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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Miller v. Treadwell (12/22/2010) sp-6532

Miller v. Treadwell (12/22/2010) sp-6532

        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 

JOE MILLER,                                     ) 
                                                )       Supreme Court No. S-14112 
                        Appellant,              ) 
                                                )       Superior Court No. 
        v.                                      )       1JU-10-01007CI 
                                                ) 
MEAD TREADWELL, in his official                 )       O P I N I O N 
capacity as Lieutenant Governor,                ) 
STATE OF ALASKA, DIVISION                       )       No. 6532 - December 22, 2010 
OF ELECTIONS, and LISA                          ) 
MURKOWSKI,                                      ) 
                        Appellees.              ) 
                                                ) 
                                                ) 
LISA MURKOWSKI,                                 )       Supreme Court No. S-14121 
                                                ) 
                Cross-Appellant,                ) 
        v.                                      ) 
                                                ) 
JOE MILLER, MEAD TREADWELL, )
 
in his official capacity as Lieutenant          )
 
Governor, STATE OF ALASKA,                      )
 
DIVISION OF ELECTIONS,                          )
 
                                                )
 
                Cross-Appellees.                )
 
                                                )
 
_______________________________   )
 

                Appeal from the Superior Court of the State of Alaska, First 
                Judicial District, Juneau, William B. Carey, Judge. 

                Appearances: Thomas V. Van Flein, Clapp, Peterson, Van 
                Flein,    Tiemessen      &   Thorsness,     LLC,     Anchorage,      and 

----------------------- Page 2-----------------------

                Michael   T.   Morley,   pro   hac   vice,   Washington,   D.C.,   for 
                Appellant and Cross-Appellee Miller.  Joanne M. Grace and 
                Laura F. Fox, Assistant Attorneys General, Anchorage, and 
                Richard A. Svobodny, Acting Attorney General, Juneau, for 
                Appellees     and   Cross-Appellees      Treadwell     and   State  of 
                Alaska, Division of Elections.       Timothy A. McKeever and 
                Scott M. Kendall, Holmes Weddle & Barcott, Anchorage, for 
                Appellee     and   Cross-Appellant     Murkowski.       Thomas      P. 
                Amodio, Reeves & Amodio, LLC, Anchorage, for Amicus 
                Curiae Alaska Federation of Natives. 

                Before:     Carpeneti,     Chief   Justice,   Fabe,   Winfree,     and 
                Christen, Justices. [Stowers, Justice, not participating.] 

                PER CURIAM. 

I.      Introduction 

                This    case   presents    several    issues   of  constitutional     and   statutory 

interpretation that arise from the count of votes following the 2010 election for one of 

Alaska's two seats in the United States Senate.          Two of the contestants for that seat - 

Joe Miller, the Republican nominee, and Senator Lisa Murkowski, running as a write-in 

candidate - are parties to the lawsuit.        Without seeking a recount, Miller filed suit in 

superior   court   challenging   several   decisions  of   the   Alaska   Division   of   Elections   in 

counting the votes.      Murkowski intervened, challenging other vote-counting decisions 

of the Division.  Superior Court Judge William B. Carey upheld the Division's actions. 

Miller appeals, and Murkowski cross-appeals. 

II.     Longstanding Alaska Election Principles 

                In resolving the questions presented by the parties, we are governed by a 

number of longstanding principles that we have consistently applied to election issues 

in Alaska over the past 50 years. 

                                                 -2-                                            6532
 

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                 We start with the bedrock principle that "[t]he right of the citizen[s] to cast 

[their]   ballot[s]   and   thus   participate   in  the   selection   of   those   who   control   [their] 
government is one of the fundamental prerogatives of citizenship."1  The right to vote "is 

fundamental to our concept of democratic government."2                 "[It] encompasses the [voter's] 

right    to  express    [the  voter's]   opinion     and   is a   way   to  declare    [the   voter's]   full 
membership   in   the   political   community."3          We   articulated   this   principle   over   three 

decades ago in Carr v. Thomas, recognizing the profound importance of citizens' rights 

to   select   their   leaders   and   noting   that   "[c]ourts   are   reluctant   to   permit   a   wholesale 
disfranchisement of qualified electors through no fault of their own."4  In reviewing and 

interpreting   election   statutes,   we   have   uniformly   held   that   "[w]here   any   reasonable 

construction of [a] statute can be found which will avoid such a result, the courts should 
and will favor it."5      We have applied this principle throughout the years because we 

recognize that the right to vote is key to participatory democracy.  Guided by this polar 

principle, we declared in Edgmon v. State, Office of the Lieutenant Governor, Division 

of Elections that "the voter shall not be disenfranchised because of mere mistake, but [the 

         1       Carr v. Thomas, 586 P.2d 622, 626 (Alaska 1978) (quoting Sanchez v. 

Bravo, 251 S.W.2d 935, 938 (Tex. Civ. App. 1952)). 

        2        Dansereau v. Ulmer, 903 P.2d 555, 559 (Alaska 1995).  The United States 

Supreme Court recognized the principle that voting is a fundamental right, emphasizing: 
"When the state legislature vests the right to vote for President in its people, the right to 
vote as the legislature has prescribed is fundamental; and one source of its fundamental 
nature lies in the equal weight accorded to each vote and the equal dignity owed to each 
voter."  Bush v. Gore, 531 U.S. 98, 104 (2000). 

