considered a "corrupt practice" under AS
Because the postcard was distributed by persons other
than election officials, Contestants must demonstrate that its
distribution was a "corrupt practice," not simply "malconduct."
AS 15.20.540(1) & (3).
We first consider the significance of the omission of
the information required by AS 15.56.010. This court has held
that the term "malconduct" as used in AS 15.20.540 means a
"significant deviation from statutorily or constitutionally
prescribed norms." Hammond v. Hickel, 588 P.2d 256, 258 (Alaska
1978) (citing Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972)).
Although Hammond v. Hickel involved claims of official malconduct
rather than third-party corruption, given our prior holding that
election statutes will be liberally construed to uphold the will
of the electorate, Carr v. Thomas, 586 P.2d 622, 626 n.11 (Alaska
1978), we choose to apply Hammond's requirement of a significant
deviation from statutory norms to all grounds for an election
contest under AS 15.20.540.
In this case, assuming the language of the postcard was
"intended to influence the election of a candidate," no
significant statutory deviation occurred. AS 15.56.010(a)(2).
The statute presumably requires that the postcard bear the words
"paid for by" and the sponsor's name and return address.14
However, the postcard identified its source, and also identified
the Alaska Federation of Natives (AFN) as a supporter of
Candidate Knowles. Thus, the apparent purpose of AS 15.56.010 --
to promote an informed electorate and to allow voters to evaluate
the solicitations they receive -- was substantially met. Cf.
Messerli v. State, 626 P.2d 81, 87 (Alaska 1980) ("Identification
of the source of advertising may be required as a means of
disclosure, so that the people will be able to evaluate the
arguments to which they are being subjected.") (quoting First
National Bank v. Bellotti, 435 U.S. 765, 792 n.32 (1978)).
Since distribution of the postcard did not
significantly frustrate the purposes of AS 15.56.010, it cannot
be said that the deviation from that statute was a "corrupt
practice . . . sufficient to change the results of the election"
for the purposes of AS 15.20.540. Even assuming the deviation
was sufficient to support a misdemeanor charge of violating AS
15.56.010, we hold that a technical failure to comply strictly
with that statute is not sufficient to invalidate ballots where
the purpose of the statute has been satisfied. See Carr, 586
P.2d at 625-26 (citing the "well-established policy which favors
upholding of elections when technical errors . . . do not affect
the result of an election," and recognizing that courts are
reluctant to permit a wholesale disfranchisement of qualified
voters where a reasonable construction of the statute can avoid
such a result). Consequently the failure to indicate on the
postcard who paid for it is not ground for an election contest
under AS 15.20.540(3) in this case. 2. Legality of
We must next consider whether mailing the postcards was
a corrupt practice on the theory that the postcards offered
something of value and were distributed with an intent to
influence the way voters cast their ballots, in violation of AS
15.56.030.15 In response the State asserts that the drawing
cannot have violated AS 15.56.030 because not only was
participation in the drawing not contingent on a vote for
Candidate Knowles, but drawing participants were not required to
vote at all. The State reasons that because it was not necessary
to vote to enter the drawing, entry in the drawing cannot be
construed as a payment in exchange for the participant's vote.
The trial court held that distributing the postcard "did not
constitute a corrupt practice," and granted partial summary
judgment to the State on that issue.
Insofar as is pertinent here, AS 15.56.030(a)(2) is
violated when a person " offers . . .  money or other
valuable thing  to a person  with the intent to induce the
person to vote for or refrain from voting for a candidate . . .
By prominently mentioning the AFN's endorsement of
Candidate Knowles, the postcard potentially encouraged recipients
to vote for a particular candidate. This facially non-neutral
message is evidence of an intent to induce persons to vote for a
person they might not otherwise have favored. This non-neutral
message distinguishes it from the North Slope Borough's
transportation assistance program. The drawing offer
consequently comes closer to offering a thing of value, a chance
to win one thousand dollars, to encourage a vote for a particular
candidate.16 We hold that the drawing offer potentially
violated AS 15.56.030(a)(2), because it was accompanied by a non-
neutral message. Given that message and the State's failure to
demonstrate that there was no intention to induce voters to vote
for a particular candidate, the trial court could not say as a
matter of law that the mailing did not violate AS
15.56.030(a)(2).17 The issue consequently could not be resolved
on summary judgment.
