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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. DeNardo v. Municipality of Anchorage (01/14/2005) sp-5859

DeNardo v. Municipality of Anchorage (01/14/2005) sp-5859

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA

DANIEL DeNARDO and       )
DEBORAH LUPER,           )    Supreme Court No. S-11128
                              )
             Appellants,      )    Superior Court No.
                              )    3AN-03-06518 CI
     v.                       )
                              )    O P I N I O N
MUNICIPALITY OF ANCHORAGE     )
and NEIGHBORS FOR MARK        )    [No. 5859 - January 14, 2005]
BEGICH,                       )
                              )
             Appellees.            )
                              )




          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, John Suddock, Judge.

          Appearances:     Daniel  DeNardo,   pro   se,
          Appellant,  Anchorage.  Kenneth  P.  Jacobus,
          Kenneth  P.  Jacobus,  P.C.,  Anchorage,  for
          Appellant   Luper.   Frederick   H.   Boness,
          Municipal  Attorney, Anchorage, for  Appellee
          Municipality   of  Anchorage.    Jeffrey   M.
          Feldman,  Susan Orlansky, and Julie Rikelman,
          Feldman  & Orlansky, Anchorage, for  Appellee
          Neighbors for Mark Begich.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Eastaugh, Fabe, and Carpeneti, Justices.

          FABE, Justice.


I.   INTRODUCTION

          The  appellants  in this case challenge  the  order  in

which the candidates names were placed on the ballot in the  2003

Anchorage  mayoral election.  They also seek to undo the  passage

of an amendment to the Anchorage Municipal Charter due to alleged

procedural  defects.   We  affirm the superior  courts  grant  of

summary judgment to the appellees on all grounds.

II.  FACTS AND PROCEEDINGS

     A.   Facts

          On April 1, 2003, the Municipality of Anchorage held  a

general election. The election included races for mayor and three

school  board seats.  The ballot listed Mark Begich  first  among

the   mayoral  candidates.   The  election  also  submitted  four

propositions  to the voters for approval, including  the  one  at

issue  in this case, Proposition 2.  Proposition 2 was a  charter

amendment  limiting run-off elections to mayoral elections  where

no  mayoral candidate receives more than 45% of the vote.  Before

Proposition  2 was adopted, run-off elections in mayoral,  school

board,  and  assembly  races  were  required  when  no  candidate

received more than 50% of the vote.

          1.   Random selection of candidate placement on ballots

          Before  1996 the Municipality used a rotational  system

for  placement  of  candidate names  on  ballots.   In  1996  the

Municipality   changed  to  a  system  where  a  random   process

determines  a fixed order for placement of candidate  names.   In

the  April 2003 Anchorage mayoral election, candidate Mark Begich

occupied  the first position. Begich won the election,  receiving

45.03% of the vote.

          2.   Proposition 2

          The  initial  version of Proposition  2,  an  ordinance

referred to as AO 2002-79, provided that run-off elections  would

take  place only in mayoral elections where no candidate received

more than 50% of the vote.  The Anchorage Assembly held a meeting

on June 25, 2002, where many members of the public spoke about AO

2002-79.   The  assembly then submitted a revised version  of  AO

2002-79   providing  for  run-off  elections  where  no   mayoral

candidate  received more than 45% of the vote.  Like the  initial

version, the revised version repealed the requirement of  run-off

elections for other positions.  On July 7 and July 14, 2002,  the

assembly  published two notices in the Alaska Journal of Commerce

regarding  the  revised  version,  AO  2002-79(S).   The  notices

informed  the  public that a public hearing would take  place  on

July  16.  The notices described the proposition as permitting  a

mayoral  candidate to be elected with 45% of the vote  without  a

run-off   election.   At  the  July  16  public   hearing,   many

individuals testified for and against the ordinance; the chairman

limited testimony to those who had not testified on the issue  at

the June 25 hearing.

          After   the   assembly   passed  the   ordinance,   the

Municipality  placed  Proposition 2  on  the  ballot.   A  notice

appeared  in the Anchorage Daily News on February 15, 2003.   The

notice  ran again on March 31, 2003, the day before the election.

After  the  first notice, there was significant public discussion

regarding  Proposition 2s effective date and the 45% requirement.

