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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Nageak v. Mallott (8/31/2018) sp-7286

Nageak v. Mallott (8/31/2018) sp-7286

         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, email  

                                                                                      

         corrections@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



BENJAMIN N. NAGEAK,                                    )
  

                                                       )
       Supreme Court Nos. S-16462/16492/  

                  Appellant,                           )
       16494 (Consolidated)  

                                                       )
  

         v.                                            )
       Division of Elections Recount Appeal  

                                                       )
  

BYRON MALLOTT, Lieutenant                              )
       O P I N I O N  

Governor of the State of Alaska, and                   )
  

JOSEPHINE BAHNKE, Director of                          )
       No. 7286 - August 31, 2018  

the Alaska Division of Elections,                      )
  

                                                       )
  

                  Appellees,                           )
  

                                                       )
  

         and                                           )
  

                                                       )
  

DEAN WESTLAKE,                                         )
  

                                                       )
  

                  Intervenor.                          )
  

_______________________________ )
  

                                                       )
  

BYRON MALLOTT, Lieutenant                              )
  

Governor of the State of Alaska, and                   )
       Superior Court No. 3AN-16-09015 CI  

JOSEPHINE BAHNKE, Director of                          )
  

the Alaska Division of Elections,                      )
  

                                                       )
  

                  Appellants and                       )
  

                  Cross-Appellees,                     )
  

                                                       )  

         v.	                                           )  

                                                       )  


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

BENJAMIN N. NAGEAK, ROB                               )
  

ELKINS, ROBIN D. ELKINS,                              )
  

LAURA WELLES, and LUKE                                )
  

WELLES,                                               )
  

                                                      )
  

                  Appellees and                       )
  

                  Cross-Appellants,                   )
  

                                                      )
  

         and                                          )
  

                                                      )
  

DEAN WESTLAKE,                                        )
  

                                                      )
  

                  Intervenor.                         )
  

_______________________________ )
  



                  Appeal  in  File  No.  S-16462  from  the  Alaska  Division  of  

                                  

                  Elections.    Appeal  in  File  Nos.  S-16492/16494  from  the  

                  Superior Court of the State of Alaska, Third Judicial District,  

                  Anchorage, Andrew Guidi, Judge.  



                  Appearances:  Timothy A. McKeever and Stacey C. Stone,  

                                                        

                  Holmes Weddle & Barcott, P.C., Anchorage, for Appellant  

                                                         

                  Nageak and Appellees and Cross-Appellants Nageak, Elkins,  

                                    

                  Elkins, Welles, and Welles.  Laura Fox, Joanne Grace, and  

                             

                  Margaret       Paton      Walsh,      Assistant      Attorneys       General,  

                  Anchorage,        Elizabeth      M.     Bakalar,     Assistant      Attorney  

                  General, and Jahna Lindemuth, Attorney General, Juneau, for  

                  Appellees and Appellants and Cross-Appellees Mallott and  

                                 

                  Bahnke.  Thomas P. Amodio and Debra J. Fitzgerald, Reeves  

                                              

                  Amodio, LLC, Anchorage, for Intervenor.  



                  Before:  Stowers, Chief Justice, Winfree, Maassen, Bolger,  

                  and Carney, Justices.  



                  STOWERS, Chief Justice.  

                  WINFREE, Justice, dissenting in part.  



                                                        -2-                                                   7286
  


----------------------- Page 3-----------------------

I.        INTRODUCTION  



                   A very close Alaska Democratic Party primary election was held in House  



                                                     

District 40 in 2016 in which, after a recount, Dean Westlake was declared the victor by  



                                                                    

eight votes.  The defeated candidate, Benjamin Nageak, brought two legal challenges to  



                                                                                                   

the primary results.  He and four others contested the election  in  the superior court  



                   

pursuant to AS 15.20.540.  He also filed a direct appeal of the recount in this court  



                                                                                                            

pursuant to AS 15.20.510.  We stayed the direct appeal and, after a trial, the superior  



court granted relief on the election contest.  The court found that election officials in  



Shungnak,  who  gave  ballots  for  both  the  Alaska  Democratic  Party  and  Alaska  



                                                                                                      

Republican Party primaries to every voter, had committed malconduct that changed the  



                                                                                                        

outcome of the election.  The court ordered the Director of the Division of Elections to  



certify Nageak as the winner after proportionately reducing the votes from Shungnak.  



The Division and Westlake appeal the superior court's rulings against them.  Nageak  



cross-appeals the court's rulings against him.  We consolidated the appeal from the  



                                                                                                     

superior court in the election contest with the recount appeal from the Division, and we  



reversed  the  superior  court's  decision  and  reinstated  the  Director's  certification  of  



                                           

Westlake as the winner of the election.  We indicated that an opinion would follow.  This  



is our opinion.  



II.       FACTS AND PROCEEDINGS  



          A.       August 16, 2016 Primary Election  



                   These  appeals  concern  the  election  of  Dean  Westlake  as  the  Alaska  



                                                                                                               

Democratic  Party's  nominee  for  state  representative  from  House  District  40  in  the  



                           

August  16,  2016  primary  election.    House  District  40  consists  of  the  North  Slope  



Borough, the Northwest Arctic Borough, and part of the Unorganized Borough, an area  



                                                            -3-                                                      7286
  


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

                                    1  

                           

larger  than  most  states.     House  District  40  had  been  represented  by  Benjamin  N.  



Nageak, a Democrat who caucused with the Republicans in the legislature.  He was  



challenged in the 2016 primary by Dean Westlake, a Democrat supported by people and  



organizations associated with the Democratic Party.  There were no other candidates  



running for House District 40 representative in any other party's primary.  

                   The Division of Elections runs all state and federal elections in Alaska.2  



State law governs primary election contests, but parties choose who may vote in their  

primary   elections.3             The   Republican   Party   allows   only   registered   Republican,  



                                                                                       

Undeclared, and Non-Partisan voters to vote in its primary.  The Alaskan Independence,  



                                                                                                      

Democratic,  and  Libertarian  parties  allow  all  voters  to  vote  in  their  primaries.  



          1        The total area of House District 40 under the 2011 Redistricting Plan, which  



contained  only  the  North  Slope  Borough  and  the  Northwest  Arctic  Borough,  was  

 135,545.22 square miles.  See ALASKA  REDISTRICTING  BD .,  AMENDED PROCLAMATION  



                                                                       

H O  U  S  E       D I  S  T  R  I  C  T  S   :       H O  U  S  E       D I  S  T  R  I  C  T    4 0       ( 2 0 1 1 ) ,   

http://www.elections.alaska.gov/doc/maps/2011-districts/HD40.pdf  (district  for  2012  

                                                                                                                 

elections); U.S. Census Bureau, Population, Housing Units, Area, and Density:  2010  

                                                                                

- United States - County by State; and for Puerto Rico, AMERICAN   FACTFINDER ,  

https://factfinder.census.gov/bkmk/table/1.0/en/DEC/10_SF1/GCTPH1.US05PR  (last  

visited July 11, 2018).  Only four states are larger - Alaska (665,384.04 square miles),  

                                                                                                          

Texas (268,596.46 square miles), California (163,694.74 square miles), and Montana  

( 147,039.71  square miles).  U.S. Census Bureau, supra .  And the 2013 Redistricting  

Plan added precincts for the Allakaket, Bettles, and Hughes areas to House District 40,  

                                                          

substantially increasing the size of the district.  House District 40 and statewide district  

                                                                                

maps are attached in the appendix.  



          2        AS   15.10.105(a);   AS   15.15.010;   see   also   AS   15.30.110-.120;   AS  



 15.30.090.  



          3        AS 15.25.060(b); see also Cal. Democratic Party v. Jones, 530 U.S. 567  



(2000) (holding that political parties may refuse to participate in primaries in which  

voters can vote for any candidate regardless of party affiliation); O'Callaghan v. State,  

                        

Dir. of Elections , 6 P.3d 728, 730 (Alaska 2000) (applying this ruling to Alaska).  



                                                             -4-                                                      7286
  


----------------------- Page 5-----------------------

Consequently, the Division prepares two ballots for primary elections - a Republican  



ballot and a combined party ballot, known as the Alaskan Independence-Democratic- 



Libertarian ballot or ADL ballot.  Registered Alaskan Independence, Democratic, and  



                        

Libertarian voters may vote only the ADL ballot, while Republican, Undeclared, and  



Non-Partisan voters may choose to vote either the ADL or the Republican ballot.  



                                                                                   

                Voters in the House District 40 primary therefore could potentially choose  



one of two ballots.  The two ballots are reproduced below.  



                                            ADL ballot:  



                             United States Senator (vote for one)  



 Blatchford, Edgar                                                                        Democrat  

 Metcalfe, Ray                                                                            Democrat  

  Stevens, Cean                                                                          Libertarian  



                         United States Representative (vote for one)  



 Watts, Jon B.                                                                           Libertarian  

 Hibler, William D. "Bill"                                                                Democrat  

 Hinz, Lynette "Moreno"                                                                   Democrat  

 Lindbeck, Steve                                                                          Democrat  

 McDermott, Jim C.                                                                       Libertarian  



                            State Senator District T (vote for one)  



 Olson, Donald C. "Donny"                                                                 Democrat  



                       State Representative District 40 (vote for one)  



 Westlake, Dean                                                                           Democrat  

 Nageak, Benjamin P. "Piniqluk"                                                           Democrat  



                                                  -5-                                            7286
  


----------------------- Page 6-----------------------

                                              Republican ballot:  



                                  United States Senator (vote for one)  



  Murkowski, Lisa                                                                                      Republican  

  Kendall, Paul                                                                                        Republican  

  Lamb, Thomas                                                                                         Republican  

  Lochner, Bob                                                                                         Republican  



                             United States Representative (vote for one)  



  Young, Don                                                                                           Republican  

  Heikes, Gerald L.                                                                                    Republican  

  Tingley, Jesse J. "Messy"                                                                            Republican  

  Wright, Stephen T.                                                                                   Republican  

There were no Republican candidates for either House District 40 or Senate District T.  

                                                      



                   There are multiple ways to cast a ballot.  A voter may vote in person by  

paper ballot at a precinct on election day.4  

                                                                                                  

                                                          A voter may instead choose to vote in-person  



                                         

by touch screen machine.  If an election official doubts a voter's qualifications the voter  



                                                                 

will be required to submit a questioned ballot, which is placed in a separate envelope for  



                 5  

                    A voter who cannot go to the precinct because of a disability may submit  

later review.                                                                                            

a special needs ballot, which a designated representative delivers to the polling place.6  

                                 



A voter may cast an absentee ballot by mail by requesting a ballot be sent by mail and  

                                           



                                                                                   7  

then mailing back the ballot in an absentee ballot envelope.   A voter may also cast an  



         4         AS 15.07.010.  



         5        Id.  



         6         AS 15.20.072.  



         7         AS 15.20.081(a)-(e).  



                                                          -6-                                                    7286
  


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

absentee ballot in person with an absentee voting official or an election supervisor.8  



                                                                

                    The Director of the Division certified the results of the primary election  



contest between Westlake and Nageak on September 6, 2016.  The Director certified  



Westlake as the winner of House District 40 with 819 votes to Nageak's 815 votes, a  



                                                                                      

four-vote  margin  of  victory.    On  September  12,  2016,  after  conducting  a  recount  



                                                                                          

requested by Nageak, the Director again certified Westlake as the winner with 825 votes  



to Nageak's 817, an eight-vote margin of victory.  