        3        Dansereau, 903 P.2d at 559. 

        4        Carr, 586 P.2d at 626. 

        5        Id. (quoting Reese v. Dempsey, 153 P.2d 127, 132 (N.M. 1944)). 

                                                    -3-                                               6532
 

----------------------- Page 4-----------------------

voter's] intention shall prevail."6  Most recently, in State, Division of Elections v. Alaska 

Democratic Party, we noted that "[w]e have consistently emphasized the importance of 
voter intent because the opportunity to freely cast [one's] ballot is fundamental."7 

                 It is in light of our consistent application of these cardinal principles that 

we examine the issues presented in this case. 

III.	   Voter Intent Is Paramount, And Any Misspelling, Abbreviation, Or Other 
        Minor Variation In The Form Of The Candidate's Name On A Write-In 
        Ballot Does Not Invalidate A Ballot So Long As The Intention Of The Voter 
        Can Be Ascertained. 

                 Joe Miller seeks an interpretation of election statute AS 15.15.360 that 

would disqualify any write-in votes that misspell the candidate's name.                       We do not 

interpret the statute to require perfection in the manner that the candidate's name is 

written   on   the   ballot.    Our   prior   decisions   clearly   hold   that   a   voter's   intention   is 
paramount.8     In light of our strong and consistently applied policy of construing statutes 

in order to effectuate voter intent, we hold that abbreviations, misspellings, or other 

minor     variations    in  the  form    of  the  name   of   a   candidate    will  be   disregarded     in 

determining   the   validity   of   the   ballot,   so   long   as   the   intention   of   the   voter   can   be 

ascertained. 

                 Miller points to language in AS 15.15.360(a)(11) providing that "[a] vote 

for a write-in candidate . . . shall be counted if the oval is filled in for that candidate and 

if the name, as it appears on the write-in declaration of candidacy, of the candidate or the 

        6        152   P.3d   1154,   1157   (Alaska   2007)   (internal   citations   and   quotations 

omitted). 

        7        Case   No.   S-14054,   Order   dated   Oct.   29,   2010   at   3   (internal   citations 

omitted). 

        8        Edgmon,   152   P.3d   at   1157   ("[W]e   have   consistently   emphasized   the 

importance of voter intent in ballot disputes."). 

                                                    -4-	                                             6532
 

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last   name   of   the   candidate   is   written   in  the   space   provided."  He   argues   that   this 

subsection, read in the context of other provisions of the statute, requires that a write-in 

candidate's name be written and spelled perfectly, even if the voter's intent to vote for 

a   particular    candidate     can   be  readily    ascertained.     But    when    read   as   a  whole, 

AS 15.15.360's purpose is inclusive, not exclusive; it is designed to ensure that ballots 

are counted, not excluded.          And this inclusiveness is consistent with the overarching 
purpose of an election: "to ascertain the public will."9 

                 Miller urges that only his interpretation of the statute will "preserv[e] the 

integrity of the electoral process as a whole."             But it is Miller's interpretation of the 

statute that would erode the integrity of the election system, because it would result in 

disenfranchisement   of   some   voters   and   ultimately   rejection   of   election   results   that 

constitute the will of the people.         We have consistently construed election statutes in 

favor of voter enfranchisement. 

                 Turning to the language of subsection (a)(11), it is evident that it does not 

require   exact   spelling.      We   agree   with   the   State   that   subsection   (a)(11)   concerns 

pseudonyms.  The "nickname" field on the declaration of candidacy form supports this 

interpretation.   If that field were not present, a candidate with a pseudonym might write 

only his or her legal name on the form, thus invalidating ballots with the candidate's 
pseudonym written in.10        The "nickname" field allows a candidate to ensure that his or 

        9       Boucher v. Bomhoff, 495 P.2d 77, 79 (Alaska 1972) (internal quotations and 

citation omitted). 

        10       Compare AS 15.15.360(11) (requiring write-in vote to include "name, as 

it appears on the write-in declaration of candidacy, of the candidate or the last name of 
the candidate"), with AS 15.15.030(4) (allowing the Director, in placing names on the 
ballot, to "include in the candidate's name any nickname or familiar form of a proper 
name of the candidate"). 

                                                    -5-                                              6532
 

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her pseudonym "appears on the write-in declaration of candidacy"11 so that the write-in 

votes    listing  that  pseudonym   will    count.   Thus,    the  word   "appears"    relates  to  a 

pseudonym's possible presence on the ballot, not the particular form of the vote, and 

demonstrates that the statute is inclusive - it is designed to include, rather than exclude, 

votes. 

               As we have recognized, "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."12  In order to ensure that each citizen's vote is as meaningful as every other vote, 

we must interpret the election statute to preserve a voter's clear choice rather than to 

disenfranchise that voter.     The State characterizes the standard urged by Miller as the 

"perfection standard," and we agree that such a standard would tend to disenfranchise 
many Alaskans on the basis of "technical errors."13 

               Alaskan      voters   arrive  at  their  polling   places   with   a  vast  array   of 

backgrounds and capabilities.   Some Alaskans were not raised with English as their first 

language.     Some Alaskans who speak English do not write it as well.            Some Alaskans 

have physical or learning disabilities that hinder their ability to write clearly or spell 

correctly.    Yet none of these issues should take away a voter's right to decide which 

candidate to elect to govern.        We must construe the statute's language in light of the 

        11     AS 15.15.360(a)(11). 

        12     Dansereau v. Ulmer, 903 P.2d 555, 559 (Alaska 1995); see also Bush v. 

Gore, 531 U.S. 98, 104-05 (2000) ("Having once granted the right to vote on equal terms, 
the State may not, by later arbitrary and disparate treatment, value one person's vote over 
that of another."). 