Some  citizen groups urged voters to reject the measure  and  the

Anchorage   Daily  News  featured  articles  and   op-ed   pieces

discussing the impact of Proposition 2.

          3.   Election results

          Proposition  2  passed with 54.99% of voters  approving

it.  Mark Begich was elected mayor, receiving 45.03% of the vote.

Begichs closest competitor, George Wuerch, received 37.18% of the

vote.  Begich was sworn in as mayor on July 1, 2003.

     B.   Proceedings

          Daniel  DeNardo  filed a pro se complaint  against  the

Municipality  of Anchorage in superior court on  April  15,  2003

challenging  the  passage of Proposition  2.   Approximately  two

weeks   later,   Deborah  Luper  and  Rinna  Merculieff   (Luper)

intervened as plaintiffs, alleging that Proposition 2 was invalid

and  that fixing the order of the candidates names on the  ballot

was  improper.  Neighbors for Mark Begich (Neighbors)  intervened

as  a  defendant.   The parties filed cross-motions  for  summary

judgment.

          The  superior  court issued an order  granting  summary

judgment to the Municipality and Neighbors on the basis  that  no

significant  deviation  from the law  occurred  that  could  have

affected  the  elections results.  The court  entered  its  final

order on July 3, 2003.  This appeal followed.

III. DISCUSSION

     A.   Standard of Review

          This court reviews a grant of summary judgment de novo,

drawing  all  reasonable  inferences in favor  of  the  nonmoving

party.1   We uphold a grant of summary judgment if there  are  no

genuine  issues of material fact and the moving party is entitled

to  judgment  as  a  matter of law.2  We  apply  our  independent

judgment to legal and statutory interpretation issues.3

     B.   Random  Selection of Candidate Order on the  Ballot  Is
          Constitutional Under Sonneman.
          
          DeNardo  and Luper argue that the mayoral election  was

biased  and  unfair due to positional bias created by  the  fixed

position of the candidates names on the ballot.  They also  argue

that  this  courts holding in Sonneman v. State,4 that positional

bias  does not impermissibly burden the right to vote,  does  not

control  this  case.  We disagree.  This case  is  controlled  by

Sonneman,  and  we  therefore hold  that  the  placement  of  the

candidates names on the ballot was constitutional.

          In  Sonneman, we considered whether ending the practice

of  rotating  the  order of candidates names  on  state  election

ballots and replacing it with a random determination of the fixed

order  of  candidates  names  was constitutional.5   We  examined

whether the legislature is required to use the fairest method, or

whether  a  reasonable, nondiscriminatory method is  sufficient.6

We  emphasized  the  important regulatory interests  of  reducing

costs  and  preventing voter confusion and  then  concluded  that

those  interests justify the minimal burden on the right to  vote

imposed   by  the  random  selection  of  the  first  candidate.7

Although  we  recognized the possibility that fixed placement  of

candidates  names could result in a positional bias of  5-7%,  we

held  that  random  selection  of  fixed  ballot  positions   was

          nonetheless constitutional.8

          While  DeNardo  and  Luper  acknowledge  that  Sonneman

permits  random  selection of ballot positions in  state  primary

elections, they argue that the factors for the April 2003 mayoral

election  were  so  different that Sonneman should  not  control.

They first emphasize that the 5% positional bias did not actually

affect  the  Sonneman  election because the difference  in  votes

received  between  the first and second place finishers  in  that

case  was  substantially more than 5%.  Next, DeNardo  and  Luper

focus  on the fact that Begich achieved a 45% plurality  by  only

seventeen  votes, alleging that Begichs position  on  the  ballot

resulted in his victory.

          We  do not find this argument persuasive.  In Sonneman,

we  explicitly  considered the possibility that  positional  bias

could  determine the outcome of Alaska elections.  We noted  that

even if we accepted as true that positional bias affects 5-7%  of

the  votes  cast and that Alaska elections are often  decided  by

margins of less than 5%, the burden placed by random selection on

the right to vote is reasonable.9

          DeNardo  and  Luper  also focus  on  our  statement  in

Sonneman  that  we  would  not address  whether  the  effects  of

positional  bias  could  necessitate  a  stricter  review  if  it

affected a greater percentage of the votes.10  They argue that  a

greater  percentage of the votes was affected  in  the  Anchorage

election than in the state election, and that the entire election

was  determined  by  positional  bias.   This  interpretation  is

mistaken.   In Sonneman, we assumed a 5-7% bias,11 while  DeNardo

and  Luper claim only a 4-5% bias in elections generally.   Thus,

DeNardo and Luper allege that a smaller percentage of the vote is

affected  by  positional  bias  than  the  percentage  we  deemed

permissible in Sonneman.