                                                                                           

                   Nageak and four others filed an election contest complaint in the superior  



                                                          9  

court  against  the  Lieutenant  Governor   and  the  Director  (collectively  the  Division)  



                                        10  

pursuant to AS 15.20.540;                   Nageak also appealed the recount directly to this court  



                                       11  

pursuant to AS 15.20.510.                  Westlake joined both proceedings as an intervenor.  We  



          8        AS 15.20.061.  



          9        See AS 15.10.105(a) ("The lieutenant governor shall control and supervise  



the division of elections.").  



          10       AS 15.20.540(1) provides that "[a] defeated candidate or 10 qualified voters  



may contest the nomination or election of any person . . . upon . . . malconduct, fraud,  

                                                                                

or corruption on the part of an election official sufficient to change the result of the  

election."  The other election challengers that joined Nageak in filing the election contest  

                                                                                                    

case in the superior court were qualified voters pursuant to AS 15.20.540. 



          11        AS 15.20.510(2) provides that  



                    [a] candidate or any person who requested a recount who has  

                                                                   

                   reason to believe an error has been made in the recount . . .  

                    involving candidates for the legislature or Congress or the  

                    office of governor and lieutenant governor may appeal to the  

                    supreme court . . . .  The inquiry in the appeal shall extend to  

                                                                       

                   the  questions  whether  or  not  the  director  has  properly  

                                          

                    determined  what  ballots,  parts  of  ballots,  or  marks  for  

                    candidates on ballots are valid, and to which candidate . . . the  

                                                                                                       

                                                                                                           (continued...)  



                                                             -7-                                                       7286
  


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

stayed the recount appeal until the superior court could rule in the election contest, and   



we consolidated the recount appeal with the appeal of the superior court ruling.  



            B.          Nageak's Allegations Of Election Errors  



                        Nageak alleges myriad problems with the election.  His main contention is   



that election officials in Shungnak erred by giving all voters both the ADL and the  



                                                                    

Republican ballots.  Election officials in Shungnak gave all 50 in-person voters and one  



questioned-ballot  voter  both  ballots,  resulting  in  102  total  ballots  being  cast  from  



                                                       

Shungnak across the different primaries.  Westlake won the in-person vote in Shungnak  



with 47 votes to Nageak's 3.  The result of the questioned ballot is unknown as it was  



counted with questioned ballots from other precincts.  



                        Nageak also alleges problems with the two ballot system in Kivalina, where  



7  voters  insisted  on  casting  both  an  ADL  and  a  Republican  ballot.    Local  election  



                                                                                                                   

officials in Kivalina made each voter cast one of these ballots as an in-person ballot and  



                                                        

one as a questioned ballot.  In the initial vote tally, the Director did not count these 7  



                                                                                                           

questioned ballots, but in the recount the Director counted them.  Of these 7 ballots, 5  



were Republican ballots and 2 were ADL ballots.  Westlake and Nageak each received  



1 vote.  Westlake won Kivalina with 38 votes to Nageak's 22 votes.  



                                               

                        In  addition  Nageak  alleges  a  problem  with  special  needs  ballots  in  



Buckland.  A special needs ballot allows a voter who cannot go to the precinct because  



                                                                                                                                                         12  

                                                                                                                

of a disability to designate a representative to pick up the ballot and bring it to the voter. 



The voter completes the ballot and signs a voter's certificate with the representative  



            11(...continued)  



                        vote should be attributed.  



            12          AS 15.20.072(a)-(b).  



                                                                           -8-                                                                    7286
  


----------------------- Page 9-----------------------

                                                  13  

witnessing  the  voter's  signature.                    The  representative  then  returns  the  ballot  to  an  



                        14  

election official.          In Buckland 12 voters used special needs ballots.  Election officials  



served as both representatives and election officials.  Westlake won Buckland with 43  



votes to Nageak's 11 votes.  



                                                                            

                    Nageak alleges many more problems.  Nageak alleges that Ambler election  



                                                                                                15  

                                                                                                    This meant that the  

officials did not timely return election materials after the election. 



Director's initial election results relied solely on the report from the precinct on election  

                                                                             



         16  

night.         Nageak  alleges  that  in  Browerville  election  officials  required  Republicans  



                                                   

seeking to vote the ADL ballot to cast a questioned ballot.  The Director counted these  



                                                                                                                  

questioned ballots.  Nageak won Browerville with 276 votes to Westlake's 46 votes.  



Nageak also alleges that at least one convicted felon who was ineligible to vote voted,  



that voters in multiple precincts did not sign the precinct registers, that election workers  



                                                                        

in multiple precincts did not complete and sign the precinct registers, that questioned  



                                                                                                               

ballot voters did not sign the questioned ballot voter registers, that election officials did  



                                                                                     

not complete and sign the absentee voting accountability reports, that election officials  



did not request identification from voters, that election officials destroyed or failed to  



                                                                                                       

turn in ballot stubs, that election officials telephoned inaccurate results on election night,  



                                                                                            

that election officials did not properly tally votes or complete tally books, that election  



          13        AS 15.20.072(d).  



          14        AS 15.20.072(e).  



          15        Nageak's only evidence of this is that election materials sent  from Ambler  



by mail had not arrived in Nome as of September 6, 2016.  This alone does not support  

that election officials were untimely in sending the materials.  Further, the numbers from  

Ambler were available by the time of the recount.  



          16        AS 15.15.440 contemplates t  hat  election materials ma                        y not arrive in time  



and allows the Director to rely on a report from the precinct.  



                                                              -9-                                                       7286
  


----------------------- Page 10-----------------------

                                                                                     

officials incorrectly marked spoiled ballots, that election officials did not sign certificates  



                                                                                

of ballot counts, and that precincts had fewer than the statutorily required number of  



election officials.  The Division disputes some of these allegations, but these questions  



of fact are not material to our decision.  



          C.        Election Contest Trial In Superior Court  



                                                                                

                    The superior court held an expedited trial on Nageak's election contest  



                                                                             

complaint.  On October 6, 2016, the court issued a written opinion ordering the Director  



                                                                                      

to decrease Westlake's vote total by 12 and Nageak's  vote total by 2 and to certify  



                                  

Nageak as the winner of the primary.  The court ruled against the Division in its actions  



                                                                                

in counting all votes from Shungnak and in counting the questioned ballots of the voters  



                                                             

who voted twice in Kivalina.  The court ruled in favor of the Division on all of Nageak's  



other arguments.  



                                                                                                                      

                    In addressing the double voting in Shungnak, the superior court ruled that  



                                                                                     

"[t]he actions of the election officials . . . violated clearly established constitutional rights  



as well as the requirements of statutory law" and that "[t]he actions biased the vote  



                                                                                                                     

because they occurred in a precinct that lopsidedly favored Mr. Westlake."  It also found  



"that election officials in Shungnak acted in reckless disregard of the requirements of  



                      

law" because "[t]hey did not participate in any advance training offered by the Division  



for the 2016 election; they did not review the materials sent to them; they did not review  



                                                                                                           

and follow the instructions on the ballot choice poster and placards sent to them; and they  



                                                                

knowingly gave every voter two ballots."  The court made these findings "purely on the  



basis of [the election officials'] actions" in receiving these materials but nonetheless  



handing out two ballots, finding "[t]his conduct cannot be characterized as an 'honest  



mistake.' "  



                                                           

                    The superior court next considered whether the malconduct by election  



                                           

officials changed the result of the election and concluded that it did.  Two people who  



                                                              -10-                                                         7286
  


----------------------- Page 11-----------------------

                                                                                                            

were accepted as expert witnesses testified at trial. Randolph Ruedrich, a former Alaska  



                                                                                                             

Republican Party chair, testified for Nageak.  John Henry Heckendorn, a partner in the  



firm that managed Westlake's campaign, testified for Westlake.  



                    Ruedrich  testified  that  an  average  of  12.75  Shungnak  voters  chose  



                                                                                  17  

Republican  ballots  in  primary  elections  since  2008.      He  proposed  that  the  court  



                                                                                                              

proportionately reduce the vote totals of the candidates in Shungnak by 12.75 votes to  



approximate what would have happened if Shungnak voters had been forced to choose  



                                                               

between ballots in this election, but for the error in giving all Shungnak voters both  



                                                                   

Republican and ADL ballots.  This leads to a reduction of 11.99 votes from Westlake and  



0.76 votes from Nageak.  



                                                                 

                    Heckendorn testified that the 2016 primary election was most like the 2012  



                                                                                                             

primary election in that in both years there were no seriously competitive contests on the  



                                                                                           

Republican  ballot  and  there  were  competitive  contests  on  the  ADL  ballot.    He  also  



                                                                                                   

presented a spreadsheet of the percentage of voters in District 40 as a whole who chose  



ADL  ballots  in  the  past  four  primary  elections.    This  spreadsheet  showed  that  the  



                                                                                                          

percentage of voters who chose the ADL ballot varied significantly  from election to  



                                                                        

election, but it showed that the percentage of voters in House District 40 excluding  



Shungnak who chose the ADL ballot in 2016 was almost identical to 2012, another  



                                                                                                                 

election where there were no competitive contests on the Republican ballot. He therefore  



proposed that the court should use the percentage of voters who chose the ADL ballot  



in  Shungnak  in  2012  to  estimate  the  number  of  voters  who  would  have  chosen  the  



                                                                         

Republican  ballot  in  2016  but  for  the  error  in  giving  all  Shungnak  voters  both  



Republican and ADL ballots.  



          17        The number of voters who chose each ballot is unavailable.  Instead both  



parties have looked to the race on each ballot with the most total votes cast and accepted  

                                                                                                                

this as the number of voters who chose to vote that ballot.  We do so as well.  



                                                              -11-                                                         7286
  


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

                                                                                                         

                     The superior court credited the testimony of Ruedrich. The court explained  



that Ruedrich "performed a precinct-level analysis of how the issuance of two ballots  



                                                                              

affected the vote," while Heckendorn "presented a mathematical 'what if' analysis of the  



                                                                                                    

overall District 40 vote" and "[i]n a conspicuous omission . . . did not present an analysis  



                                                                                                               

of the Shungnak precinct vote."  Since Ruedrich's method of averaging the total voters  



                                                                                                                     

choosing the Republican ballot in past elections resulted in Westlake losing 11.99 votes  



and Nageak losing 0.76 votes, and since the election was decided by only 8 votes, the  



                                                                                                               

court concluded that the double voting in Shungnak changed the result of the election.  



                                                                                                                           

It ordered the Director to reduce Westlake's vote total by 11 and Nageak's vote total by  



1.  



                                                                                                      

                     Regarding the Kivalina questioned ballots, the court heard testimony from  



              

election officials that tended to suggest the voters who had insisted on casting two ballots  



                                                                                      

cast their first-choice ballot as an in-person ballot and their second-choice ballot as a  



                                                        

questioned ballot.  The court ruled that the Director erred in counting the questioned  



                                                                  

ballots.  Since one questioned ballot was for Westlake and one for Nageak, the court  



ordered the Director to reduce each candidate's vote total by one vote.  



                                                                                            

                    As to the Buckland special needs ballots, the court found that nothing in  



                                        

AS 15.20.072 governing special needs ballots prohibits an election official from also  



serving as a special needs voter's personal representative.  The evidence in the record  



showed that the Division substantially complied with the statute's requirements.  