        13     See Carr v. Thomas, 586 P.2d 622, 625-26 (Alaska 1978) ("There is well- 

established     policy  which    favors   upholding    of  elections   when    technical   errors  or 
irregularities arise in carrying out directory provisions which do not affect the result of 
an election."). 

                                                 -6-                                           6532
 

----------------------- Page 7-----------------------

purpose of preserving a voter's choice rather than ignoring it.  As we have consistently 

ruled, we remain "reluctant to permit a wholesale disfranchisement of qualified electors 

through no fault of their own, and '[w]here any reasonable construction of the statute can 
be found which will avoid such a result, [we] should and will favor it.' "14 

                Our interpretation of AS 15.15.360 permitting abbreviations, misspellings, 

or other minor variations in the form of the name of a write-in candidate so long as the 

intention of the voter can be ascertained is also consistent with the federally mandated 

standard for counting the write-in votes of those voters living or serving in uniform 

overseas.   The Uniformed and Overseas Citizens Absentee Voting Act provides that in 

counting the ballot of a uniformed services voter or other voter who is overseas, "[a]ny 

abbreviation, misspelling, or other minor variation in the form of the name of a candidate 

or a political party shall be disregarded in determining the validity of the ballot, if the 
intention     of  the  voter   can   be   ascertained."15     The     Alaska    Administrative      Code 

incorporates this requirement into state law.16            Miller's proposed construction of the 

statute would require us to impose a different, and more rigorous, voting standard on 

domestic Alaskans than on those who are serving in the military or living abroad.                    Our 

construction   of   AS   15.15.360   treats   overseas   and   domestic   Alaskan   voters   equally, 

        14      Id. at 626 (quoting Reese v. Dempsey, 153 P.2d 127, 132 (N.M. 1944)). 

        15      42 U.S.C.  1973ff-2(c)(3) (2006). 

        16      See   6    Alaska    Administrative      Code    (AAC)     25.670(b)     (2010)    ("Any 

abbreviation, misspelling, or other minor variation in the form of the name of a candidate 
or political party will be disregarded in determining the validity of the ballot, if the 
intention of the voter can be ascertained.").  We do not reach the question as to whether 
any   provisions   of   federal   law   might   conflict   with   relevant   portions   of   the   Alaska 
Administrative Code, as it is not presented here. 

                                                   -7-                                             6532
 

----------------------- Page 8-----------------------

ensures that each write-in vote is treated equally and counted in the same manner, and 
avoids valuing one person's vote over that of another.17 

                 Finally, Miller suggests that our interpretation of AS 15.15.360 will lead 

to elections being decided by the unbridled discretion of election officials in determining 

voters' intent through visual inspection of write-in ballots.               But Miller concedes that 

other states use the same standard for counting write-in ballots and that Congress has 

mandated that standard.        We see no basis for Miller to argue that the application of the 

standard   in   this   election   violates   equal   protection   under   either   the   state   or   federal 

constitution.       First,   only   one   person,   the    Division's     Director,    made    the   initial 

determinations   whether   write-in   ballots   demonstrated   voter   intent   for   a   particular 

candidate;   this   avoids   any   constitutional   infirmities   that   might   arise   from   different 
reviewers applying the standard  differently.18 Second, the initial election results are 

subject to the Director's review during a recount.19 And, of course, the Director's final 

determinations are subject to judicial review.20 

                 We affirm the decision of the superior court on this issue. 

IV.	    The Manual Count Of Write-In Votes Complied With Alaska Law And Did 
        Not Violate Miller's Right To Equal Protection. 

                 Miller alleges that the Division's procedure to manually count the write-in 

votes violated 6 AAC 25.085.            He argues that this regulation requires the Division to 

manually examine and count only the write-in ballots the optical scanners had first 

        17       Cf. Bush, 531 U.S. at 104-09. 

        18       Cf. id. 

        19      See AS 15.20.480. 

        20      See AS 15.20.510. 

                                                    -8-	                                             6532
 

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validated.    Miller claims that his interpretation of 6 AAC 25.085 would best "facilitate 

fairness" under AS 15.15.030. 

                Neither this regulation nor the statute  Miller cites requires a particular 

procedure   for   counting   write-in   votes.      Alaska   Statute   15.15.030   addresses   ballot 

preparation. It directs that ballots must be prepared "to facilitate fairness, simplicity, and 

clarity in the voting procedure"; it does not apply to the method used to conduct a count 

of write-in votes. In addition, Miller's contention that the Division should have manually 

counted only those write-in ballots that were first validated by the optical scanner ignores 

the State's uncontested showing that the optical scanner neither sorts nor segregates 

ballots. The machine merely counts filled-in ovals indicating a vote for those candidates 

whose names appear on pre-printed ballots and for the "write-in" category. It is possible 

to quantify the number of ballots that an optical scanner deems invalid, but these ballots 

are not segregated by the machine.           Because the optical scanner counted a sufficient 

number of ballots for the "write-in" category in this election, it was necessary for the 

Division   to   conduct   a   manual   count   of   the   write-in   ballots   to   determine   for   which 
candidates the write-in ballots had been cast.21 

                Miller impliedly raises an equal protection argument under Bush v. Gore,22 

claiming that Division workers counted more write-in ballots than the optical scanner 
because they used a more lenient standard than the scanner.23   But there is no factual 

        21      See 6 AAC 25.085(b). 

        22      531 U.S. at 104-10. 