3. Effect of postcard on election
We next consider whether the State was entitled to
summary judgment on the alternative theory that the postcard did
not affect the outcome of the election. See Wright v. State, 824
P.2d 718, 720 (Alaska 1992) (holding that "this court is not
bound by the reasoning articulated by the trial court and can
affirm a grant of summary judgment on alternative grounds"). The
trial court did not reach this issue, having held as a matter of
law that the postcard did not constitute a corrupt practice. We
conclude that the record does not permit us to uphold the summary
judgment on this alternative ground.
Assuming the TCC/Doyon/FNA drawing solicitation
violated AS 15.56.030, to prevail at trial Contestants would have
to show that the violation was of a magnitude "sufficient to
change the results of the election." See AS 15.20.540(3);
Boucher, 495 P.2d at 80.
Contestants moved for summary judgment, and argued in
support that mailing the postcards to "thousands of individuals
is sufficient to permeate the entire election with misconduct . .
. ." Contestants did not then or later offer any evidence that
the mailing affected the outcome of the election.
In opposing Contestants' motion for summary judgment
and cross-moving for summary judgment, the State offered evidence
that fewer voters, and a lower percentage of the registered
voters, cast ballots in House District 36, the Rural Interior
District, in the 1994 general election than in the 1992 general
election. The State offered the affidavit of a State labor
economist who affied that "The Alaska Native population of House
District 36 includes American Indians in the Doyon Alaska Native
Regional Corporation (ANRC) region of the interior, as well as
Eskimos of the Calista ANRC Region." The economist identified
other House Districts with other regional corporations. The
State also offered the affidavit of TCC's general counsel. He
affied that TCC is a "consortium of Interior Native villages and
associations, and [is] the sponsoring regional organization under
the Alaska Native Claims Settlement Act" for Doyon, whose
shareholders and their descendants are Native members of the TCC
member villages and associations. From this evidence, the State
argued in support of its cross-motion that "District 36 includes
the Doyon region of the Interior" and that many of the voters
participating in the drawing voted in District 36. It argued
that this information established that the drawing did not affect
the election outcome.
Contestants have produced no evidence that the drawing
solicitation influenced enough votes to change the outcome of the
election. They simply assert that if the votes of all postcard
recipients were awarded to Candidate Campbell, the result of the
election would be changed. Although Contestants asserted in
their opening appellate brief that the number of voters who
received postcards can be determined exactly, so far as the
record reveals, Contestants never conducted the discovery or
analysis necessary to count the postcard recipients who voted and
the record permits no inference about how many postcard
recipients or drawing participants voted. Contestants candidly
stated during oral argument before us that the record contains no
evidence about how many people participated in the drawing. No
evidence in the record permits an inference that the drawing
actually affected the ballot cast by even one person who received
a postcard. Likewise, no evidence in the record permits an
inference about how many, if any, ballots were cast for Candidate
Knowles or any other candidate as a result of the postcard
The Contestants' failure to produce any such evidence,
however, is not necessarily determinative of this issue, because
we must here decide whether summary judgment should have been
granted to the State over the Contestants' arguments that there
were genuine fact disputes about the effect of the postcard on
In accordance with the principles now governing summary
judgment in Alaska, the State, as the cross-movant seeking
summary judgment, had the initial burden of making a prima facie
showing that the postcard mailing did not affect the election.
See Yurioff v. American Honda Motor Co., 803 P.2d 386, 389
(Alaska 1990); Bauman v. State, Div. of Family and Youth Svcs.,
768 P.2d 1097, 1099 (Alaska 1989) ("[T]he proponent of a summary
judgment motion has the initial burden of establishing the
absence of genuine issues of material fact and his or her right
to judgment as a matter of law."). See also Alaska R. Civ. P.