                     With respect to Nageak's other alleged errors, the court ruled that they  



                              

"d[id]  not  show  a  significant  deviation  from  statutory  and  constitutional  norms"  or  



                                                                                              

"knowing or reckless indifference to election laws" and that they "did not result in any  



                                                      

bias for one candidate or another.  In short, these irregularities were not [systemic], and  



                                                                

were instead, isolated and random."  The court therefore ruled against Nageak on all his  



other alleged errors.  



                                                               -12-                                                          7286
  


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

                  The Division and Westlake appeal the superior court's rulings against them.  



Nageak cross-appeals the court's rulings against him.  



         D.       Recount Appeal  



                                                                                   

                  Nageak also appeals the Division's recount.   He argues that we should  



                                                                                

exclude all 51 votes from Shungnak because they were cast in violation of the law.  



                                                                                      

Alternatively, he argues that we should apply a proportionate reduction analysis as the  



                                                                                 

superior court did in the election contest.  He argues that we should exclude the in-person  



                                                          

and questioned ballots of the voters who chose to cast two ballots in Kivalina because  



casting two ballots violates the law.  And he argues that all special needs ballots in  



Buckland should not be counted.  



                                                                                           

         We consolidated this appeal with the appeal of the superior court judgment in the  



election contest.  In ruling on this recount appeal we have  considered the record as  



presented by the parties, which includes all records and transcripts from the superior  



court  trial  on  the  election  contest  complaint.    The  material  facts  in  the  appeal  are  



undisputed.  



         E.       This Court's Order  



                                                  

                  On October 12, 2016 we issued an order reversing the superior court's  



decision with respect to the double voting in Shungnak and reinstating the Director's  



certification of Westlake as the winner of the election.  We affirmed the superior court's  



decision with respect to all other questions.  Our order is attached in the appendix to this  



opinion.  We stated in our order that a written opinion explaining the order would be  



forthcoming.  This opinion now explains our earlier order.  



                                                        -13-                                                   7286
  


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

III.     STANDARD OF REVIEW
  



                  A recount appeal reviewing the Division's determination is under our direct  



                             18  

                                                                     

appellate jurisdiction.         "We exercise independent judgment when interpreting statutes  



which do not implicate an agency's special expertise or determination of fundamental  

policies."19  



                  Whether  the  conduct  of  election  officials  constitutes  malconduct  and  



                                                      

whether that malconduct was sufficient to change the result of an election are questions  



          20  

                "We  review  questions  of  law  de  novo,  'adopting  the  rule  of  law  most  

of  law.                          

persuasive in light of precedent, reason, and policy.' "21  We review underlying findings  

                                            



of fact for clear error, which "exists when 'our review of the record leaves us with the  

definite and firm conviction that the superior court has made a mistake.' "22  



IV.      DISCUSSION  



                  This  opinion  addresses  both  the  appeal  from  the  superior  court  in  the  



                                                      

election contest and the appeal from the Division in the recount.  In Willis v. Thomas we  



outlined the difference between an election contest and a recount appeal:   



         18       Cissna v. Stout, 931 P.2d 363, 366 (Alaska 1996).  



         19       Id (citing Keane v. Local Boundary Comm'n , 893 P.2d 1239, 1241 (Alaska  



1995)).  



         20       Hammond v. Hickel , 588 P.2d 256, 258 (Alaska 1978) ("This ultimate legal  



conclusion is necessarily predicated on two lesser, but critical conclusions of law:  (1)  

a  finding  of  malconduct  on  behalf  of  election  officials  and  (2)  a  finding  that  such  

malconduct was sufficient to change the result of the election.").  



         21       Comsult  LLC v.  Girdwood Mining Co., 397 P.3d 318, 320 (Alaska 2017)  



(quoting Girdwood Mining Co. v. Comsult LLC, 329 P.3d 194, 197 (Alaska 2014)).  



         22       Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc. , 355 P.3d 503, 508  



(Alaska 2015) (quoting Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006)).  



                                                       -14-                                                  7286
  


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

                    In   an   election   contest   where   no   fraud,   corruption   or  

                                                     

                    ineligibility of a party is alleged, the evidence presented must  

                                             

                    demonstrate the existence of malconduct sufficient to change  

                                                                  

                    the results of the election. . . .  In contrast, the inquiry in a  

                                                                                 

                    recount appeal is whether specific votes or classes of votes  

                    were   properly   counted   or   rejected.                     The   concept   of  

                    malconduct does not enter into the question, except insofar as  

                                                           

                    particular acts or shortcomings of election officials may have  

                                                                                                    [23] 

                    resulted in the improper counting or rejecting of votes.  



                                                                                   

A recount appeal may necessarily involve going beyond the four corners of the ballot "to  



ensure that a vote was cast in compliance with the requirements of Alaska's election  



         24  

                                                            

laws."        But this inquiry is in service of the end question whether the vote should have  



                                                                                           

been counted and not whether election officials committed  malconduct sufficient to  



                                                 25  

change the results of the election.                   As we explain in greater detail below, we address  



claims with respect to Shungnak and Buckland under the election contest statute and  



claims with respect to Kivalina under the recount statute.  



          23        600 P.2d 1079, 1081 (Alaska 1979).  



          24        Id. at 1082.  



          25        Id. at 1081-82.  The Division asks us to announce a rule "that a recount  



appeal is solely a review of  the Director's  decisions on how to count identifiable votes  

at the recount."  Under the Division's proposed rule the recount appeal would be limited  

to whether the "votes have been totaled up correctly" and whether "ballots that have been  

                                

challenged and segregated" should count.  The Division acknowledges that this proposed  

rule  would  overturn  a  significant  amount  of  our  precedent,  likely  including  Willis,  

                                                     

Fischer v. Stout , 741 P.2d 217 (Alaska 1987), and Finkelstein v. Stout, 774 P.2d 786  

                                 

(Alaska 1989).  We decline to do this.  We agree with our statement in  Willis that we  

must  be  able  to  look  past  the  ballot  to  determine  whether  the  votes  were  properly  

counted.  We will adhere to  our previous rulings on this issue, except for one part of  

                                            

Finkelstein .  See infra notes 39-46 and accompanying text.  



                                                             -15-                                                       7286
  


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

          A.        Recount Appeal26  



                    Alaska  Statute  15.20.510  allows  a  candidate  to  appeal  the  Division's  



                                        

recount  determination  to  this  court  to  determine  whether  the  votes  were  properly  



                                                                                                    

counted.  When deciding this question, the overriding principle "is that the voter shall,  



                         

ordinarily, have his vote recognized and the candidate be given the office to which he is  



                                                                                                                   

elected if the votes are cast and returned under such circumstances that it can be said it  



                                                                                                 27  

represents the voice of the majority of the voters participating."                                   "The right of the  



citizen to cast his ballot and thus participate in the selection of those who control his  



government is one of the fundamental prerogatives of citizenship and should not be  



                                                                                            28  

                                                                                                  We  therefore  have  

impaired  or  destroyed  by  strained  statutory  constructions." 



explained:  



                                                  

                    All   provisions   of   the   election   law   are   mandatory,   if  

                                                      

                    enforcement is sought before election in a direct proceeding  

                                                       

                    for  that  purpose;  but  after  election  all  should  be  held  

                    directory only, in support of the result, unless of a character  

                    to affect an obstruction to the free and intelligent casting of  

                    the vote or to the ascertainment of the result, or unless the  

                    provisions  affect  an  essential  element  of  the  election,  or  

                    unless it is expressly declared by the statute that the particular  

                                                                    

                    act  is  essential  to  the  validity  of  an  election,  or  that  its  

                              



          26        The Division argues that Nageak only challenged the Kivalina ballots in the  



recount and that the rest of his claims should be considered waived. We disagree. "[O]ur  

                                                                                                         

obligation under AS 15.20.510 is to review any and all questioned ballots cast in the  

election at issue, regardless of whether they were or were not specifically challenged  

                           

below."  Fischer , 741 P.2d at 220.  

                            



          27        Carr v. Thomas, 586 P.2d 622, 626 (Alaska 1978).  



          28       Id.  (quoting  Sanchez  v.  Bravo,  251  S.W.2d  935,  938  (Tex.  Civ.  App.  



1952)).  



                                                             -16-                                                       7286
  


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

                                                               [29] 

                    omission shall render it void.  



"Courts are reluctant to permit a wholesale disenfranchisement of qualified electors  

through no fault of their own."30  



                    1.        Double voting in Shungnak  



                                                                             

                    Alaska Statute 15.25.060(b) provides, "A voter may vote only one primary  



                                                                       

election ballot."  It is undisputed that all voters in Shungnak received and cast both the  



ADL and the Republican ballots.  This was an error by Shungnak election officials.  



                                                                              

Nageak  argues  that  we  should  not  count  any  of  the  51  votes  from  Shungnak,  or  



                                                                                              

alternatively, that we should proportionately reduce the number of Shungnak votes as the  



                                                                                       

superior court did in the election contest. We conclude that challenges to elections based  



                                                                            

on election official error that go beyond the facial validity of the votes cast may not be  



                                                                                                 

brought under Alaska's recount statute and therefore decline to discard the Shungnak  



votes on this basis.   



                    Two distinct statutes allow for challenges to Alaskan elections.  Alaska  



Statute  15.20.510  allows  for  a  candidate  to  appeal  a  recount  determination  of  the  



                                                                                                                   

Division to this court to determine whether the votes were properly counted.  A recount  



appeal covers "what ballots, parts of ballots, or marks for candidates on ballots are valid,  



                                                                                     31  

and to which candidate . . . the vote should be attributed."                             This is necessarily a wide- 



ranging inquiry, but "[t]he concept of malconduct does not enter into the question, except  

                                                                                              



insofar as particular acts or shortcomings of election officials may have resulted in the  

                                                                                                            



          29        Finkelstein , 774 P.2d at 790 (quoting Willis, 600 P.2d at 1083 n.9).  



          30        Carr, 586 P.2d at 626.  



          31        AS 15.20.510.  



                                                             -17-                                                        7286
  


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

                                                                32  

improper counting or rejecting of votes."                            Alaska Statute 15.20.540 covers issues of  



                                                                           

"malconduct, fraud, or corruption on the part of an election official sufficient to change  

the result of the election."33  



                                                                                                     

                     "It is clear from the existence of the two statutes that an election contest and  



                                                                   34  

                                                                       Election contest complaints can include  

a recount appeal are distinct proceedings." 

                                                                 35 but the vast majority of election contest case  

corrupt practices by non-election officials,                                                                         



                                                               36  

law concerns errors by election officials.                          Errors by election officials, like the double  

                                                                                                 



voting in Shungnak, should be considered as election  contest issues, not as recount  

                                                                                        



issues.  Allowing votes to be discarded in a recount appeal solely for errors of election  

                                                                                             



officials would largely merge these two distinct statutes and eliminate the need to file  

                                     



election contest complaints.  Challenges to the actions of election officials that go beyond  

                                                                                                                       



the facial validity of the votes cast should be brought under the election contest statute,  

                



and challenges to the counting of votes should be brought under the recount appeal  



statute.  



                                                                          

                     Our case law is largely consistent with this division.  Our cases reflect that  



                                                                        

voters who are qualified to vote and who cast timely ballots should not have their votes  



          32         Willis, 600 P.2d at 1081.  



          33         AS 15.20.540(1).  



          34         Willis, 600 P.2d at 1081; see also Miller v. Treadwell,  245 P.3d 867, 874-75  



(Alaska 2010).  