        23      The optical scanner detected 102,252 write-in votes. From all of the ballots 

cast in the election, the Division workers manually sorted out 103,805 ballots cast for a 
"write-in" candidate. From that total, the Division determined that 101,088 ballots were 
cast for Lisa Murkowski;          92,929 were unchallenged and 8,159 were challenged but 
counted. 

                                                   -9-                                             6532
 

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dispute that the Division workers looked at every ballot cast in the election to segregate 

the total ballots cast for "write-in" candidates.   In an affidavit to the superior court, 

Division Director Gail Fenumiai explained the three-step procedure as follows. First, "all 

the ballots cast in the election were sorted by 30 election board workers who worked in 

15 teams of two."  They sorted the ballots into five categories: 

              (1) ballots on which the oval was marked correctly next to a 
              candidate's name that was printed on the ballot; 

              (2) ballots on which no oval was marked for U.S. Senate, 
              more than one oval was marked for that race, or a name was 
              written in but the oval was unmarked; 

              (3) ballots on which the write-in oval was marked and the 
              written   name   was   "Lisa  Murkowski"     or  "Murkowski," 
              spelled correctly, and the ballot was not challenged by any 
              observer; 

              (4) ballots on which the write-in oval was marked and the 
              name written appeared to be a variation or misspelling of Lisa 
              Murkowski or Murkowski; this category also included any 
              ballot challenged by an observer in the sorting process; 

              (5) ballots on which the write-in oval was marked and the 
              name written in was not "Murkowski," "Lisa Murkowski," or 
              a variation thereof. 

              Significantly, the candidates had observers present who could challenge the 

category into which every ballot was sorted.  The Division instructed the workers who 

conducted the initial sort of the ballots not to proceed unless observers were present at 

the table from both the Miller and Murkowski campaigns. 

              After the ballots were sorted, the Director personally examined the ballots 

in category four - ballots on which ovals had been filled in but the handwritten name 

was a variation or misspelling of "Lisa Murkowski" and other ballots challenged during 

                                           -10-                                      6532
 

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the sorting process - to determine voter intent.24          The Director examined the ballots that 

were challenged because they contained misspellings of "Lisa Murkowski" or for any 

other reason. She permitted write-in ballots containing "minor misspellings and phonetic 

variations of 'Murkowski' to be counted for Lisa Murkowski when [she] determined that 

the voter clearly intended to vote for that candidate." The Director placed the ballots into 

one   of   two   envelopes:   "challenged   counted"   or   "challenged   not   counted."          If   the 

Director's decision regarding voter intent was not challenged, the ballot was placed in 

category three (write-in, oval filled, Lisa Murkowski properly spelled, not challenged) 

or category five (write-in, oval filled, a candidate other than Murkowski), depending on 

whether the Director decided to count it for Murkowski. 

                The Director examined ballots in category two in which no oval was filled 

in for the U.S. Senate race, and those ballots were not counted for any candidate.  This 

was true of ballots on which voters spelled "Lisa Murkowski" correctly but failed to fill 
in   the   oval.  The   Director   also   examined   "over-voted   ballots"25      in   category   two   to 

determine voter intent.  As Director Fenumiai explained: 

                 1)       I did not count ballots that had no oval filled in for the 
                U.S. Senate race, even if a name was written in. 

                2)       If a ballot had two ovals filled in for the U.S. Senate 
                race, I examined the ballot to see where the ovals appeared. 
                If the voter had filled in the oval by the name of a candidate 
                printed   on   the   ballot   and   also  by   the   write-in   choice,   I 
                counted the ballot if the voter wrote in the name of the same 
                candidate.      This is how Joe Miller received many of his 20 
                write-in votes.   I also counted ballots with two ovals marked 

        24      The Director was the only person who made the final decision regarding 

voter intent.     Given this protocol, we see no basis for any concern that inconsistent 
standards were used to determine the validity of ballots cast in this election. 

        25      This refers to a ballot with more than one oval filled in. 

                                                  -11-                                                6532 

----------------------- Page 12-----------------------

              when it was clear that the voter crossed out one of the ovals. 
              I did this regardless of whether the voter expresses an intent 
              to vote for a write-in candidate or for a candidate whose name 
              was printed on the ballot.   Otherwise, I did not add the ballot 
              to the count. 

              3)      The candidates' observers were able to challenge all of 
              these determinations. 