The facts submitted by the State in support of its
cross-motion were relevant, and would, if unexplained and
unrebutted, tend to support an inference the mailing did not
increase the voter turnout, and therefore did not affect the
election results. Nonetheless, the facts produced by the State
did not amount to a prima facie showing that the alleged
violation did not affect the election outcome. Simply showing
that fewer District 36 voters participated in the general
election in 1994 than in 1992 was insufficient because the State
offered no evidence that turnouts in the two elections could be
compared directly or that no other, independent circumstances may
have depressed the District 36 turnout in 1994 or increased it in
1992. It offered no evidence about how many Doyon shareholders
were registered voters in District 36, or how many Doyon
shareholders voted in either election in that or any other
district. Furthermore, the figures offered by the State
indicated that the percentage of District 36 registered voters
who voted in 1992 was lower than the statewide average that year,
but that the percentage turnout there in 1994 was higher than the
1994 statewide average, a phenomenon that may undercut the
State's assertion that the postcard did not influence the turnout
in that district. The State's own evidence did not require a
conclusion that the postcard did not influence the election
Moreover, the State's showing was not unrebutted.
Contestants offered an affidavit executed by a person identified
on Contestants' witness list as an expert in Alaska elections.
He affied that the 1994 voter turnout should be compared to the
turnout in 1990, since both were non-presidential election years.
That opinion was sufficient to cast into doubt any direct
comparison of voter participation in 1992 and 1994.
In a statement of genuine issues, Contestants asserted
that mailing the postcards was a "corrupt practice" and that
"corrupt practices" of TCC, FNA, and Doyon "injected extensive
bias into the results of the 1994 governors [sic] election."
They asserted the cash drawing introduced sufficient corrupt
practices into the election through extensive bias that "it could
and probably would change the result of the election if
eliminated." They also asserted that the corrupt practices "have
introduced extensive bias into the 1994 governors [sic] election
that requires a new election for the governor of Alaska."
We have stated that "every reasonable presumption will
be indulged in favor of the validity of an election." Turkington
v. City of Kachemak, 380 P.2d 593, 595 (Alaska 1963). See also
Hammond, 588 P.2d at 260 (although malconduct may have impeached
integrity of election process and placed true outcome "in doubt,"
malconduct not sufficient grounds for new election where more
concrete standards do not indicate that the votes affected are
sufficient to change the result of the election); Boucher, 495
P.2d at 86 n.20 ("The presumption of validity given to elections
and the diffidence with which the court attacks the results
thereof places a heavy burden on the trial judge."); Dale v.
Greater Anchorage Area Borough, 439 P.2d 790, 792 (Alaska 1968)
(election contestant must strictly observe contest procedures
because public policy demands that election results have
stability and finality).
Given our conclusion that it was error to grant summary
judgment to the State on the issue of whether the postcard
violated AS 15.56.030, we could affirm this portion of the
summary judgment only if we could conclude that the State made
out a prima facie showing that any violation was not of
sufficient magnitude to affect the election result. Because the
State, as the movant, did not make that showing, it did not
establish that it was entitled to judgment as a matter of law and
did not establish the absence of any genuine issue of material
fact. It was not entitled to summary judgment on this issue, and
we cannot affirm the judgment on this alternative ground on the
basis of the record before us.
C. Prudhoe Bay Absentee Voting Station
The State decided in August 1994 to close the Prudhoe
Bay absentee voting station, citing a decrease in transient
population which no longer justified the cost of sending election
workers to Prudhoe Bay and renting space to operate the absentee
voting station. The State requested preclearance from the United
States Department of Justice Civil Rights Division before it
closed the absentee voting station. The Department of Justice
replied that it had no objections to the closure. The State
notified the oil extraction employers in the area that the
station would be closed and trained these employers to assist
voters in registering and distributing absentee ballot
The day before the November 8 election, the Director of
Elections decided to open the Prudhoe Bay absentee voting station
after receiving several phone calls requesting that it be opened.
The Director of Elections sent two election workers to the voting
station on election day. The Division originally intended that
the voting station would operate on November 8 until 5:00 p.m.,
but at 4:30 p.m., after consulting with the Division of
Elections, the on-site election workers decided to extend the
voting station's hours until 8:00 p.m. to accommodate voters who
had been waiting in a two to three hour waiting line.