          35         See AS 15.20.540(3); Dansereau v. Ulmer ,  903 P.2d 555,  567-71 (Alaska  



 1995).  



          36         See D    eNardo v. Municipality of Anchorage,  105 P.3d 136,  140-43 (Alaska  



2005); Dansereau ,  903  P.2d  at  560-66,  571-73; Hammond  v.  Hickel,  588  P.2d  256  

(Alaska 1978); Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972); Turkington v. City of  

Kachemak , 380 P.2d 593 (Alaska 1963).  



                                                                -18-                                                          7286
  


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

discounted under the recount statute because of improper conduct of election officials.       



We concluded that votes should be counted when voters were not registered to vote  



                                                                  

because the registrars failed to send the registration applications to the Division in Willis  



                 37 

                                                          

v. Thomas           and when a confusing registration card caused a voter to accidentally check  



                                                                                     38  

a box canceling his registration in Fischer v. Stout .  



                                                                         

                      The outlier in our case law on this distinction is Finkelstein v. Stout , a case  

that involved a recount appeal of the 1988 general election for a state representative.39  



                                                                                                       

A statute required that an absentee-ballot voter sign a voter's certificate on the ballot's  



                                                                                                   40  

                                                                                                                

envelope and that two people witness the voter's signature.                                            The instructions that the  



Division gave to absentee ballot voters, however, suggested that all that was required  



                                                                                                              41  

                                                                                                                   Thirty-two voters  

was that the two witnesses witness that the ballots had been signed. 

submitted absentee ballots that had two witness signatures with two different dates,42  



                                                                                                                              43 

                             

meaning the acts of signing were not witnessed simultaneously by two people.                                                       We held  



                                                                                                                               

that the requirement that two witnesses witness an absentee ballot voter sign the voter's  



certificate on the envelope was "of a character to affect an obstruction to the free and  



                                                                                                                     

intelligent casting of the vote . . . or to . . . affect an essential element of the election" and  



           37         600 P.2d at 1087.
  



           38         741 P.2d 217, 224 (Alaska 1987).
  



           39         774 P.2d 786, 787 (Alaska 1989).
  



           40         Id. at 789-90.  



           41         Id. at 793 (Rabinowitz, J., dissenting).  



           42         Id. at 788 (majority opinion).  



           43         Id. at 790.  



                                                                     -19-                                                              7286
  


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

                                                                      44  

                 

ruled that these votes should not be counted.                             But as in Fischer and  Willis, recount  



                                 

appeals in which we declined to discard votes based on election official error, this error  



                                                                                                 45  

                                                                                                     We  now believe the  

in Finkelstein was also "solely on the part of election officials." 



                                

claim in Finkelstein should have been argued and decided in an election contest case and  



not  a  recount  appeal.    Accordingly,  we  disavow  this  aspect  of  Finkelstein .    Future  



election challengers should bring only an election contest case if they are alleging only  



                                                                                                         46  

"malconduct, fraud, or corruption on the part of an election official."                                       



                               2.        Questioned ballots in Kivalina  



                                                                                                             

                    It is undisputed that seven voters in Kivalina insisted on casting both the  



                                                             

ADL and Republican ballots.  Election officials in Kivalina required each voter to cast  



                                                                                        

one in-person ballot and one questioned ballot.  Of these seven questioned ballots, five  



                                                                     

were Republican ballots and two were ADL ballots, with the latter producing one vote  



                                                                       

for each candidate.  The Director initially did not count these questioned ballots, but in  



                                                                        47  

the recount the Director decided to count them.                             This was error based on the statutory  



          44        Id. at 791 (alteration in original).  



          45        Id. at 794 (Rabinowitz, J., dissenting) (quoting                        Fischer v. Stout , 741 P.2d  



217, 225 (Alaska 1987)).  



          46        AS 15.20.540(1).  



          47        After the Director initially decided not count the questioned ballots, Nageak  



challenged this decision.  The Division argues that Nageak cannot now argue the ballots  

                                                                       

should not have been counted after arguing the opposite during the recount stage.  The  

                                                                                                                    

Division does not cite any authority for this position, and we have previously stated that  

                                         

our obligation under AS 15.20.510 "must extend to a review of all ballots questioned on  

                                                                                                     

any  basis.  .  .  .  regardless  of  whether  they  were  or  were  not  specifically  challenged  

below."  Fischer, 741 P.2d at 220.  

                             



                                                               -20-                                                         7286
  


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

                                                                                     48  

requirement that each voter cast only one primary ballot.                                A challenge based on this  



                                 

error can properly be brought under the recount statute as the error at issue goes not to  



                             

malconduct on the part of Kivalina election officials, who acted properly, but rather to  

whether the votes were properly counted.49  



                    In justifying her decision, the Director said that it was impossible to know  



                                                                   

which  ballot  voters  intended  as  their  first  choice.    We  are  not  convinced  by  this  



                                                                             

explanation.  Casting an in-person ballot and casting a questioned ballot are substantially  



different procedures.  An in-person ballot is cast through the normal process of filling  



                                                                           

out a ballot and placing it in a ballot box (or using a touchscreen device).  A questioned  



                                                                                                     

ballot is placed in an envelope and set aside; voters sign a questioned ballot register.  We  



                                                                 

hold that a person who casts one in-person and one questioned ballot can be presumed  



                                                                                                                   

to have intended the in-person ballot to be the first choice ballot if only one is to count.  



                                                     

                    Nor are we convinced by Nageak's argument that these seven voters chose  



to break the law and that their votes should not be counted as a result.  On the record  



                                                                                        

before us, there is no evidence suggesting the voters chose to break the law; it appears  



                                                                                     

they merely misunderstood the applicable law and elected to cast questioned ballots.  All  



                                                                                         

of Kivalina's in-person votes should be counted, but the two relevant questioned ballots  

                     50  Since these two ballots were counted, we order the Director to subtract  

should not be.                             



one vote from the vote total of each candidate.  



                    3.        Special needs ballots in Buckland  



          48        AS 15.25.060(b).  



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



          50        We do not disturb the vote totals in the Republican primary.  The Division  



did not conduct a recount of the Republican ballots, and no recount appeal from that  

primary is before us.  Further, the Director did not count the Kivalina questioned ballots  

                                 

in her initial vote tally, only deciding to count them when recounting the ADL ballots.  



                                                             -21-                                                       7286
  


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

                  Nageak   argues   that   election   officials   erred   in   serving   as   election  



representatives  for  12  special  needs  voters  in  Buckland.    Because  Nageak  alleges  



                                                                                                      

improper conduct on the part of election officials and not improper counting of votes we  



consider this challenge as an election contest.  



                  4.       Summary  



                                                                                         

                  The alleged errors in Shungnak and Buckland were "solely on the part of  



                         51  

                             They therefore are properly the subject of an election contest and  

election officials."                                   



not a recount appeal.  Because the Director properly counted the ballots of voters in  



Shungnak and special-needs voters in Buckland in the recount, we affirm the Director's  



                                                               

recount decisions in Shungnak and Buckland.  It was error to count the two questioned  



ballots in Kivalina.  We therefore order the Director to subtract one vote from each  



candidate in Kivalina.  



         B.       Election Contest  



                  Alaska Statute 15.20.540 allows "[a] defeated candidate or 10 qualified  



                                                                                                              

voters" to contest an election on grounds that include "malconduct . . . on the part of an  



                                                                 

election official sufficient to change the result of the election."  We first consider whether  



the errors Nageak alleges constitute malconduct and then whether the malconduct was  



sufficient to change the result of the election.  



                  1.       Malconduct  



                  Alaska  Statute  15.20.540  "parallels  the  'directory'  view  that  statutes  



prescribing election procedures and ballot forms are directory and that they therefore  

                                                                  52  Thus, parties contesting the election  

establish a desirable rather than mandatory norm."                     



outcome  must  "show  more  than  a  lack  of  total  and  exact  compliance  with  the  



         51       Fischer , 741 P.2d at, 223-24 (quoting Willis, 600 P.2d at 1087).  



         52       Boucher v. Bomhoff , 495 P.2d 77, 80 (Alaska 1972).  



                                                       -22-                                                     7286  


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

constitutionally and statutorily prescribed form of ballot" and "ha[ve] the dual burden  



                                                  

of showing a significant deviation from the prescribed form and that such departure was  

of a magnitude sufficient to change the result of the . . . election."53  



                                                                                        

                   In Hammond v. Hickel we explained that "[i]f a bias has been introduced  



                        

into the vote, . . . 'malconduct' exists if the bias can be shown to be the result of a  

                                                                               54  "Significant deviations which  

significant deviation from lawfully prescribed norms."                                                



impact  randomly  on  voter  behavior  will  amount  to  malconduct  if  the  significant  



                                                                                                              

deviations  from  prescribed  norms  by  election  officials  are  imbued  with  scienter,  a  



                                                                                            

knowing noncompliance with the law or a reckless indifference to the norms established  



              

by law.  Thus, evidence of an election official's good faith may preclude a finding of  

malconduct in certain circumstances."55  



                             a.        Double voting in Shungnak  



                   As explained above, election officials in Shungnak allowed each voter to  

                                                                                                                   



cast both the Republican and ADL ballots in contravention of clear statutory language.  

                                                                                           



The  superior  court  determined  that  this  was  a  significant  deviation  from  lawfully  



                                                                                                                       

prescribed norms.  On appeal, the Division argues that providing both ballots was not a  



                                                                      

significant deviation because every voter who voted in the Democratic primary was  



                                

eligible to do so and because no voter voted for more than one candidate in the House  



District 40 race.  We disagree.  Voters who would have chosen the Republican ballot  



                                                                                             56  

                                                                                                 The converse is true  

should not have been allowed to vote in the Democratic primary. 



          53       Id.  



          54       588 P.2d 256, 258-59 (Alaska 1978).  



          55       Id. at 259 (footnote omitted).  



          56       See AS 15.25.060(b).   



                                                            -23-                                                      7286
  


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

                                                                           57  

                                                                                      

for voters who would have chosen the ADL ballot.                               But Shungnak voters were allowed  



to cast both ballots, while voters outside of Shungnak were not, giving Shungnak voters  



                                                           58  

                                                                Allowing  voters  to  cast  two  ballots  was  a  

a  slightly  greater  say  in  the  election. 



significant deviation from lawfully prescribed norms.  



                    The  superior  court  found  that  "election  officials  in  Shungnak  acted  in  



reckless disregard of the requirements of law."  It explained that "[j]udging purely on the  



basis of their actions," elections officials "did not participate in any advance training  



                  

offered by the Division for the 2016 election; they did not review the materials sent to  



                        

them; they did not review and follow the instructions on the ballot choice poster and  



placards sent to them; and they knowingly gave every voter two ballots."  



                                                                                                        

                    The Division argues that "[t]he record in fact contains no evidence about  



                          

whether the poll workers reviewed the materials" and that "Nageak failed to present any  



                                                                                  

evidence at all about the motives of the Shungnak poll workers."  The Division notes that  



                                     

poll  workers  are  local  residents  hired  for  a  brief  amount  of  time  and  tasked  with  



numerous responsibilities.  In this context, the Division argues, the Shungnak election  



                         

officials'  error  should  be  viewed  as  "an  honest  mistake"  that  constituted  "at  worst,  



negligence."  