              As a result of this process, each candidate's vote tally was increased. The 

write-in vote count yielded the following tallies: 

              Lisa Murkowski, unchallenged                             92,929 
              Lisa Murkowski, challenged, counted                       8,159 
              Total counted for Lisa Murkowski                        101,088 

              Lisa Murkowski, challenged, not counted                    2,016 
              Joe Miller                                                    20 
              Scott McAdams                                                  8 
              Other registered write-in candidates                          53 
              Other miscellaneous names                                    620 

              Total write-in votes                                    103,805 

              The total number of write-in votes identified by the Division workers was 

103,805 but the optical scanner detected 102,252.  Miller claims that because the total 

write-in votes from the manual count - 103,805 - was higher than the number of write- 

in votes detected by the optical scanner, the workers must have applied "more lenient 

standards" that unfairly advantaged Murkowski. He claims that "it is unclear how many 

additional votes Joe Miller, or any other preprinted candidate, would have gained, had 

those same standards been applied to all the ballots in the election." But having carefully 

examined the record in this case, we conclude that the record does not support Miller's 

contention that ballots in category two were treated differently depending on whether 

they were cast for candidates whose names were  pre-printed on the ballot.         Observers 

                                            -12-                                       6532
 

----------------------- Page 13-----------------------

working on Miller's behalf had the opportunity to challenge the sorting of every ballot 

cast in the election, and every category-two ballot was individually examined, as were 
the ballots in category four.26     In addition, only one individual - the Director of the 

Division - looked at all of the ballots containing anomalies, including both over-votes 

and   under-votes.      We   fail   to   see   how  having   one   person   examine   all   overcount, 

undercount, and write-in ballots and all ballots challenged by either candidate is not a 

uniform standard.     Finally, the Director's examination resulted in additional votes for 

both Miller and Democratic nominee Scott McAdams, as well as Murkowski.  Because 

the Division applied the methodology described above to every precinct, we conclude 

that the Division's methodology gave all of the ballots - as well as all of the candidates 

- equal treatment. 

                For these reasons, we affirm the decision of the superior court on this issue. 

        26     We observe that even if Miller had demonstrated that the Division was more 

lenient in the threshold it used to validate votes than the optical scanner, the  difference 
he cites would not have changed the outcome of this election. 

               The optical scanners deemed a total of 2,882 votes for the U.S. Senate race 
to be invalid.    But the Division shows that the number of votes rejected by the optical 
scanner that could have been cast in Miller's favor is much smaller. The Division begins 
with the total number of ballots cast in this election (258,746) and subtracts the total 
number of votes cast for candidates on the pre-printed ballot (153,579) and the total 
number of write-in votes it identified in its manual tally (103,805).             The difference 
(258,746 - 257,384 = 1,362) is the Division's calculation of the number of votes rejected 
by the scanners that could have been cast in Miller's favor. 

                                               -13-                                           6532
 

----------------------- Page 14-----------------------

V.      The Division's Vote-Counting Procedures Are Not Regulations. 

                 Miller argues that the Division's write-in vote-counting methodology is a 

regulation,     or  set  of   regulations,    that  should    have   been    enacted    pursuant    to  the 
Administrative Procedure Act (APA).27   We disagree. 

                 The APA requires advance notice of a regulation before it can be applied 
in agency interactions with the public.28            Common sense statutory interpretations by 

agencies   do   not   require  regulations.29       By   contrast,   if   a   statutory   interpretation   is 

"expansive       or   unforeseeable,"      the   agency     may    be   required     to  promulgate      its 
interpretation      through    a regulation.30      The    Division's     statutory   interpretations     of 

AS 15.15.360 and 6 AAC 25.085 were common sense interpretations and were not 

required to be promulgated in regulations. We have previously noted that "[n]early every 

agency   action   is   based,   implicitly   or   explicitly,   on   an   interpretation   of   a   statute   or 

regulation authorizing it to act.   A requirement that each such interpretation be preceded 
by   rulemaking   would   result   in   complete  ossification   of  the   regulatory   state."31      We 

decline to depart from our previous decisions, and conclude that the Division did not 

violate the APA.   Accordingly, we affirm the decision of the superior court on this issue. 

        27       AS 44.62.010 et seq. 

        28       AS 44.62.190. 

        29       See Squires v. Alaska Bd. of Architects, Eng'rs & Land Surveyors, 205 P.3d 

326,    334-35    (Alaska     2009);  Alyeska     Pipeline    Serv.   Co.   v.  State,  Dep't    of  Envtl. 
Conservation, 145 P.3d 561, 573 (Alaska 2006);Alaska Ctr. for the Env't v. State, Office 
of the Governor, Office of Mgmt. & Budget, Div. of Gov't Coordination, 80 P.3d 231, 
243-44 (Alaska 2003). 

        30      Alyeska Pipeline, 145 P.3d at 573. 

        31      Id. 

                                                   -14-                                              6532
 

----------------------- Page 15-----------------------

VI.	    We   Affirm   The   Dismissal   Of   Miller's   Claims   For   Invalidation   Of   Two 
        Categories Of Votes: (1) Votes Allegedly Cast By Voters Whose Identities 
        Had Not Been Confirmed, And (2) Write-In Votes Allegedly Cast By The 
        Same Person(s) On Multiple Ballots. 

        A.      	Overview 

                This case comes to us under unusual circumstances.  The election was held 

on   November   2,   2010.    Without   seeking   a  statutorily   available   vote   recount   by   the 
Division32 or filing a lawsuit in state court to contest the election,33 on November 9 Miller 

filed a federal court lawsuit.  Miller sought declaratory and injunctive relief (1) stopping 

the Division from certifying the election results in favor of Murkowski, and (2) directing 

the Division to follow his interpretation of AS 15.15.360 by invalidating write-in votes 

"in which a candidate's name is misspelled or is not written on the ballot as it appears on 

the candidate's write-in declaration of candidacy."            On November 19 the federal court 

issued an injunction against certification, conditioned on Miller's filing a state court 

lawsuit by November 22 to resolve the disputed interpretation of AS 15.15.360. 