          DeNardo   and   Luper  also  argue  that  Sonneman   is

distinguishable  because it resulted in  a  majority  winner  and

dealt with a primary election.  However, we never suggested  that

          our holding in Sonneman would be limited to primary elections or

to elections where the winner receives a majority of the votes.12

Because  Sonneman  governs this case, we  hold  that  the  random

selection  of  fixed positions for the candidates names  did  not

impermissibly  burden  the  right to vote  in  the  2003  mayoral

election.

     C.   There  Was  No  Significant  Deviation  from  the   Law
          Associated with Proposition 2.
          
            DeNardo  and  Luper contend that  Proposition  2  was

presented  to  the voters in a biased and confusing  manner.   We

address this claim in three parts.  First, we conclude that  this

is an election contest.  Next, we explain that it is subject to a

higher  standard  of  review because it is an  election  contest.

Finally, we apply the higher standard of review and conclude that

there  was  no  significant deviation from the law sufficient  to

warrant upsetting the election results.

          1.   This is an election contest.

          In  the  past we have drawn a distinction between  pre-

election  challenges  to  ballot initiative  language  and  post-

election challenges seeking to overturn election results.13   The

standard for post-election contests is higher than that for  pre-

election   challenges.14   The  different  standards  serve   the

important  purpose  of discouraging parties from  mounting  post-

election  challenges  just because they are displeased  with  the

results of a given election.

          In  Walleri  v.  City of Fairbanks, we  explained  that

[w]hether a cause of action should be deemed an election  contest

.  .  . turns on the remedy sought.  If granting the remedy would

defeat  the  public  interest in the stability  and  finality  of

election  results, it is appropriate to deem the cause of  action

an election contest and to require compliance with the procedures

for  such contests.15  DeNardo and Luper seek to void Proposition

2,  a remedy that would both overturn the proposition and mandate

a  runoff in the mayoral election.  Because their proposed remedy

implicates  the public interest in the stability and finality  of

          election results, we conclude that this is an election contest.

          DeNardo  and  Luper claim that it is  not  an  election

contest, citing the superior courts conclusion that they did  not

need  to  exhaust their administrative remedies.   But  they  are

mistaken.   The superior court, in deciding that judicial  review

was  not  precluded for failure to comply with  election  contest

procedures, emphasized that the challenge was justiciable  wholly

apart from the election itself and that the Municipality asserted

at  oral  argument that exhaustion of administrative remedies  is

not  a  condition precedent to judicial review.16   The  superior

courts  relaxation of the exhaustion requirement does not  answer

the  question whether a claim is an election contest  subject  to

the stricter standard of review.

          DeNardo  and  Luper also urge us to apply the  standard

set  forth in Alaskans for Efficient Government, a case in  which

we   struck  down  the  states  proposed  summary  for  a  ballot

initiative because it was inaccurate and potentially misleading.17

But  Alaskans  for Efficient Government involved  a  pre-election

challenge  to the ballot language.  This case resembles  Boucher,

where  we  reviewed the prefatory language of a referendum  post-

election  and applied the higher post-election standard requiring

proof   of  malconduct  on  the  part  of  an  election  official

sufficient to change the result of the election.18

          Because  DeNardo and Luper seek to overturn the results

of  the election, we conclude that their challenge is an election

contest.

          2.   The  standard of review for election  contests  is
               higher than that for pre-election contests.
               
          We  apply a higher standard of review for post-election

challenges  to  ballot  language than we  apply  to  pre-election

challenges.  The standard for pre-election challenges,  which  we

applied  in  Alaskans for Efficient Government, requires  that  a

ballot  summary  be impartial and accurate.19  In  contrast,  the

standard  for  post-election contests is  set  forth  in  section

28.100.010 of the Anchorage Municipal Code:

          A  candidate  or  ten  qualified  voters  may
          contest  the  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.
          