                    "We review a trial court's findings of fact for clear error," which "exists  



                                                                                          

when 'our review of the record leaves us with the definite and firm conviction that the  



          57        See id.  



          58        See Bush v. Gore, 531 U.S. 98, 105 (2000) ("It must be remembered that       



'the right of suffrage can be denied by a debasement  or   dilution of the weight of a  

citizen's  vote  just  as  effectively  as  by  wholly  prohibiting  the  free  exercise  of  the  

franchise.' " (quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964))); see also  id.  at  

                                                                                                                    

104-10.  



                                                              -24-                                                         7286
  


----------------------- Page 25-----------------------

                                                           59  

superior  court  has  made  a  mistake.'  "                       The  superior  court's  finding  was  based  on  



                                                                                                                     

uncontested facts or reasonable inferences from those facts. The court did not clearly err  



in  finding  that  election  officials  in  Shungnak  acted  with  "reckless  disregard  to  the  



                                                                                                

requirements of law."  We therefore affirm the superior court's finding that the errors of  

Shungnak election officials constituted malconduct.60  



          59        Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc.                               , 355 P.3d 503, 508  



(Alaska 2015) (quoting Gilbert M. v. State, 139 P.3d 581, 586 (Alaska 2006)).  



          60        The court also found that the election officials' actions constituted bias  



"because they occurred in a precinct that lopsidedly favored Mr. Westlake."  This was  

                                                                                                    

error.  Bias exists at the malconduct stage when conduct of election officials influences  

                                                                                      

voters  to  vote  a  certain  way.    See  Boucher  v.  Bomhoff,  495  P.2d  77  (Alaska  1972)  

                                       

(concluding that the addition of misleading language influenced voters to vote a certain  

way  and  constituted  malconduct).                      There  is  no  evidence  that  election  officials  in  

                                                                                                                  

Shungnak influenced voters to vote for any particular candidate.  The effect of election  

                                                                                                                    

officials' conduct on the outcome of an election goes to whether any malconduct was  

sufficient  to  change  the  outcome  of  the  election  and  not  to  whether  there  was  

malconduct.   See Fischer v. Stout, 741 P.2d 217, 226 (Alaska 1987) (discussing the  

                                                                                                             

method  for  "determin[ing]  the  effect  of  any  bias  that  affected  individual  votes  in  a  

random fashion").  



                    The court also found that "[t]he actions of the election officials in Shungnak  

                                    

in issuing every voter both ballots violated clearly established constitutional rights as  

well as the requirements of statutory law" and that "[g]iven the constitutional dimensions  

of these actions and the scale on which they occurred, . . . [the actions] constitute[d]  

                                                               

malconduct."  We have never held that a deviation was significant enough from the norm  

                                                                                                               

to constitute malconduct absent scienter or bias, but we also have not foreclosed the  

                                                                    

possibility of demonstrating malconduct by showing good faith maladministration.  In  

                                                                                  

Hammond we said that "evidence of an election official's good faith  may preclude a  

finding  of  malconduct  under  certain  circumstances"  and  that  "[i]n  common  usage,  

malconduct is defined as:  'Ill conduct, especially dishonest conduct, maladministration,  

or, as applied to officers, official misconduct.' "  Hammond , 588 P.2d at 259 & n.3  

                                                                              

(emphasis added) (quoting Malconduct , B 

                                                                                                               

                                                               LACK 'S LAW DICTIONARY (rev. 4th ed. 1968)).  

                                                    

In determining whether there was a "corrupt practice" under the election contest statute,  

                                                                

AS 15.20.540(3), we have asked whether "the purpose of [a] statute has been satisfied."  

                                                                                                               (continued...)  



                                                              -25-                                                         7286
  


----------------------- Page 26-----------------------

                               b.        Questioned ballots in Kivalina  



                     The  superior  court  ruled  the  Director  erred  in  counting  the  questioned  



                 

ballots of voters in Kivalina who cast two ballots, and the court ordered one vote be  



subtracted  from  each  candidate.    While  we  agree  that  the  Director  should  not  have  



                                                               

counted the questioned ballots, we do  not agree that the superior court should have  



altered the vote total under the election contest statute.  Election officials in Kivalina  



                                                                                                         

made a reasonable decision as to how to handle voters who wished to cast both ballots.  



                                                                                          

Nageak points to no statute that suggests election officials should have acted differently,  



                                                                      

let alone that their conduct was a significant deviation from lawfully prescribed norms.  



                                              

Indeed, he concedes that the election officials did not err.  The superior court's opinion  



focused on the Director's decision to count these votes in the recount.  But this question  



                                                                                              

addresses solely which votes should be counted and does not involve allegations of  



                                                                       

election official malconduct.  It therefore is a question for a recount appeal, in which this  



                                                                                                               

court has direct appellate jurisdiction from the Division, and not for an election contest  



                          61 

                                                                               

in superior court.             Further, the decision of neither the election officials nor the Director  



           60(...continued)  



Dansereau v. Ulmer , 903 P.2d 555, 568 (Alaska 1995).  And under the recount appeal  

                                                                                         

statute we ask whether a statutory violation is "of a character to affect an obstruction to  

                                                                     

the free and intelligent casting of the vote or the ascertainment of the result, or. . . the  

                                                      

provisions affect an essential element of the election."  Carr v. Thomas, 586 P.2d 622,  

                                               

626 (Alaska 1978) (quoting Rich v. Walker , 374 S.W.2d 476, 478 (Ark. 1964)); see also  

                                                                                        

Boucher , 495 P.2d at 80 (noting that the malconduct inquiry "parallels the 'directory'  

view that statutes prescribing election procedures and ballot forms are directory and that  

                                                            

they therefore establish a desirable rather than mandatory norm").  We need not decide  

                                                                                                               

here  whether  the  error  in  Shungnak  would  have  constituted  malconduct  absent  the  

                                           

finding of recklessness.  



          61  

                                      

                     See Willis v. Thomas, 600 P.2d 1079, 1081-82 (Alaska 1979) (holding that  

                                                                                              

questions  involving  which  ballots  to  count  were  recount  appeal  questions  and  not  

                                                                                                                 (continued...)  



                                                                -26-                                                          7286
  


----------------------- Page 27-----------------------

could be sufficient to change the result of the election:  each candidate received one vote   



in the questioned ballots from Kivalina.  



                                                               

                        We disagree with the superior court's choice to treat the questioned ballots  



                                                                                                                                

in Kivalina as an election contest question.  But we affirm the court's decision on the  



                                                                                                                              

alternative ground discussed above in our recount appeal analysis:  the Director erred in  



counting the two questioned ballots.  



                                    c.          Special needs ballots in Buckland  



                                                                                            

                        It is undisputed that election officials acted as election representatives for  



                                                                                 

12 special needs voters in Buckland. Nageak argues that this practice violates the statute  



                                                                                                                                       

that authorizes special needs voting.  That statute provides that a voter who is unable to  



go to a polling place because of a disability "may, through a representative, request a  



                                                                                  62  

special  needs  ballot  from"  election  officials.                                     "The  representative  shall  deliver  the  

special needs ballot and other voting materials to the voter as soon as practicable,"63  



witness the voter placing the completed ballot into the envelope (after the voter has  

                                                                                                                                   



completed the ballot privately), and then "deliver the ballot and voter certificate to an  

                                                                                                                            64   Nageak argues  

                                                                                                                                 

election official not later than 8:00 p.m. Alaska time on election day."  



that  this  system  of  voting  requires  three  separate  people  -  an  election  official,  a  

                               



representative, and a voter - and that election officials may not serve as representatives.  

                                                                                   



We disagree.  



                                                                                                                                            

                        Nowhere  in  the  statute  does  it  say  that  the  election  official  and  the  



            61(...continued)
  



election contest questions).
  



            62          AS 15.20.072(a)-(b).  



            63          AS 15.20.072(d).  



            64          AS 15.20.072(e).  



                                                                          -27-                                                                    7286
  


----------------------- Page 28-----------------------

                                                                                                                          

representative may not be the same person. This absence is striking given that the statute  



                                                                                                                      65  

                                                                                                                          Nor does the  

contains a list of other people who may not serve as representatives. 



                                                                                                

purpose of the act require that the election official and the representative be two different  



                                                                                                                                  

persons.  The obvious purpose of this statute is to facilitate voting by persons who have  



                                                                                                                                         

special needs.  The success of the arrangement in Buckland - 12 disabled voters, 11 of  



whom  were  64  years  of  age  or  older  -  suggests  that  election  officials  serving  as  



representatives may be an efficient practice in rural villages.  We see nothing in the  



                                                                                                

statute  that  prohibits  this.    We  also  cannot  agree  with  Nageak's  argument  that  this  



practice "risks the integrity of the ballot process"; if anything, one fewer person in the  



process should make the ballot more, not less, secure.  



                                                           

                      Because we hold that an election official may also serve as a representative,  



the  conduct  of  election  officials  in  Buckland  was  not  a  significant  deviation  from  

lawfully prescribed norms.66  



                                  d.         Alleged cumulative malconduct  



                      Nageak alleges numerous other actions by election officials that he argues  



                                                         67  

                                                                                                                    

constitute cumulative malconduct.                            We agree with the superior court that no cumulative  



           65         AS 15.20.072(g) ("The voter's employer, an agent of the voter's employer,   



or an officer or agent of the voter's union may not act as a representative for the voter.               

A candidate for office at an election may not act as a representative for a voter in the     

election.").  



           66  

                                                                                                                            

                      Nageak also argues that election officials failed to record the date and time  

the special needs ballots were returned to the precinct.  But he does not identify any  

statute or regulation that requires this information be recorded.  



           67  

                                                                                                            

                      Nageak alleges that there were delays in returning election materials, that  

Browerville election officials required Republicans seeking to vote the ADL ballot to  

                                                                                                                              

cast a questioned ballot, that a felon ineligible to vote voted, and that voters and election  

officials in multiple precincts did not complete or sign required paperwork.  He also  

                                                                                                                          (continued...)  



                                                                     -28-                                                               7286
  


----------------------- Page 29-----------------------

malconduct occurred.  In Hammond we theorized:  



                           It may be that, in rare circumstances, an election will  

                  be so permeated with numerous serious violations of law, not  

                                                                       

                  individually amounting to malconduct, that substantial doubt  

                  will  be  cast  on  the  outcome  of  the  vote.  Under  such  

                  circumstances, cumulation of irregularities may be proper and  

                                                                    [68] 

                  will support a finding of malconduct.  



But  we  have  never  been  presented  with  a  case  where  we  found  a  cumulation  of  



irregularities that constituted malconduct.  And the Minnesota case we cited for the  



                                                                                     

proposition that cumulative malconduct may cast doubt on the outcome of the election  



                                                                                       69  

                                                                                             We  explained  in  

contained  facts  far  worse  than  what  allegedly  occurred  here. 



Hammond  that  Alaska  elections  present  "[u]nique  problems  .  .  .  in  the  vast  area  



encompassed  as  well  as  the  varied  cultural  backgrounds  and  primary  languages  of  



           70  

                                  

voters."        Nowhere  is  this  more  true  than  in  House  District  40.    "Under  these  



circumstances minor irregularities and other good faith errors and omissions may be  



anticipated,      although      we     do    not   condone       any     such    departures       from     lawful  



         67(...continued)  



alleges that election officials did not request identification from voters, destroyed or  

failed to turn in ballot stubs, telephoned inaccurate results on election night, did not  

properly tally votes, incorrectly marked spoiled ballots, failed to sign certificates of ballot  

counts, and that precincts had fewer than the statutorily required number of election  

officials.  