Approximately seventy-five people voted at the voting station
between 5:00 p.m. and 8:00 p.m., and the wait was reduced
significantly by 7:30 p.m. A total of 308 people voted at the
Contestants argue that the Division of Elections' last
minute decision to open the station "created a two to three hour
waiting period," raising a question of "how many Prudhoe Bay
workers wanted to vote but did not vote or could not vote due to
the unreasonable wait imposed by the State." Contestants offer
no evidence that voters could not vote because of the long wait,
but do provide affidavits of two Prudhoe Bay workers who affied
that they did not vote because they were unwilling to endure the
hours-long waiting period. The State argues that the Director of
Elections is given the authority to designate and supervise
voting stations and that the Director properly exercised this
discretion both in deciding to close the Prudhoe Bay station and
in directing the station's operation on election day.
We have never held that an "unreasonable" wait at an
absentee voting station, in itself, can be considered election
malconduct. Nor do Contestants cite any cases to support this
proposition. Moreover, it does not appear that the wait at the
absentee voting station resulted from a lack of training or from
the fact that the Director of Elections' decision to reopen the
absentee voting station was made at the "last minute," or that it
was otherwise "unreasonable."
The Director of Elections was not required to reopen
the absentee voting station at Prudhoe Bay. AS 15.20.045(b).18
As noted above, the State had decided to close the Prudhoe Bay
voting station before the August primary and had trained Prudhoe
Bay employers to assist voters in registering and distributing
absentee ballot applications. The affidavit of Mark Humphrey,
submitted by Contestants, provides evidence that voters at
Prudhoe Bay were aware that the Director of Elections had
previously decided not to operate the Prudhoe Bay absentee voting
station. Contestants do not allege that any voter was unable to
obtain, complete, or return absentee ballots by mail before the
election. The State made considerable efforts to insure that
Prudhoe Bay voters were aware well before election day that they
would need to vote by mail.
The State offered evidence that decisions of the
Division of Elections to reverse its original course and open the
absentee voting station, and then to extend the station's hours,
were made in good faith and were intended to accommodate, and in
fact did accommodate, voters who would not have been able to vote
because they had failed to return absentee ballots by mail. AS
15.20.081. Contestants have offered no facts creating a genuine
fact dispute about those matters.
Furthermore, although the decision to open the station
was made only the day before the election, Contestants do not
allege that an earlier decision would have alleviated the wait on
election day. Nor is there any evidence that the election
workers were inadequately trained or unable to perform their
duties. To the contrary, one of the employers which had
requested that the absentee voting station be opened wrote to the
Division of Elections commending the election workers. The
letter noted the hard work of the Division staff, and thanked the
Division for setting up the voting station on such short notice.
The employer stated that "everyone I spoke with was happy they
were able to vote."
In the context of an absentee voting station and under
the facts presented by both parties, the good-faith operation of
the Prudhoe Bay station is not malconduct even though voters had
a long wait. See Hammond v. Hickel, 588 P.2d at 259 ("evidence
of an election official's good faith may preclude a finding of
malconduct under certain circumstances") (citing Turkington, 380
P.2d at 595).
We hold that the Borough's transportation assistance
program did not violate AS 15.56.030(a)(2). We further hold that
it was error to grant summary judgment to the State on
Contestants' claim that the distribution of the postcard to Doyon
shareholders was a corrupt practice under Alaska's election laws.
We decline to affirm the summary judgment on that claim on an
alternative theory that the postcard did not alter the outcome of
the election since the State failed to meet its burden of proof
on this issue. Finally, we hold that the State's operation of
the Prudhoe Bay voting station did not constitute election
We consequently REVERSE that portion of the summary
judgment dismissing Contestants' claim regarding the postcard
sent to Doyon shareholders. This issue is remanded for further
proceedings not inconsistent with this opinion. We AFFIRM that
portion of the summary judgment dismissing all other claims
asserted by Contestants.
COMPTON, Justice, dissenting in part.
I dissent from section III.B.2 of the court's opinion.
In that section the court reverses the trial court's grant of
summary judgment in the State's favor on the issue of whether the
TCC/Doyon/AFN postcard mailing violated AS 15.56.030(a)(2), even
though Contestants never argued this issue on appeal. I would
hold that the issue of whether the postcard mailing violated AS
15.56.030(a)(2) should not be considered, because Contestants
failed to raise it.
In their brief, Contestants assert generally that
"[t]he mailing [of the postcard] itself constitutes federal
criminal violations under 18 U.S.C. section 597, [and] 42 U.S.C.
section 1973i(c). Additionally, it is a corrupt practice as
defined in A.S. 15.20.540, A.S. 15.56.010, and A.S. 15.56.030."