          This standard is identical to the standard contained in

the  Alaska  statute governing election contests, AS 15.20.540.20

We  construed  AS 15.20.540 in Boucher, where we  cautioned  that

persons seeking to contest an election must show more than a lack

of  total  and  exact  compliance with the  constitutionally  and

statutorily prescribed form of ballot.21  In Boucher, we  defined

malconduct as behavior resulting in a significant deviation  from

the prescribed form . . . of a magnitude sufficient to change the

result of the . . . election.22  Therefore, DeNardo and Luper must

satisfy  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.23

          3.   DeNardo   and   Luper  have  not  demonstrated   a
               significant deviation from the statutory directive
               sufficient to change the result of the election.
               
          DeNardo  and Luper assert that the title of Proposition

2  as  it  appeared on the ballot contained four specific defects

that  changed the outcome of the election.  They argue  that  (1)

the title failed to provide notice of its effective date; (2) the

titles  reference  to reducing costs was biased;  (3)  the  title

failed  to  make clear that the proposition would  eliminate  the

majority  vote  requirement; and (4) the title failed  to  inform

voters  that the proposition would eliminate run-off requirements

for  school  board  and  assembly members.   The  superior  court

rejected  all of these claims, concluding that DeNardo and  Luper

failed  to  demonstrate  a significant deviation  or  creat[e]  a

factual issue regarding likely alteration of electoral outcome.

          Proposition 2s title read:

          CHARTER  AMENDMENT  REPEALING AND  REENACTING
          CHARTER  SECTION 11.02(b) TO REQUIRE RUN  OFF
          ELECTIONS  ONLY  FOR  OFFICE  OF  THE  MAYOR,
          THEREBY   REDUCING  THE  COSTS  OF  RUN   OFF
          ELECTIONS
          
We now address each claim in turn.

               a.   Notice of effective date
                    
          DeNardo  and  Luper  first assert that  the  title  was

defective because it failed to notify voters that the proposition

would  become  effective for the election in which  it  appeared.

Ballot  requirements for municipal elections differ significantly

from  ballot requirements for state elections.  Unlike state law,

which  requires  that ballots in state elections contain  only  a

title  and  summary  of the proposition,24 the Anchorage  Charter

requires  ballot propositions for charter amendments  to  include

both  the current charter wording proposed to be changed and  the

proposed  new wording.25  The Anchorage Municipal Code  does  not

require  a summary of the proposition, and the proposition  title

need  only  be  informative, not comprehensive.26  The  Anchorage

Charter assumes that the proposition language itself will  inform

the  voters  about its content.  Here, the text of Proposition  2

stated  that the proposition would be effective for the April  1,

2003  election  if approved.  This language was included  on  the

ballot,  and  nothing in the Anchorage Charter or  the  Anchorage

Municipal Code required the language to be included in the  title

as well.

          DeNardo  and  Luper also contend that the text  of  the

proposition regarding the effective date was confusing.  The text

of  the  proposition read in part:  If approved by the voters  on

the  April  1,  2003 Regular Election, this proposition  will  be

effective for this election.  This language made clear to  voters

that the proposition would be effective for the April 1 election.27

Because  a title need not be comprehensive and because  the  text

stated  the  effective date, DeNardo and Luper did not  meet  the

high  burden  of  demonstrating a deviation  from  the  law  that

affected the election outcome.

               b.   Reference to reducing costs

          DeNardo  and Luper next claim that the titles reference

to  reducing costs is a blatant political statement which  biased

the  proposition in favor of an affirmative vote.  They point  to

our  decision in Alaskans for Efficient Government, in  which  we

invalidated  the  lieutenant  governors  ballot  summary  for   a

proposed initiative because it was potentially partisan and  one-

sided.28   But  it is not necessary to decide whether  the  cost-

reduction  language in the title for Proposition 2 was  one-sided

in  violation of the standard set forth in Alaskans for Efficient

Government, for that standard does not govern this case; Alaskans

for  Efficient Government dealt with a pre-election  challenge.29

Because this is a post-election challenge, we analyze whether the

language  rose to the level of malconduct effecting  a  deviation

from  the  law of a magnitude sufficient to change the result  of

the election.