                Miller   filed   suit   in   superior   court   on   November   22,   seeking   not   only 

declaratory and injunctive relief regarding the interpretation of AS 15.15.360, but also 

regarding: alleged disparate treatment of ballots, violation of other election statutes, the 

validity of the Division's write-in vote-counting methodology under the Administrative 

Procedure Act, the validity of classes of votes the Division counted, and the validity of 

the election results.     Murkowski intervened in Miller's lawsuit, asking for declaratory 

and    injunctive    relief  regarding    the  interpretation    of  election   statutes,  as   well  as 

challenging the validity of two classes of votes not counted by the Division.                    After 

expediting the proceedings, on December 10, 2010, Superior Court Judge William B. 

        32      See AS 15.20.430-.530. 

        33      See AS 15.20.540-.560. 

                                                  -15-                                              6532 

----------------------- Page 16-----------------------

Carey   upheld   all   of   the   Division's   disputed   actions,   treating   some   claims   as   pure 

declaratory judgment requests and treating other claims as an election contest under 

AS 15.20.540. 

                 It may be that certain legal issues could properly be brought to us pre- 

election   or   during   an   election   with   appropriate   requests   for   declaratory   and   even 

injunctive   relief.   But   the   legislature   has  created   two   specific   legal   proceedings   for 

election challenges that would normally apply to many of the issues in this case - an 
election contest and a recount appeal.34  And as we have noted, "an election contest and 

a recount appeal are distinct proceedings."35 

                 An election contest is authorized by AS 15.20.540, which provides that "a 
contest of the election as a whole" is heard first by the superior court.36                 An election 

contestant must show "malconduct, fraud, or corruption on the part of an election official 

sufficient to change the result of the election" or "any corrupt practice as defined by law 
sufficient to change the results of the election."37 

                 By contrast, AS 15.20.510 provides for a recount appeal directly to our 

court to challenge the Director's decisions to count or not count votes during a recount 
of an election for, among other offices, the United States Senate.38   We have noted that 

        34       See  Willis v. Thomas, 600 P.2d 1079, 1081 (Alaska 1979) (identifying, 

describing, and comparing the two legal proceedings). 

        35      Id. 

        36      Id.;  see    also  AS     15.20.550    (providing     for  superior    court's   original 

jurisdiction). 

        37       AS 15.20.540. 

        38       AS 15.20.510 provides, in relevant part:          "A candidate . . . who requested 

a recount who has reason to believe an error has been made in the recount . . . involving 
                                                                                          (continued...) 

                                                   -16-                                               6532 

----------------------- Page 17-----------------------

"the   inquiry   in   a   recount   appeal   is   whether   specific   votes   or   classes   of   votes   were 
properly counted or rejected."39        Our review comes only after the Director "review[s] all 

ballots . . . to determine which ballots, or part of ballots, were properly marked and which 
ballots are to be counted in the recount[.]"40            Issues we have considered in a recount 

appeal "include the validity of punch cards and a variety of marks on ballots, the proper 

procedures for absentee voting and consequences for failure to follow those procedures, 
and registration requirements."41 

                 With this legal framework in mind, we consider Miller's claims that two 

classes of votes should not be counted. 

        B.       Multiple write-in ballots cast by the same person(s) 

                 Miller alleged in his complaint that the Division accepted and counted as 

valid "write-in votes in which the candidate's name apparently was not written on the 

ballot by the voter" in violation of AS 15.15.360(a)(10), which provides that "the voter" 
must write in the candidate's name.  In its summary judgment motion,42 the State noted 

        38       (...continued)
 

candidates for . . . Congress . . . may appeal to the supreme court . . . ."
 

        39       Willis, 600 P.2d at 1081. 

        40       AS 15.20.480. 

        41       Cissna   v.   Stout,   931   P.2d   363,   367   (Alaska  1996).   Miller's   claim   for 

declaratory judgment regarding the interpretation of AS 15.15.360 can easily be seen as 
in the nature of a recount appeal that should not be properly before us. Given the unusual 
circumstances   of   this   case,   we   nonetheless   chose   to   decide   the   legal   issues   raised 
regarding Alaska election statutes and regulations. 

        42       Under Alaska Civil Rule 56(c), summary judgment may be granted without 

trial if there are no genuine issues of fact and a party is entitled to judgment as a matter 
of law. 

                                                   -17-                                              6532
 

----------------------- Page 18-----------------------

that under AS 15.15.240 voters "can delegate that authority [to vote] to others - election 

officials or friends or family members - if they need assistance in writing in the name 
of a candidate."43     The State argued that Miller's claim was in the nature of an election 

contest and that he would have to present some evidence of both (1) improper conduct 

on   the   part   of   someone   and   (2)   an  indication   that   any   such   wrongful   conduct   was 

sufficient to affect the election's outcome. 

                 Miller submitted affidavits from observers of the ballot count attesting that 

in   some   precincts   many   write-in   ballots   appeared   to   have   been   written   in   similar 

handwriting.        He    argued    that  this   evidence     was   "sufficiently    suspicious     that   it 

legitimately raises the specter of voter fraud or other electoral improprieties."                    (This 

argument reflects that he considered his claim to be an election contest claim under 
AS 15.20.540, because misconduct is not an element of a recount appeal.44)                         He also 

argued that this evidence was sufficient to entitle him to further time for discovery 

regarding   the   identity   of   the   people   who   completed   the   ballots,   whether   voters   had 

actually requested assistance, why only a few people apparently filled in many ballots, 
and the total number of ballots that might have been affected.45 

                 The superior court denied Miller's request for discovery and granted the 

State's motion for summary judgment, noting that the admissible portions of Miller's 

        43       AS 15.15.240 provides, in relevant part, that "[a] qualified voter needing 

assistance in voting may request an election official, a person, or not more than two 
persons of the voter's choice to assist." 