Contestants then assert specifically a violation of AS 15.56.010,
which requires the words "paid for by" on any communication
intended to influence an election. Following this, Contestants
focus entirely on 42 U.S.C. ' 1973i(c), the so-called federal
"cash for vote" prohibition. They cite federal cases and Federal
Prosecution of Election Offenses (5th ed. 1988), which analyzes
Contestants never assert that the cash drawing
announced in the postcard violates AS 15.56.030(a)(2), nor do
they assert that the alleged federal law violation is a violation
of AS 15.56.030(a)(2). Their general assertion, offered without
elaboration, that "[t]he mailing . . . is a corrupt practice as
defined in . . . A.S. 15.56.030" is the sum total of their
argument on this issue. We require more than this under the
waiver rule. See, e.g., Wirum & Cash Architects v. Cash, 837
P.2d 692, 714-15 (Alaska 1992) ("Where a point is not given more
than a cursory statement in the argument portion of a brief, the
point will not be considered on appeal.").
The court notes, as one justification for addressing
the purported violation of AS 15.56.030(a)(2), that the State
"presented its position" on the issue. Slip op. at n.15. While
it is true that in its argument the State cites to AS
15.56.030(a)(2) -- something Contestants never do -- it only does
so as part of its larger argument that the postcard mailing did
not violate the "corrupt practice" provision of AS 15.20.540(3).
Furthermore, the focus of the waiver rule is on whether the
proponent of a point has raised and adequately briefed it. The
State's reference to AS 15.56.030(a)(2) did not relieve
Contestants of their responsibility under the waiver rule to
raise and brief the purported violation of that provision if they
wished the court to consider it.
The other justification the court offers for addressing
the AS 15.56.030(a)(2) issue is that, by doing so, it may prevent
persons from "needlessly violat[ing] the statute and
jeopardiz[ing] future elections." Slip op. at n. 15. Yet, on
the "two issues critical to determining whether distributing the
postcard was a corrupt practice," id., the court (1) declines to
decide whether a cash-prize drawing is always an offer of a
"valuable thing;" and (2) remands the case for a determination of
whether AFN intended to influence voters to vote for a particular
candidate. Slip op. at 34 and n.16. The court announces no new
principle of law, nor does it resolve any of the key legal issues
arising under AS 15.56.030(a)(2); it simply holds that the trial
court erred in granting summary judgment in the State's favor on
the AS 15.56.030(a)(2) issue. The court therefore does not
accomplish what it sets out to do: In the future, a party
contemplating a cash-prize drawing scheme will still not know
whether such a scheme is permitted under AS 15.56.030(a)(2), and
may therefore "needlessly violate the statute."
I might be persuaded that a "public interest" exception
to the waiver rule should be adopted, were the court to propose
one. It may well be that litigants should not be deprived of
review of issues relating to strong public policy, affecting the
citizens of the state as a whole, simply because the issues have
not been adequately raised by counsel. On the other hand, in
this case the court has embraced once again the rule that "every
reasonable presumption will be indulged in favor of the validity
of an election," citing Turkington v. City of Kachemak, 380 P.2d
593, 595 (Alaska 1963). If we are to indulge every reasonable
presumption in favor of the validity of the election, the failure
of the Contestants to raise the AS 15.56.030(a)(2) issue must
constitute a waiver of that issue.
The court's resolution of the AS 15.56.030(a)(2) issue
is troublesome for reasons other than that it cannot be said
fairly that the issue was raised by Contestants. First, the
court provides virtually no guidance to the superior court on how
to address the issue on remand. For example, the court does not
declare whether the intent to induce is to be determined by
applying an objective or a subjective standard.