         68       Hammond v. Hickel , 588 P.2d 256, 259 (Alaska 1978) (citing In re Contest  



of Election of Vetsch, 71 N.W. 2d at 652 (Minn. 1955)).  



         69       In In re Contest of Election of Vetsch more votes were cast than registered  



voters in the precinct, many ballots were unaccounted for, the leader of the election  

board favored the winning candidate, and some of the people counting the votes were  

statutorily barred due to conflicts of interest.  71 N.W.2d at 655-56.  



         70       Hammond , 588 P.2d at 259.  



                                                       -29-                                                  7286
  


----------------------- Page 30-----------------------

                      71  

requirements."              Nageak  has  not  shown  sufficient  facts  to  establish  cumulative  



malconduct.  



                   2.        Sufficient to change the result of the election  



                   Because we affirm that malconduct occurred in Shungnak, we must now  



                                                                                    

decide whether Nageak has shown that this malconduct was "sufficient to change the  



                                72                                             73 

result of the election."             We conclude that he has not.  



          71       Id.  



          72       AS 15.20.540(1).  



          73       The dissent states that we have "subtly change[d] the standard we have used  



in past cases to assess whether malconduct affected the election, deciding that Nageak  

was required to show not just that the malconduct could have changed the result . . . but  

                                                                                                                     

that it would have changed the result."  The dissent argues that "[t]his standard is too  

high" because "even a probability less than 50% should be adequate to meet the purpose  

                                                                                                       

of   an   election   contest."             In   response   we   note   that   our   opinions   have   fairly  

                                                                                             

interchangeably asked both whether the malconduct could have changed the result and  

                                                                                               

whether it would have changed the result.  See, e.g., Hammond , 588 P.2d at, 260 (Alaska  

                                                                                                              

1978) ("The method used to determine if the malconduct could have changed the result  

                                                          

of the election will depend upon whether the malconduct injected a bias into the vote.  

If the bias has tended to favor one candidate over another and the number of votes  

affected by the malconduct can be ascertained with precision, all such votes will be  

                                                                                                           

awarded to the disfavored candidate to determine if the result of the election would be  

changed. . . .  Finally, if the malconduct has a random impact on votes and those votes  

                                                                                                        

cannot be precisely identified, we hold that the contaminated votes must be deducted  

from  the  vote  totals  of  each  candidate  in  proportion  to  the  votes  received  by  each  

candidate in the precinct or district where the contaminated votes were cast. . . .  The  

                                                                                                                        

invalid votes will be deducted in this pro rata fashion to determine if the malconduct  

could have affected the result of the election." (emphasis added)); Fischer v. Stout , 741  

P.2d 217, 226 (Alaska 1987) ("In Hammond , we discussed the proportionate reduction  

                                                                                             

rule  as  the  only  method  to  properly  determine  the  effect  of  any  bias  that  affected  

                                                                                                            

individual votes in a random fashion. . . .  [T]he technique was to be used only as an  

analytical tool to aid in the determination of whether the contaminated ballot actually  

                                                                                                          

would [a]ffect the result of the election." (emphasis added) (citing Hammond , 588 P.2d  

                                        

                                                                                                           (continued...)  



                                                            -30-                                                       7286
  


----------------------- Page 31-----------------------

                    The  2016  Republican  primary  election  in  House  District  40  was  a  



comparatively uncontroversial primary election; by uncontroversial, we mean that the  



                                                                              

races on that ballot were not close or heated.   On  the Republican ballot, incumbent  



                                                               

Republican U.S. Senator Lisa Murkowski was running against three challengers, whom  



                                                 74  

she  beat  by  significant  margins.                    Incumbent  Republican  U.S.  Representative  Don  



                                                                            

Young was also running against three challengers, and he also beat them by significant  



(...continued)  

at 260)); Finkelstein v. Stout , 774 P.2d 786, 793 (Alaska 1989) ("If application of the  

                                                                          

proportional reduction formula does not change the provisional result . . . , the Director  

                                                                                                                

should certify the prevailing candidate forthwith. . . .  If application of the proportional  

                                                                                    

reduction formula would change the provisional result . . . , a new election should be held  

                                                       

promptly." (emphasis added)). To the extent this leaves ambiguity, we decline to resolve  

                                                         

it now other than by reaffirming the principle that "every reasonable presumption will  

be indulged in favor of the validity of an election."  Dansereau v. Ulmer , 903 P.2d 555,  

559 (Alaska 1995) (quoting Turkington v. City of Kachemak, 380 P.2d 593, 595 (Alaska  

                                                                                           

 1963)).  



                    We  have  described  ordering  a  new  election  as  an  "extreme  remedy."  

Hammond , 588 P.2d at 259.  This is at least partly because a second election is usually  

                                                    

a poor approximation of the first election:  among other concerns, voter turnout is likely  

                                                                                                          

to differ significantly, and there is no guarantee that the second election will be any more  

                                                                      

problem-free than the first.   See Huggins v. Superior Court, 788 P.2d 81, 84 (Ariz.  

 1990).  This case provides a good example of some of the issues with holding a new  

             

election.  The problem in Shungnak was that all voters were allowed to vote the ADL  

                                                                                                                    

ballot, rather than being forced to choose between the ADL and Republican ballots.  But  

                                                                                                                           

a second election would have no Republican ballot.  Once again, all voters would be  

                                       

allowed to vote the ADL ballot because there would be no Republican option.  



                    We reaffirm that we will order a new election only if an election challenger  

                                                                                                 

has shown malconduct sufficient to change the result and only after indulging every  

reasonable presumption in favor of the validity of the election.  Nageak has not made the  

                                                          

necessary showing.  



          74        See DIV . OF  ELECTIONS ,  2016  PRIMARY ELECTION :   ELECTION   SUMMARY  



REPORT  1 (2016), http://www.elections.alaska.gov/results/16PRIM/.  



                                                             -31-                                                        7286
  


----------------------- Page 32-----------------------

margins.75  



                    Significantly, there were no state representative candidates running on the   

                                                            76  Only the ADL ballot had candidates running  

Republican ballot for House District 40.                        



for  state  representative  -  incumbent  Democratic  state  representative  Nageak  and  



Democratic challenger Westlake.  Nageak, though a registered Democrat, caucused with  



                                                                                                       

the  Republican  House  caucus  and  was  supported  by  the  Alaska  Republican  party.  



Westlake, also a registered Democrat, was supported by the Democratic Party.  The  



significance of these facts is that, had the Shungnak election officials not provided both  



ADL and Republican ballots to all Shungnak voters, a voter in Shungnak who wanted  



to vote for a "Republican" state house candidate (that is, Nageak) had to choose the ADL  



                                                                                                               

ballot.  A voter who chose the Republican ballot would be able to vote in the relatively  



noncompetitive national congressional races on the Republican ballot but would forfeit  



                                                                      

the opportunity to vote in the contested local state house race between a "Republican"  



and a Democratic candidate.  



                                                                                                                   

                    Because all 50 in-person voters in Shungnak were given both ballots, all  



50 voters were able to vote for a state house candidate.  Nageak received 3 votes and  



                                                                            

Westlake received 47.  Although all 50 in-person voters voted the ADL ballot because  



                                                                          

of election official error, as we explain below it is likely that almost all of these voters  



                                                                                                     

still would have voted the ADL ballot if forced to choose because this is how voters in  



Shungnak voted in comparable elections.  Since Westlake won by 8 votes overall in  



                                                          

House District 40, the error of election officials in Shungnak was harmless unless at least  



          75        See id.  



          76        There  were  no  state  senate  candidates  for  Senate  District  T  on  the  



Republican ballot either.  



                                                              -32-                                                         7286
  


----------------------- Page 33-----------------------

8 of the 47 voters who voted for Westlake would have chosen the Republican ballot.77  



                        The   superior   court  adopted   the   method   proposed   by   Nageak's  expert,  



Ruedrich, who used the average number of voters who chose the Republican ballot in  



2008,  2010,  2012,  and  2014  to  approximate  the  number  of  voters  who  would  have  



                                                                                                     78  

chosen the Republican ballot in 2016 if forced to choose.                                                But this method fails to take  



into  account  the  significant  differences  on  the  ballots  in  different  years'  elections,  



                                                                   

differences Ruedrich acknowledged.  As discussed above, the 2016 Republican primary  



                                                                                                                               

election in House District 40 was comparatively uncontroversial.  This had not been the  



                                                                      

case in other recent primary elections.  The 2008 Republican primary election included  



                        

a very close, hotly contested race between Republican then-Lieutenant Governor Sean  



                                                                                                        

Parnell and Republican incumbent Don Young for U.S. Representative; Young won  



                                                    79  

45.47% to Parnell's 45.19%.                              The 2010 Republican primary included a high-profile  



contest   between   Republican   challenger   Joe   Miller   and   Republican   incumbent  

                                                                                                               



            77          Even if eight Shungnak voters would have chosen the Republican ballot if   



forced to choose, it is not clear that only Westlake's vote total would be affected.                                                                The  

three Shungnak voters who voted for Nageak may have done so because he caucused  

with Republicans in the House and was considered the "Republican" candidate.  If they  

would have chosen the Republican ballot if forced to choose then Nageak would have  

to make up the loss of those three votes as well as gain an additional eight net votes from  

                                                                                        

Shungnak Westlake voters who might have chosen the Republican ballot.  See Talbott  

                                                                      

v. Thompson, 182 N.E. 784, 789 (Ill. 1932) and Leach v. Johnson , 313 N.E.2d 636, 640- 

42 (Ill. App. 1974) for cases using party affiliation to determine the outcome of elections  

                                   

when over voting has occurred.  



            78          The 2008 primary election was the first election to have the choice between  



an ADL and Republican ballot.  



            79          See DIV . OF  ELECTIONS ,  2008  PRIMARY ELECTION :   ELECTION   SUMMARY  



REPORT  1 (2008), http://www.elections.alaska.gov/results/08PRIM/data/results.pdf.  



                                                                          -33-                                                                    7286
  


----------------------- Page 34-----------------------

                                                                                                                                                              80  

                                                                                                                                              

Lisa Murkowski for U.S. Senator; Miller won 50.91% to Murkowski's 49.09%.                                                                                           The  



2010 Republican primary also included contested races for Governor and Lieutenant  



                     81  

Governor.                And the 2014 primary election had a competitive race on the Republican  



                                              82  

                                                                                                

ballot for U.S. Senator.                           The 2014 ADL ballot also had Westlake challenging Nageak  



in  the  Democratic  primary.    Only  in  2012  was  the  Republican  primary  essentially  



uncontroversial in the same way as 2016 at the same time as there was a competitive  



                                                                                                               83  

                                                                                                                      Likely  because  of  these  

Democratic  primary  election  for  House  District  40. 



                                                                                                                                            

differences, a significantly higher percentage of voters in Shungnak and the rest of House  



District 40 chose the ADL ballot in 2012 than in 2008 and 2010; and a slightly higher  

percentage chose the ADL ballot in 2012 than 2014, as the following table shows.84  



             80           See DIV . OF  ELECTIONS ,   2010  PRIMARY  ELECTION :   ELECTION   SUMMARY  



REPORT  1 (2010), http://www.elections.alaska.gov/results/10PRIM/data/results.pdf.  