          In Boucher, we invalidated election results because the

ballot  language implied that voters were required by  the  state

constitution to pass the proposition at issue.30  But in Boucher,

we  determined that the unauthorized prefatory language  [on  the

ballot] hindered the free expression of the will of the people in

a  manner  which  was  sufficient to change  the  result  of  the

referendum  election.31   Here, we cannot  say  that  the  ballot

language  hindered the free expression of the will of the  people

so  as  to  change  the election results.  In Burgess  v.  Alaska

Lieutenant  Governor  Terry Miller, we observed  that  statements

about a bills proposed effect do not introduce bias into the vote

as  long as the statements are accurate.32  As the superior court

determined,  it  is  reasonable to conclude  that  fewer  run-off

elections will in fact save money.  We find that the reference to

reducing  costs did not rise to the level of malconduct affecting

the outcome of the election.

               c.   Majority vote requirement

          DeNardo  and  Luper  also assert  that  the  title  was

          defective for failing to state that Proposition 2 would change

the charter to allow candidates to be elected by 45% of the vote,

rather  than  50%.   Again,  municipal  law  requires  only  that

proposition  titles  be objectively stated and  informative,  not

comprehensive.33  The ballot displayed both the text of the former

statute and the text of the proposed proposition, as required  by

the  Anchorage  Charter.34  While the title could have  made  the

content of the proposed charter amendment more clear, the  ballot

contained  everything required by the Anchorage Charter  and  the

Anchorage Municipal Code.  We find that failure to highlight  the

change in percentage did not amount to malconduct.

               d.   Elimination of run-off for school  board  and
                    assembly elections
                    
          Finally,  DeNardo and Luper contend that the title  was

defective  because it failed to state that the proposition  would

eliminate  run-off  elections  for  school  board  and   assembly

elections.   The  title  stated that it  would  require  run  off

elections  only  for  office of the mayor.   The  superior  court

rejected  the  appellants suggestion that the title  should  have

expressly  stated that it eliminated run-off elections in  school

board  and  assembly  elections,  characterizing  this  claim  as

exceedingly weak even in a pre-election challenge.

          Again, we analyze this claim under the stringent  post-

election  standard set forth in AMC 28.100.010 and in  Boucher.35

We  do  not  agree with the superior court that the  claim  would

necessarily  be weak in the context of a pre-election  challenge.

In  order  to  comprehend that there would no longer  be  run-off

elections  for school board and assembly elections,  voters  were

required  to compare the text of Proposition 2 with the  text  of

the   charter  provision  then  in  effect.   Voters  would  have

benefitted from an explanation of this change in the title.   But

the  deficiencies  in  the title do not  rise  to  the  level  of

malconduct.   As  discussed above, the Anchorage  Municipal  Code

does  not require proposition titles to be comprehensive.36  Both

the  text of Proposition 2 and the text of the charter as it then

          stood were included on the ballot, and voters had the ability to

discern  the  full  effect of the proposition  by  comparing  the

language  of the two provisions.  Because this omission  did  not

amount  to  a  significant  deviation  from  statutory  direction

sufficient  to change the outcome of the election, we decline  to

reverse the results of the election.

     D.   The   Municipality   Provided   Adequate   Notice   and
          Opportunity for Hearing Regarding Proposition 2.
          
          DeNardo and Luper contend that the Municipality did not

follow public notice and hearing requirements for the adoption of

Proposition 2.  The Anchorage Charter requires public notice  and

a hearing for the introduction and enactment of ordinances.37

          The  initial version of Proposition 2, then  listed  as

Anchorage  Ordinance  2002-79, provided  that  run-off  elections

would  take  place only in mayoral elections where  no  candidate

received more than 50% of the vote.  The assembly held a  meeting

on  AO  2002-79 on June 25, 2002, with many members of the public

speaking on the issue.  The Municipality issued a revised version

of  AO  2002-79,  called AO 2002-79(S), and ran  notices  in  the

Alaska  Journal of Commerce on July 7 and 14, 2002.  The  notices

informed the public that a hearing would be held on July 16.  The

notices   described  the  proposition  as  permitting  a  mayoral

candidate  to be elected with 45% of the vote without  a  run-off

election.   At  the July 16 public hearing, the chairman  limited

testimony to those who had not testified on the issue at the June

25 hearing.