Second, the court holds that "there is no genuine
dispute regarding the value of the offer the postcards
transmitted in this case," slip op. at n.16, without any evidence
in the record that the cash drawing at issue is a valuable thing
to the target voting group. The court rests its holding on the
assumption that "[a]lthough the actual value of a chance to win
one thousand dollars is potentially small, depending upon the
number of drawing entrants, the perceived value of the chance to
win a one thousand dollar drawing may be considerably higher in
the eyes of potential participants." Id. In deciding previous
election contests, we have relied on expert testimony or other
evidence, rather than mere conjecture, to determine whether
election laws were violated. See, e.g., Boucher v. Bomhoff, 495
P.2d 77, 81 (Alaska 1972) (voiding vote on constitutional
convention referendum; decision based in part on expert testimony
that the misleading ballot language biased voters). Today the
court strays from this practice, and bases its holding that the
drawing offered a valuable thing on nothing more than its own
sense of what the drawing participants may have perceived.
After holding that there can be no genuine dispute that
the cash drawing in the present case was an offer of a valuable
thing, the court states, as previously noted, that it need not
decide whether a cash drawing is always an offer of a valuable
thing. Slip op. at n.16. If the court is not prepared to say
that a cash drawing is always an offer of a valuable thing, how
it can say, without supporting evidence, that the cash drawing in
this case is an offer of a valuable thing? If a cash drawing is
not always an offer of a valuable thing, then the question must
be factual. If so, its resolution should be left to the trial
This is the mischief played when courts take it upon
themselves to address issues to which the litigants have paid
scant, if any, attention. When there are no criteria to guide a
court in addressing an issue not raised by the litigants, "the
decision whether a litigant gets a new trial becomes wholly
arbitrary." Clark v. Greater Anchorage, Inc., 780 P.2d 1031,
1039 (Alaska 1989) (Compton, J., dissenting in part).
Contestants have not raised a claim that the postcard
mailing violated AS 15.56.030(a)(2). Their sweeping assertion
that the mailing constituted a corrupt practice under AS
15.56.030 does not ever address subsection (a)(2). They have
failed utterly to argue that the cash drawing was "money or
[an]other valuable thing" offered "with the intent to induce the
[voter] to vote for or refrain from voting for a candidate."
Because they have failed to argue this point, the court should
not consider it. I would affirm the judgment of the superior
1 The Contestants included as defendants: the State of
Alaska; John B. "Jack" Coghill, former Lieutenant Governor; and
Joseph L. Swanson, the Director of the Alaska Division of
Elections under Governor Walter J. Hickel (collectively "State").
In accordance with Alaska Civil Rule 25(d), the current
Lieutenant Governor and the Acting Director of the Division of
Elections, Fran Ulmer and David Koivuniemi respectively, were
substituted as defendants.
A recount requested by gubernatorial Candidate James O.
Campbell was completed on December 3, 1994; it determined that
Tony Knowles was elected by a margin of 536 votes. Candidate
Campbell is not one of the Contestants. Although given an
opportunity to do so, Contestants never moved for a preliminary
injunction, and conceded that Candidate Knowles was capable of
governing the State until there could be a new election.
2 Contestants also argue that the State committed
election malconduct by "disenfranchising" voters through its
treatment of absentee ballots and residency disputes in the state
Senate race for District J in Anchorage. All but forty of the
disputed District J votes were counted in the race for governor.
Contestants offer no evidence that substantiates a challenge to
the determination regarding the forty ballots, nor do they offer
any evidence that the alleged malconduct regarding these forty
ballots would have been sufficient to change the outcome of the
Because the gubernatorial election is the only race
challenged by Contestants, we need not consider any alleged
malconduct which did not affect the gubernatorial election.
3 AS 15.20.540 provides:
Grounds for election contest. A defeated
candidate or 10 qualified voters may contest
the nomination or election of any person or
the approval or rejection of any question or
proposition upon one or more of the following
grounds: (1) malconduct, fraud, or
corruption on the part of an election
official sufficient to change the result of
the election; (2) when the person certified
as elected or nominated is not qualified as
required by law; (3) any corrupt practice as
defined by law sufficient to change the
results of the election.
4 When reviewing a grant of summary judgment, we must
determine whether any genuine issue of material fact exists and
whether the moving party is entitled to judgment as a matter of
law. Wright v. State, 824 P.2d 718, 720 (Alaska 1992). If the
superior court's order granting summary judgment does not set out
the court's reasoning, we presume that the superior court ruled
in favor of the movant on all issues. Saddler v. Alaska Marine
Lines, Inc., 856 P.2d 784, 787 (Alaska 1993).