             81           See id.  



             82           See DIV . OF  ELECTIONS , 2014 PRIMARY ELECTION :  ELECTION  SUMMARY  

                                                                                                                                                       



                     

REPORT  1 (2014), http://www.elections.alaska.gov/results/14PRIM/data/results.pdf.  



             83  

                                                                                                                                                       

                          See DIV . OF  ELECTIONS , 2012 PRIMARY ELECTION :  ELECTION  SUMMARY  

REPORT 1, 3, 9 (2012), http://www.elections.alaska.gov/results/12PRIM/data/results.pdf.  



             84           As discussed above, the Division does not record the number                                                                      of  ADL  



versus R ballots cast in each election.  See supra note 17. In the following table, we use   

the method relied on by the parties: the number of votes cast in the race with the most       

votes on each ballot (ADL or R). This method provides consistency across both election                        

years and geographic scales (Shungnak, House District 40, and statewide).  In addition,                               

when calculating the percentage of ADL ballots, we believe the proper denominator is   

the total number of ADL and Republican ballots cast in a given election, excluding   

separate  ballots  for  initiatives.    We  note  that  this  differs  from  the  method  used  by  

Heckendorn,  who  relied  on  the  total  number  of  ballots  cast.    We  disagree  with  

                                       

Heckendorn's method because the relevant comparison for our purposes is between ADL  

and Republican ballots (which are mutually exclusive), rather than separate initiative  

                                                                                                                                                 (continued...)  



                                                                                  -34-                                                                           7286
  


----------------------- Page 35-----------------------

                    Shungnak                                             HD 40 excluding Shungnak  



  Year             ADL               R                 % ADL             ADL              R                 % ADL  



  2008             38                15                71.7%             1762             904               66.1%  



  2010             32                18                64.0%             1049             816               56.2%  



  2012             53                7                 88.3%             1926             417               82.2%  



  201485           56                11                83.6%             2068             751               73.4%  



  2016             -                 -                 -                 159086           426               78.9%  



                   We believe that  the qua         litative c   omparative differences in the nature of the  



primary elections over a period of years are legally significant factors and t  hat  the legal  



methodology  for  determining  whether  the  malconduct was  sufficient to change the result  



of the election must account for these important factors.  Because si                             mple averaging of  



the number of voters who  chose th              e R  epublican  ballot in  past elections does not take into  



account  these l  egally significant  factors,  it  was l  egal  error f  or t  he s  uperior court to adopt  



Ruedrich's  method  to  determine  whether  malconduct  was  sufficient  to  change  the  

outcome of the election.87  



          84(...continued)  



ballots (which everyone may cast).  



          85       The boundary of House District 40 shifted for the 2014 election.                            Compare  



Appendix p. 3,  with ALASKA   REDISTRICTING   BD .,   AMENDED  PROCLAMATION   HOUSE  



                            

DISTRICTS : HOUSE DISTRICT 40 (2011), http://www.elections.alaska.gov/doc/maps/2011- 

districts/HD40.pdf (district for 2012 election).  



          86       This  total  reflects  our  subtraction  of  one  vote   from  each  candidate  in  



Kivalina.  



          87       We do not disturb any of the superior court's factual findings with respect  



to  its  sufficiency  analysis.    We  accept  the  court's  findings  as  to  what  occurred  in  

                           

Shungnak and the court's assessment of the credibility of the two expert witnesses.  But  

                                                                                                         (continued...)  



                                                           -35-                                                      7286
  


----------------------- Page 36-----------------------

                    Westlake's expert, Heckendorn, did consider these qualitative differences.  



He compared the qualitatively similar 2012 and 2016 elections and used the percentage  



                                                                            

of voters in Shungnak who chose the ADL ballot in 2012 as an estimate of the number  



                                 

of voters who would have chosen the ADL ballot in 2016 if forced to choose between  



the ADL and Republican ballots.  To characterize Heckendorn's methodology in familiar  



terms, comparing the 2012 and 2016 ballots compared apples to apples; but when one  



                                                                                                        

adds the 2008, 2010, and 2014 ballots into the analysis one ends up comparing apples  



          87(...continued)  



the correct method or formula for calculations is generally a question of law that we  

                                                                         

review de novo.  See, e.g., Sherrill v. Sherrill, 373 P.3d 486, 490 (Alaska 2016) ("We  

                                                                                              

review de novo child support issues that involve '. . . determining the correct method for  

                                                                                

calculating child support.' " (quoting  Wells v. Barile, 358 P.3d 583, 587-88 (Alaska  

                                                                                           

2015))); Kollander v. Kollander , 322 P.3d 897, 903 (Alaska 2014) ("Whether the court  

                                                                         

applied the proper legal analysis to calculate attorney's fees is a question of law we  

                                                                                                                   

review de novo." (quoting  Weimer v. Cont'l Car & Truck, LLC, 237 P.3d 610, 613  

                                                                                                      

(Alaska 2010))); Dixon v. Blackwell , 298 P.3d 185, 188 (Alaska 2013) ("Calculation of  

                                                                                                 

the value of a verdict to determine if it exceeded an offer of judgment presents questions  

                                                                                                        

of  law,  which  we  review  de  novo."  (quoting Power  Constructors,  Inc.  v.  Taylor  &  

Hintze , 960 P.2d 20, 34 (Alaska 1998))); Carlson v. State, Commercial Fisheries Entry  

                                                                            

Comm'n, 919 P.2d 1337, 1339 (Alaska 1996) ("The issue of whether the superior court  

erred  in  adopting  the  pro  rata  formula  to  calculate  the  contribution  to  commercial  

fisheries management made by residents is also an issue of law which we review de  

                                                                                

novo.").   

                    Similarly, we have explained that the Hammond  formula sets as a matter  

                                                                                               

of law the proper method for determining sufficiency under AS 15.20.540 when the  

                                         

number of improper votes is known.  Hammond v. Hickel, 588 P.2d 256, 258 (Alaska  

 1978) ("This ultimate legal conclusion is necessarily predicated on two lesser, but critical  

                                                                                                   

conclusions of law:  (1) a finding of malconduct on behalf of election officials and (2)  

a finding that such malconduct was sufficient to change the result of the election.");  id.  

                                                                                          

at 260 ("We believe that more concrete standards must be applied in order to determine  

                                                                                        

if votes affected by malconduct are sufficient in number to change the result of the  

election.").  We therefore review de novo the method "applied in order to determine if  

                                                                                                             

[the] votes affected by malconduct [were] sufficient in number to change the result of the  

                                                                              

election."  Id .  



                                                              -36-                                                         7286
  


----------------------- Page 37-----------------------

to  apples  and  oranges,  a  legally  invalid  comparison.    The  Division  agrees  with  

                                                                                                           



Heckendorn's method of analysis and so do we.  



                                                                                                             

                   We do not hold that Heckendorn's method is the only or best method for  



determining how many voters would have chosen the ADL and Republican ballots if  



                                                              

forced to choose.  But his method at least focuses on legally relevant information and  



                                                                                        

disregards factors that would bias the outcome.  Because the 2012 primary election and  



                                                                                         88  

the 2016 primary election were qualitatively similar elections,                             we are assured that the     



comparison between these two elections is a legally valid apples-to-apples comparison.  

                                                              



Heckendorn's  method  appropriately  considered  the  legally  significant  factors  that  



Ruedrich's method failed to consider.  



                                                        

                   Using the percentage of Shungnak voters who chose the ADL ballot in  



                                                                                              

2012 to determine the percentage of voters who likely would have chosen the ADL ballot  



in 2016 results in the conclusion that 5.83 voters would have chosen the Republican  



ballot.  Even rounding up to 6 votes and subtracting all 6 from Westlake's 47 does not  



give Nageak the net gain of 8 votes he needed to change the outcome of the election.  



                   It was Nageak's burden to show that the malconduct in Shungnak was  

                                                                89 and "every reasonable presumption will  

sufficient to change the result of the election,                                     



                                                                        90  

be indulged in favor of the validity of an election."                       We have concluded that Nageak's  

                                                       



method is legally invalid because it employs a mere average of the number of voters who  

                                                                



chose the Republican ballot over a number of elections including elections that were  



          88       The 2012 and 2016 elections were also quantitatively similar because a  



similar percentage of voters in House District 40 outside Shungnak chose the ADL ballot  

                                                                                 

in 2012 and 2016, as the table shows.  



          89       Boucher v. Bomhoff , 495 P.2d 77, 80 (Alaska 1972).  



          90       Dansereau v. Ulmer , 903 P.2d 555, 559 (Alaska 1995) (quoting Turkington  



v. City of Kachemak, 380 P.2d 593, 595 (Alaska 1963)).  



                                                           -37-                                                      7286
  


----------------------- Page 38-----------------------

                                                                                 

materially dissimilar to the 2016 election.  Thus it was legal error for the superior court  



                                                                                                                     

to rely on and apply Nageak's flawed methodology, and we conclude Nageak has not  



                                                  

met his burden of proving that the election officials' malconduct was sufficient to change  



                                         91                                                                                 92 

the outcome of the election.                 We reverse the superior court's decision on this point.  



V.        CONCLUSION  



                    It  was  error  for  the  superior  court  to  conclude  that  the  malconduct  in  



          91        We note that the superior court did not order a new election but instead  



ordered the Director to certify Nageak as the winner based on its proportionate reduction.  

                               

But we have never proclaimed a new winner based on a proportionate reduction analysis,  

        

and we have admonished Directors for applying proportionate reduction analyses to  

change vote totals instead of submitting the question to us.  Fischer , 741 P.2d at 225-26.  

                                                                             

Indeed,  changing  an  election  result  based  on  a  proportionate  reduction  in  votes  is  

                                                        

unprecedented in Alaska law and is an even more "extreme remedy" than ordering a new  

                                            

election.  See id. at 226 ("In Hammond , we discussed the proportionate reduction rule  

as the only method to properly determine the effect of any bias that affected individual  

votes in a random fashion.  We did not intend, however, that the technique was to be  

used  to actually reduce the candidate's official total."); Hammond, 588 P.2d at  259  

                                                                                                                     

("There were no such numerous serious violations as to permeate the entire election  

process, so as to require the extreme remedy of a new election.").  



          92  

                                 

                    Nageak argues that the double voting in Shungnak caused some voters to  

                           

have more power than others and thus violated constitutional requirements:  "[T]he right  

of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote  

                                    

just as effectively as by wholly prohibiting the free exercise of the franchise."  Bush v.  

 Gore, 531 U.S. 98, 105 (2000) (quoting Reynolds v. Sims , 377 U.S. 533, 555 (1964)).  

But assuming without deciding that constitutional violations did occur, these violations  

                                  

did not change the result of the election and were therefore harmless.  Westlake argues  

                                                                                                      

that discounting votes from Shungnak would disenfranchise Alaska Native voters and  

violate the Voting Rights Act, 52 U.S.C.  10101, 10301 (2012).  According to the  

                                                                                         

2010  census,  Shungnak  is  94.3%  American  Indian  or  Alaska  Native.    U.S.  Census  

Bureau,        Race       and       Hispanic         or    Latino       Origin ,       A 

                                                                                         MERICAN          FACTFINDER ,  

h t t p s : / / f a c t f i n d e r . c e n s u s . g o v / b k m k / t a b l e / 1 . 0 / e n / D E C /   

 10_SF1/QTP3/1600000US0270100 (last visited July 12, 2018).  Because we do not  

discount votes from Shungnak, we do not consider the implications of the Voting Rights  

                                                        

Act.  