        44       Willis,   600   P.2d   at   1081   ("[I]n   a   recount  appeal   .   .   .   [t]he   concept   of 

malconduct does not enter into the question[.]"). 

        45       Alaska Civil Rule 56(f) allows the superior court broad discretion to grant 

a party sufficient time to conduct discovery before opposing a summary judgment motion 
if the party is unable to marshal evidence in the time normally required to oppose the 
motion. 

                                                   -18-                                              6532
 

----------------------- Page 19-----------------------

evidence did not create a genuine issue of material fact regarding misconduct by anyone, 

and that it was not even sufficient circumstantial evidence to warrant discovery before 

opposing the summary judgment motion.  We agree. 

                 Alaska Statute 15.15.240 allows any qualified voter to ask for assistance, 

including   assistance   in   writing   in   the   name   of  a   write-in   candidate.  No   reasonable 

inference of misconduct can arise from the mere fact that the handwriting on multiple 

ballots appears to be from a small number of people.               And though we have interpreted 

Civil Rule 56(f) liberally to allow a litigant a meaningful opportunity to obtain evidence 
to present a case,46 pure speculation cannot support a fishing expedition for evidence to 

oppose   summary   judgment   in   an   election   contest.   We   affirm   the   superior   court's 

summary dismissal of this election contest claim. 

        C.       Ballots cast by allegedly unidentified voters 

                 Miller alleged in his complaint that the Division accepted and counted as 

valid   ballots   from  voters   who,   "according   to   the   official   election   registers   from  the 

precinct polling places, . . . neither showed proper identification nor were excused from 

showing   such   identification."       He   noted   that   Alaska   law   requires   a   voter   to   show 

identification   before   being   allowed   to   vote,  unless   an   election   official   waives   that 
requirement because the voter is known to the official.47 

                 In its motion for summary judgment, the State explained that although the 

voter registers contain spaces for election officials to specify how they verified each 

voter's identity, there is no statutory or regulatory requirement that the election officials 

        46       E.g., Kessey v. Frontier Lodge, Inc., 42 P.3d 1060, 1062 (Alaska 2002) 

("Generally, 'requests made pursuant to Rule 56(f) should be freely granted[.]' " (quoting 
Jennings v. State, 566 P.2d 1304, 1313 (Alaska 1997))); Gamble v. Northstore P'ship, 
907 P.2d 477, 485 (Alaska 1995); Munn v. Bristol Bay Hous. Auth., 777 P.2d 188, 193 
(Alaska 1989). 

        47       See AS 15.15.225. 

                                                   -19-                                              6532
 

----------------------- Page 20-----------------------

actually fill in this information.        Construing Miller's claim as an election contest, the 

State argued that Miller would have to produce some evidence both (1) that misconduct 

by election officials actually allowed unregistered persons to vote and (2) that the number 

of votes in question would affect the outcome of the election.  Miller responded that he 

was not bringing an election contest on this issue, but rather was "contesting the validity 

of particular ballots."  He argued that the failure of election officials to mark the register 

form for some voters was circumstantial evidence that "certain people may have voted 

without showing identification or being personally known to an election worker" and that 

he needed discovery to determine who they were. 

                 The superior court treated this claim as an election contest, denied Miller's 

request for discovery, and granted summary judgment in favor of the State.                      The court 

noted that there is no requirement that election workers fill out the register, that the 

failure to fill out the register did not create a reasonable inference of misconduct by 

election officials, and that there was no legitimate basis for the requested discovery based 

solely on the failure to fill out some of the registers. 

                 But   Miller   did   not   raise   his   claim   as   an   election   contest   within   the 

jurisdiction   of   the   superior   court.   He   instead   raised   a   challenge   to   "the   validity   of 

particular ballots," which is in the nature of a recount appeal that would come directly 

to us.    But he also did not ask for a recount and there is no recount decision about the 

validity    of   particular   ballots   for  us   to  review.    Miller    cannot    avoid    the  avenues 

established by the legislature to challenge elections: Miller asserted in the superior court 

that he did not bring an election contest, and he did not seek a recount by the Division. 

The only possible issue before us, then, is an issue not decided by the superior court: 

whether Miller is entitled to a judgment declaring that an entire class of ballots - those 

from voters for whom election officials did not mark on their registers how the officials 

verified the voters' identification - is invalid.            He is not entitled to such a judgment. 

                                                    -20-                                              6532
 

----------------------- Page 21-----------------------

We     affirm   the  superior    court's   dismissal    of  the  claim    because    there   is  no  legal 

requirement that an election official mark the register form for identification verification 

and the failure to do so does not invalidate a vote. 

VII.	   We   Do   Not   Reach   Questions   Regarding   Miller's   Motion   To   Amend   His 
        Complaint To Add Claims About Alleged Voting By Felons. 