5 AS 15.56.030 provides in pertinent part:
(a) A person commits the crime of unlawful
interference with voting in the first degree
if the person
. . . .
(2) gives, promises to give, offers, or
causes to be given or offered money or other
valuable thing to a person with the intent to
induce the person to vote for or refrain from
voting for a candidate at an election or for
an election proposition or question . . .
. . . .
(b) Violation of this section is a corrupt
(c) Unlawful interference in the first
degree is a class C felony.
Contestants also allege that the program violates AS 15.56.020,
which pertains to campaign misconduct in the second degree.
However, Contestants have not alleged facts which would support
this claim. Nor have they briefed this issue either before the
superior court or this court. The argument is thus waived.
Wirum & Cash Architects v. Cash, 837 P.2d 692, 713-14 (Alaska
6 The record establishes that the market price of ten
gallons of gasoline in Barrow was approximately twenty-seven
dollars on November 8, 1994.
7 Cal. Elec. Code ' 18521 (West 1995) provides in
A person shall not directly or through any
other person receive, agree, or contract for,
before, during or after an election, any
money, gift, loan, or other valuable
consideration, office, place or employment
for himself or any other person because he or
any other person:
(a) Voted, agreed to vote, refrained from
voting, or agreed to refrain from voting for
any particular person or measure.
(b) Remained away from the polls.
(c) Refrained or agreed to refrain from
(d) Induced any other person to:
(1) Remain away from the polls.
(2) Refrain from voting.
(3) Vote or refrain from voting for any
particular person or measure.
Section 18522 provides in relevant part:
Neither a person nor a controlled committee
shall directly or through any other person or
controlled committee pay, lend, or
contribute, or offer or promise to pay, lend,
or contribute, any money or other valuable
consideration to or for any voter or to or
for any other person to:
(a) Induce any voter to:
(1) Refrain from voting at any
(2) Vote or refrain from voting at an
election for any particular person or
(3) Remain away from the polls at an
(b) Reward any voter for having:
(1) Refrained from voting.
(2) Voted for any particular person or
(3) Refrained from voting for any
particular person or measure.
(4) Remained away from the polls at an
8 42 U.S.C. ' 1973i(c) provides in pertinent part:
Whoever knowingly or willfully . . . pays or
offers to pay or accepts payment either for
registration to vote or for voting shall be
fined not more than $10,000 or imprisoned not
more than five years or both . . . .
9 See United States v. Saenz, 747 F.2d 930, 934 (5th Cir.
1984) (prospective voters offered welfare vouchers in exchange
for voting for defendant); United States v. Thompson, 615 F.2d
329, 330-31 (5th Cir. 1980), cert. denied, Solis v. United
States, 473 U.S. 906 (1985) (defendant candidate for sheriff
bought votes with liquor and cash and accompanied voters into
booth to insure compliance).
10 The Borough's program as implemented was not limited to
Native Americans, nor could it have been so limited consistent
with the requirements of the Fourteenth Amendment to the United
States Constitution or the Equal Rights Clause of article I,
section 1 of the Constitution of Alaska.
11 The record reflects three other programs that offered
potentially valuable consideration to persons who voted in the
1994 election. A private travel agent in Fairbanks gave $40 air
fare discounts to 120-25 customers presenting a 1994 ballot stub
on November 8 or 9, 1994. The Anchorage Chamber of Commerce
offered a drawing for various prizes, including two round trip
tickets, to persons submitting their ballot stubs; approximately
4,415 people entered that drawing. The Municipality of Anchorage
People Mover bus system accepted an unknown number of riders'
ballot stubs the day after the election in exchange for trips of
any length, all day. There is no indication in the record that
any of those programs was not candidate-neutral.
12 Contestants also argue that there was election
"malconduct" by State election officials under AS 15.20.540(1)
because the Borough's program violated federal law and State
officials approved that program. Having reviewed the record, we
are persuaded that there is no genuine fact dispute, and that no
State election official condoned or approved the program as it
was actually conducted by the Borough. The trial court did not
err in entering summary judgment against Contestants on this
13 AS 15.56.010(a)(2) provides that "[a] person commits
the crime of campaign misconduct in the first degree if the
knowingly prints or publishes an
advertisement, billboard, placard, poster,
handbill, paid-for television or radio
announcement or other communication intended
to influence the election of a candidate or
outcome of a ballot proposition or question
without the words "paid for by" followed by
the name and address of the candidate, group
or individual paying for the advertising or
communication . . . .