          Luper and DeNardo argue that limiting testimony at  the

second  hearing  to  persons who did not  testify  at  the  first

hearing violated the notice and hearing requirements contained in

the   Anchorage  Charter.   The  superior  court  rejected   this

argument,  concluding that the limitation  on  testimony  at  the

second  hearing was a de minimis imposition on the public hearing

process,  and was not a significant enough deviation from  proper

practice,  standing  alone, to vitiate the election.   We  agree.

While  the  preferred  practice may have been  to  allow  limited

          testimony on the proposed change to the ordinance at the second

hearing, the record demonstrates that Lupers attorney did in fact

testify  at both hearings.38  Therefore, it does not appear  that

the  policy  was strictly enforced, and in any event it  did  not

amount  to  malconduct  on the part of municipal  officials.   We

conclude  that  the Municipality provided adequate public  notice

and  that the assemblys decision to limit testimony at the second

public hearing was not a significant deviation from the law.39

     E.   The  Anchorage  Charter Did Not Require a  Three-Fifths
          Majority Vote To Pass Proposition 2.
          
          DeNardo  and Luper claim that Proposition 2  diminishes

civil  rights, voting rights, and rights of political association

such  that  a  60%  majority is required to pass under  Anchorage

Charter  section  18.01.  Section 18.01 of the Anchorage  Charter

provides:

          Vote Required.
          
          This  Charter  may be amended only  upon  the
          concurrence  of a majority of  the  qualified
          voters  of  Anchorage voting  on  a  proposed
          amendment,  except that a proposed  amendment
          which would diminish any right referred to in
          article II or any provision of Section  16.02
          requires  approval  by  three-fifths  of  the
          qualified voters voting on the amendment.
          
          The superior court concluded that the 60% supermajority

requirement   did  not  apply  to  this  election   because   the

requirement  only  applies  to the diminishment  of  one  of  the

thirteen enumerated rights in article II.40  We agree.  Article II

of  the  Anchorage  Charter guarantees rights to  the  people  of

Anchorage  in addition to the rights guaranteed under the  United

States   and  Alaska  Constitutions.41   None  of  the   thirteen

enumerated rights relates to the voting rights at issue  in  this

case.42  Moreover, as the superior court concluded, if Proposition

2  truly  diminished rights protected by the  federal  and  state

constitutions, as DeNardo and Luper claim, the Municipality could

not enact the proposition by any percentage of the vote.  Because

the  supermajority requirement delineated in section 18.01 of the

          Anchorage Charter refers to the thirteen rights enumerated in

article II of the Anchorage Charter, we find that a majority vote

was appropriate.43

IV.  CONCLUSION

          We  conclude that random selection of a fixed candidate

order  on  the ballot did not impermissibly burden the  right  to

vote  in the 2003 mayoral election.  We also conclude that  there

was  no  significant  deviation from the law  that  affected  the

election outcome.  We therefore AFFIRM the superior courts  grant

of summary judgment to the Municipality and Neighbors.

_______________________________
     1     Nichols v. State Farm Fire & Cas. Co., 6 P.3d 300, 303
(Alaska  2000);  Moore v. Allstate Ins. Co., 995  P.2d  231,  233
(Alaska 2000).

     2     K&K Recycling, Inc. v. Alaska Gold, Co., 80 P.3d  702,
711 (Alaska 2003).

     3     Cook  Inlet Keeper v. State, 46 P.3d 957, 961  (Alaska
2002).

     4    969 P.2d 632, 641 (Alaska 1998).

     5    Id. at 634.

     6    Id. at 639.

     7    Id. at 640.

     8    Id. at 639 n.7.

     9    Id.

     10    Id.

     11    Id.

     12    See id. at 636-40.

     13    Compare Alaskans for Efficient Govt, Inc. v. State, 52
P.3d  732,  735  (Alaska  2002) (holding  that  petition  summary
language  must  be  impartial in a pre-election  challenge)  with
Boucher v. Bomhoff, 495 P.2d 77, 80 (Alaska 1972) (requiring post-
election  challengers to demonstrate malconduct on  the  part  of
election officials sufficient to change election results).