                During the summary judgment briefing, Miller raised a new claim that an 

unknown number of felons ineligible to vote had actually voted in the election.                      This 

claim was discussed at oral argument before the superior court on the summary judgment 

issues. Shortly after the oral argument, Miller sought leave to file an amended complaint 

setting out this claim.  The superior court issued its order on summary judgment without 

ruling on the motion to amend.  In light of the expedited nature of this case, we accepted 

Miller's appeal of the summary judgment ruling without waiting for a final judgment 

from the superior court. 

                We now decline to reach whether the superior court implicitly denied the 

motion to amend and whether it was error to do so.              We will resolve all issues actually 

before us by way of this opinion, and we will return jurisdiction to the superior court to 

consider Miller's motion to amend.  But we note the following. 

                If Miller intends to pursue his superior court claim about improper voting 

by felons, he must do so as an election contest under AS 15.20.540.  He must allege and 

prove   the   necessary   elements   of   an   election   contest   claim,   including   the   level   of 

misconduct necessary to support the claim and that the votes in question are sufficient 

to change the result of the election.        In light of our other rulings and the current voting 

tally, it appears to us that the number of votes in question would have to be in the tens 
of thousands to change the result of the election.48          But it is difficult, at best, to quantify 

        48      Miller currently trails by over 10,000 votes.           Because any malconduct in 

                                                                                          (continued...) 

                                                   -21-	                                              6532 

----------------------- Page 22-----------------------

the number based on the record before us, and we leave that to the parties to resolve in 

the superior court should Miller decide to pursue this claim. 

                Finally, we note that an election contest does not bar certification of an 

election and that there are no remaining issues raised by Miller that would prevent this 

election from being certified.       Under AS  15.20.560, if an election contest ultimately 

changes the result of an election, judgment will be so entered and a new certification will 
be issued.49 

VIII.   The   Superior   Court   Did   Not   Err   In   Denying   Murkowski's   Motion   for 
        Summary Judgment On Her Claim That Write-In Ballots With Her Name 
        But Lacking A Filled-In Oval Should Have Been Counted. 

                The Division did not count a number of ballots for Murkowski because the 

voters had not filled in the ovals next to the write-in line, even though the voters had 

written in Murkowski's name.          Murkowski argues that these votes should have been 
counted for her.50  We disagree.   Alaska Statute 15.15.360(a)(10) states that "[i]n order 

to vote for a write-in candidate, the voter must write in the candidate's name in the space 

        48      (...continued) 

allowing ineligible felons to vote would not appear to bias any particular candidate, 
proportional reduction of votes would be the proper remedy if any ineligible felons were 
actually shown to have voted.         See Hammond v. Hickel, 588 P.2d 256, 260 (Alaska 
 1978). 

        49      AS 15.20.560 provides in relevant part that, at the conclusion of an election 

contest, "[t]he judge shall pronounce judgment on which candidate was elected . . . . The 
director shall issue a new election certificate to correctly reflect the judgment of the 
court." 

        50      Like Miller's claim regarding the class of votes by allegedly unidentified 

voters, this claim is in the nature of an election recount appeal.  Like Miller, Murkowski 
did not   request a recount.   We therefore consider this claim only as one for declaratory 
judgment   with   respect   to   the   interpretation of   AS   15.15.360's   provisions   regarding 
marking the ovals on ballots. 

                                                -22-                                           6532
 

----------------------- Page 23-----------------------

provided     and    fill   in   the   oval   opposite   the   candidate's   name."   (Emphasis   added.) 

Although AS 15.15.360(a) does not address spelling, marks that validly "fill in the oval" 

are subject to the requirements of AS 15.15.360(a)(1) and (a)(5), which state: 

                 (1) A voter may mark a ballot only by filling in, making "X" 
                 marks, diagonal, horizontal, or vertical marks, solid marks, 
                 stars, circles, asterisks, checks, or plus signs that are clearly 
                 spaced      in  the  oval   opposite     the  name     of  the  candidate, 
                 proposition, or question that the voter desires to designate. 
                 . . . . 

                 (5)   The   mark   specified   in   (1)   of   this   subsection   shall   be 
                 counted only if it is substantially inside the oval provided, or 
                 touching   the   oval   so   as   to   indicate   clearly   that   the   voter 
                 intended the particular oval to be designated. 

                 In other words, the statute mandates that the write-in voter mark the oval 

in some fashion; a blank oval will invalidate the vote.                   Writing in the name but not 

marking   the   oval   is   not   compliant   with   the   statute.     Murkowski   is   not   entitled   to 

declaratory judgment that AS 15.15.360 should be interpreted to excuse write-in voters 
from marking ovals as required by law.51 Accordingly, we affirm the decision of the 

superior court on this issue. 

IX.      Conclusion 

                 For the reasons set out above, we AFFIRM the decision of the superior 

court in all respects. 

         51      Murkowski also argues that the Division erred by not counting a number 

of   write-in   votes   for   "Lisa   M."   and   that  the   superior   court   erred   by   affirming   the 
Division's determination.           This claim is essentially a recount appeal that may only be 
brought to us after a recount by the Director, and is not an election contest within the 
jurisdiction   of   the   superior   court.    As   with   Miller's   claim   about   specific   votes   by 
allegedly unidentified voters, Murkowski's claim is not properly before us. To the extent 
she requests declaratory judgment regarding variations on write-in candidates' names, 
we have already addressed it. 

                                                     -23-                                               6532
 

----------------------- Page 24-----------------------

             There are no remaining issues raised by Miller that prevent this election 

from being certified. 

                                          -24-                                    6532
 
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