14 The State argues that AS 15.56.010 does not apply to
the postcard because the postcard does not encourage voting for
any particular candidate and because AS 15.56.010 does not apply
to mailings from corporations to their investors. It is
unnecessary for us to address those two arguments because we hold
that distributing the postcard in violation of AS 15.56.010 was
not a "corrupt practice" under AS 15.20.540.
Given our resolution of this issue, we do not find it
necessary to consider whether, in light of McIntyre v. Ohio
Election Commission, 115 S. Ct. 1511 (1995) (holding that an Ohio
statute prohibiting distribution of anonymous campaign literature
violated the First Amendment), AS 15.56.010 is valid. No party
argues that it is not.
15 The dissenting opinion suggests that we should refuse
to reach this issue, on the theory Contestants have not squarely
argued in their brief that the mailing of the postcard was a
corrupt practice under AS 15.56.030(a)(2).
This court has discretion to reach an issue which has
been inarticulately briefed by one party, especially where we,
the trial court, and the opposing party have all been adequately
notified that the matter is at issue on appeal. Ratcliff v.
Security Nat'l Bank, 670 P.2d 1139, 1141 n.4 (Alaska 1983).
Contestants' complaint and statement of points on
appeal raise the question of whether the Doyon postcard violated
AS 15.56.030. Contestants repeatedly invoke ' .030; they twice
quote ' .030(a)(2) in their opening appellate brief. Contestants
squarely argued that in the context of 42 U.S.C. ' 1973i(c) the
postcard offered something of value. In their memorandum
opposing the State's cross-motion for summary judgment,
Contestants argued that the postcard demonstrated an intent to
encourage people to vote for a particular candidate. These are
the two issues critical to determining whether distributing the
postcard was a corrupt practice in violation of AS
15.56.030(a)(2). The State presented its position on '
.030(a)(2) in its brief and memoranda before this court and the
While such a relatively oblique discussion of an issue
might not always be sufficient, under the facts of this case we
find that Contestants adequately raised the question of whether
mailing the postcards violated AS 15.56.030(a)(2). We would be
remiss in failing to reach this issue, especially considering
that if we do not, persons may needlessly violate the statute and
jeopardize future elections.
16 Although the actual value of a chance to win one
thousand dollars is potentially small, depending upon the number
of drawing entrants, the perceived value of the chance to win a
one thousand dollar drawing may be considerably higher in the
eyes of potential participants. No party has argued that a
chance to win one thousand dollars does not constitute an "other
valuable thing" under AS 15.56.030(a)(2). Cf. Naron v. Prestage,
469 So. 2d 83 (Miss. 1985) (approving a candidate's cash drawing
offer sent to registered voters). Given the State's failure to
assert the existence of a genuine issue of material fact in
response to Contestants' assertion (in the context of 42 U.S.C. '
1973i(c)) that the postcard offered something of value, we find
the dissenting words of Chief Justice Patterson in Naron
In my opinion, the offer of a chance to win
cash by pursuing the citizen's duty to vote
is little different from an offer to pay
cash, in whatever amount, for a citizen to
vote. The hope of winning something for
little, if any, cash outlay has great popular
appeal as is established by the growing
popularity of state lotteries for greater tax
469 So. 2d at 88. There is no genuine dispute regarding the
value of the offer the postcards transmitted in this case. We do
not find it necessary to decide here whether an offer of
participation in a cash-prize drawing is always an offer of an
"other valuable thing" under AS 15.56.030(a)(2).
17 Contestants also allege that the postcard violated 42
U.S.C. ' 1973i(c). As discussed in part A2, supra, violation of
a federal election statute is not an independent ground for an
election contest under AS 15.20.540(3).
18 AS 15.20.045(b) provides:
The director may designate by regulation
adopted under the Administrative Procedure
Act (AS 44.62) locations at which absentee
voting stations will be operated on election
day and on other dates and at times to be
designated by the director. The director
shall supply absentee voting stations with
ballots for all election districts in the
state and shall designate absentee voting
officials to serve at absentee voting