     14     See  Alaskans  for Efficient Govt, 52  P.3d  at  735;
Boucher, 495 P.2d at 80.

     15    964 P.2d 463, 466 (Alaska 1998).

     16     We  need not address the correctness of the  superior
courts  resolution of the exhaustion issue because neither  party
has raised it on appeal.

     17    52 P.3d at 737.

     18    495 P.2d at 80.

     19     52  P.3d  at 735 (applying the standard to  a  ballot
summary submitted by the lieutenant governor).

     20     AS  15.20.540  states:  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 . . . malconduct, fraud, or corruption  on  the
part  of an election official sufficient to change the result  of
the election.

     21    495 P.2d at 80.

     22    Id.

     23    Dansereau v. Ulmer, 903 P.2d 555, 559 (Alaska 1995).

     24    AS 15.45.180.

     25    Anchorage Charter  18.03.

     26    AMC 28.40.010(D) states:  [b]allots for propositions to
be  voted  on  shall  contain  only the  question  posed  by  the
proposition   without  explanation  preceded  by  an  objectively
stated,  informative caption or title for the proposition.   This
provision  was  amended  effective June 1,  2003,  to  require  a
summary   description  of  propositions  when  the  election   is
conducted using optical scanning equipment.  The full text of the
proposition  must  then  be included on  a  separate  explanatory
ballot.  AMC 28.40.010(G).

     27     Voters  also  benefitted from pre-election  publicity
about  the  election, including articles in the  Anchorage  Daily
News,  League  of  Women Voters pamphlets,  and  a  mailing  from
Alaskans  for  Responsible Government, all of which  pointed  out
that the proposition would take effect immediately.

     28    52 P.3d at 736-37.

     29    Id. at 732-33.

     30    495 P.2d at 81.

     31    Id. at 82 n.12.

     32    654 P.2d 273, 276 (Alaska 1982).

     33    AMC 28.40.010(D).

     34    Anchorage Charter  18.03.

     35    495 P.2d at 80.

     36    AMC 28.40.010(D).

     37     Section  10.01 of the Anchorage Charter  provides  in
relevant part:

               (b)   .  . . Following introduction  and
          upon approval of three assemblymen, the clerk
          shall publish a notice containing the text of
          the  ordinance or an informative  summary  of
          its contents, the time and place for a public
          hearing  on the ordinance, and the  time  and
          place  where  copies  of  the  ordinance  are
          available.  The public hearing shall be  held
          at  least seven days after publication of the
          notice.
          
     38     Kenneth Jacobus, an attorney for Luper, spoke at  the
June  25,  2002 assembly meeting and again at the July  16,  2002
hearing.  At the July 16 hearing, Jacobus said, I think you  know
my  position in favor of instant run off voting as being the best
solution  for  Anchorage.  But I am just going  to  address  this
plurality thing, should it be forty percent?  Forty-five percent?
Or  twenty-five? . . .  Jacobus went on to state his belief  that
without a majority requirement, one voter could decide the entire
election.

     39     DeNardo and Luper also contend that public notice was
inadequate  because the title of the adopted ordinance conflicted
with  the  text  of  the adopted ordinance.   The  title  of  the
ordinance stated that 50% of the vote would be required to  avoid
a  run-off  election, while the amended text only  required  45%.
DeNardo  and Luper argue that AO 2002-79 was not validly  adopted
and   Proposition  2  was  not  validly  placed  on  the  ballot,
preventing Proposition 2 from being validly enacted.  Again, this
oversight did not amount to a significant deviation from the law.

     40    Anchorage Charter article II.

     41    Id.

     42     Section  16.02 of the Anchorage Charter, which  deals
with utilities, is also not at issue in this case.

     43    The Municipality and Neighbors argue that section 18.01
of  the  Anchorage Charter violates article X, section 9  of  the
Alaska  State  Constitution  to the extent  that  it  requires  a
supermajority  to  amend any part of the  charter.   Because  the
supermajority  requirement in section 18.01 only applies  to  the
thirteen enumerated rights in Anchorage Charter article II, we do
not reach this question.