                                                            -38-                                                       7286
  


----------------------- Page 39-----------------------

                                                                          

Shungnak was sufficient to change the result of the election.  We therefore REVERSE  



                                                                                                                      

the superior court's order proportionately reducing the vote total in Shungnak.  We agree  



with the Director's certification of the vote in Shungnak.  We AFFIRM the Director's  



certification with respect to Shungnak.  



                                                                           

                    It was error for the Director to count the two questioned ballots in Kivalina.  



                                                                                                             

We REVERSE this decision.  It was also error for the superior court to order that those  



                                                                     

votes be deducted under the election contest statute.  But the result of that order - not  



                                                                                                        

counting the questioned ballots - is correct. We therefore AFFIRM the superior court's  



order reducing one vote from each candidate in Kivalina.  



                                                                                                          

                    We AFFIRM the decisions of both the Director and the superior court on  



               

all other issues.  The Director shall certify Westlake as the winner of the election with  



824 votes to Nageak's 816 votes.  



                                                              -39-                                                         7286
  


----------------------- Page 40-----------------------

WINFREE, Justice, dissenting in part.  



                    I respectfully dissent from that part of the court's opinion reversing the trial  



                                         

court's determination that the election officials' malconduct could have changed the  



                                                                                                   

election  result.    The  court  subtly  changes  the  standard  used  in  past  cases  to  assess  



whether malconduct affected the election, deciding that Nageak was required to show not  



                                               

just that the malconduct  could have changed the result - the standard applied in other  



        1  

          - but that it would have changed the result.  Additionally the court decides as a  

cases                                                                                             



matter of law that the expert opinion the trial court found more credible and relied on in  

                                                                                                                          



making its findings actually was less credible than the expert opinion the trial court  

                                                                                                            



rejected.  But when an election contest decision is reviewed after a full trial, rather than,  

                                                                                                 

say, a summary judgment decision,2 the findings of fact and conclusions of law were  



made by a trial court with the same power to assess credibility and weigh evidence that  

                                                                



trial courts possess in all cases, and the same standards of review should be used and the  



                                                                 

same deference shown to a trial court as in other cases with contested factual disputes.  



                                                                                   

Because the court seems unable or unwilling to say that the trial court's factual findings,  



including  its  credibility  finding,  were  clearly  erroneous,  the  trial  court  should  be  



affirmed, although the election should be declared void and a new election ordered.  



                                                                            

                    I agree with the court that, consistent with the framework in Hammond v.  



Hickel , the malconduct in Shungnak had "a random impact on votes" but the affected  



                                        3 

                                                                           

votes cannot be segregated.   Under the Hammond framework, to determine whether this  



          1         Hammond  v.  Hickel ,  588  P.2d  256,  259  n.5  (Alaska  1978)  (quoting  



Boucher v. Bomhoff , 495 P.2d 77, 80 n.5 (Alaska 1972)).  



          2         Cf.  id.  at  258  (indicating  appeal  was  from  cross-motions  for  summary  



judgment).  



          3         Id. at 260.  



                                                             -40-                                                        7286
  


----------------------- Page 41-----------------------

type of malconduct could have affected the election result, "the contaminated votes must  



                                                                            

be deducted from the vote totals of each candidate in proportion to the votes received by  



                                                                                                                          4 

                                                                                                                            The  

each candidate in the precinct or district where the contaminated votes were cast." 



difficult  question  facing  the  trial  court  after  its  finding  of  malconduct  was  how  to  



                                                                                                                

calculate the number of votes to be deducted from each candidate's total to determine  



whether the malconduct could have changed the election's result.   



                    The election in this case presented a novel situation because the malconduct  



                                                                                        

entailed distribution of two ballots, affecting two different primary elections rather than  



                                                                                           

one election with two candidates or a proposition.  To know with any certainty how the  



malconduct affected the ADL primary - the election Nageak was contesting - required  



                                                                                       

consideration of both the number of voters who may have chosen the ADL ballot and the  



                                           

number of voters choosing the ADL ballot who may have voted for each candidate.  



                                     

Prior cases have never needed to determine how many voters  might have voted in a  



                                                                                                               

particular election; they  needed  only  to  apply  a proportional reduction  to  the  actual  



                                   5  

number of ballots cast.   Because of these complications, and because the malconduct  



                                                                                                                

affected all of the votes in Shungnak, a separate precinct within District 40, the trial court  



was not faced with a simple math problem.  



                    The court today frames the question on review as "whether Nageak has  



                                                                                                    

shown that [the] malconduct was 'sufficient to change the result of the election,' " citing  



          4         Id.  



          5         See, e.g., id. at 272-73 (setting out formula to recalculate vote totals in order  



that  general  election  can  proceed);  see  also  Finkelstein  v.  Stout,  774  P.2d  786,  793  

(Alaska 1989) (applying proportional reduction in recount appeal); Fischer v. Stout, 741  

                       

P.2d 217, 225-26 (Alaska 1987) (rejecting recount challenge after determining that pro  

                            

rata reduction did not change election result).  



                                                              -41-                                                         7286
  


----------------------- Page 42-----------------------

                           6  

                                     

AS 15.20.540(1).             The court discusses the likelihood "that almost all of the[] voters still  



                    

                                                                                                                    

would have  voted  the ADL  ballot" and  posits that "the error of election  officials  in  



                                                                             

Shungnak was harmless unless at least 8 of the 47 voters who voted for Westlake would  

                                                      7  Boucher v. Bomhoff interpreted AS 15.20.540 and  

                                                                                         

have chosen the Republican ballot."  



prior case law as placing on a party challenging an election "the burden of proving that  

                                                                          



                                                                                                          8  

the alleged misconduct could have changed the result of the election."   The two words  



-  "would"  and  "could"  -  have  different  meanings,  with  "could"  "indicat[ing]  

                                                         



                  9  

possibility"     and  "would"  "indicating  the  consequence  of  an  imagined  event  or  



                10  

situation."         In other words, by changing the standard from "could" to "would," the  



                                                         

court puts a greater burden on parties bringing election contests and opens the possibility  



that in future election contests the parties will have to meet something approaching a  



"more likely than not" standard.  This standard is too high:  even a probability of less  



                                                                             

than 50% should be adequate to meet the purpose of an election contest, "establish[ing]  



                                                                                                              11  

doubt as to the validity of [an] election result" because of improprieties.                                       



                    Under either standard the trial court was required to determine how many  

                                                                                                                     



voters  would  have  voted  in  the  Republican  primary  but  for  the  election  officials'  

                       



malconduct.  To assist the trial court in making  necessary findings, both candidates  

                                                                             



          6         Op. at 30.  



          7         Op. at 32-33 (emphasis added).  



          8         495 P.2d at 80 n.5 (emphasis added).  



          9          Could,  Definition  1,  Oxford  English  Dictionaries:    English,  https://en.  



oxforddictionaries.com/definition/could (last visited Mar. 15, 2018).  



          10         Would,  Definition  2,  Oxford  English  Dictionaries:    English  (emphasis  



added),  https://en.oxforddictionaries.com/definition/would (last  visited Mar.  15, 2018).  



          11        Braun v. Denali Borough , 193 P.3d 719, 731-32 (Alaska 2008).  



                                                               -42-                                                         7286
  


----------------------- Page 43-----------------------

offered expert witnesses.  Randall Ruedrich - Nageak's expert - was qualified as an   



expert  in  "[i]rregularities  in   election  handling"  (over  the  State's  objection)  and  



"evaluation of voter turnout data in order to determine the impact of such irregularities."         



John Henry Heckendorn - Westlake's expert - was qualified as an expert in analysis                     



of "voter patterns" in House District 40, evidently without objection.  Neither expert  



indicated he had any special training or expertise in statistics or applied mathematics.  



                                                                        

Instead, both experts testified based on their experiences from political campaigns.  The  



experts offered differing analyses and conclusions, and the trial court found Ruedrich's  



                                                                                          

"testimony more authoritative and reliable."  Based on this credibility finding, the trial  



                                                                                                                             

court used Ruedrich's calculation and made a factual finding of the number of voters  



                                                                                                                       

who would have selected the Republican ballot without the malconduct; it then used the  



                                                                                                        

Hammond framework to reduce the two candidates' vote totals proportionately.  This  



                                                            

method led to the conclusion that the malconduct could have changed the election result.  



                                                                     

                      On appeal, the court reviews Ruedrich's method de novo and concludes it  



                                                     

"does  not  take  into  account"  certain  factors  that  the  court  decides  are  "legally  



                    12  

                        The court does not articulate a standard of general applicability for all  

significant."                                      



election  contests  and  gives  no  guidance  to  trial  courts  about  what  factors  it  might  

consider "legally significant" in other primary or general elections.13  Instead, the court:  

                                                                                                               

(1) holds that it was "legal error for the superior court to adopt Ruedrich's method";14  



(2) "agrees" with "Heckendorn's method of analysis," even though it criticizes some  



           12         Op. at 35 & note 87.  



           13         Op. at 35.  



           14         Op. at 35.  



                                                                  -43-                                                             7286
  


----------------------- Page 44-----------------------

aspects of his calculations;15 and (3) "do[es] not hold that Heckendorn's method is the   



                                 16  If there were a clearly articulated formula about how to calculate  

only or best method."                 



the impact of malconduct in election contests, an expert's deviation from that rule might  

                                                                                         



be legally erroneous.  But there is no such rule, and the court does not announce one  

                                                            



today.  The court is either reweighing the expert testimony and affording more weight  



                                 

to Heckendorn than to Ruedrich, or it is conducting a trial de novo on the record and  

simply rejecting what it dislikes as "legally invalid."17  This is a clear departure from the  



customary review of trial court decisions.  



                                                  

                    An expert must be qualified "by knowledge, skill, experience, training, or  



education" when "scientific, technical, or other specialized knowledge will assist the trier  



                                                                                                        18  

                                                                                                             Trial courts are  

of fact to understand the evidence or to determine a fact in issue." 



                                

generally  accorded  discretion  in  determining  whether  to  admit  non-scientific  expert  

                19 and "[t]he weight to be given to expert testimony is within the province of  

testimony,                                                                                                          



                          20  

the trier of fact."           While the experts in this case may not have used detailed statistical  



                                                                                                            

analyses - and, indeed, were not qualified to do so - they offered opinions in their  



                                         

areas of expertise that the trial court was entitled to evaluate for credibility and weight.  



          15         Op. at 37.  



          16         Op. at 37.  



          17         Cf. Op. at 37.  



          18        Alaska R. Evid. 702(a).  



          19        Marron v. Stromstad , 123 P.3d 992, 998 (Alaska 2005).  



          20        State v. Phillips, 470 P.2d 266, 272 (Alaska 1970).  



                                                               -44-                                                          7286
  


----------------------- Page 45-----------------------

Given these liberal admissibility standard for expert testimony,21 the trial court's decision  



     

to accept and evaluate the expert testimony here was not an abuse of discretion.  And in  



                                                                                                       

light of the nature of the expert testimony the parties presented, I cannot conclude that  



                                                                                      

the trial court's finding that Ruedrich's opinion was "more authoritative and reliable"  



                                                                                                                            

was clearly erroneous.  The court certainly is unable, or unwilling, to do so.  It instead  



conjures heretofore unknown ad hoc legal requirements invalidating Reudrich's opinion.  



                                                                        

                     The result of today's opinion is to make election contests more difficult for  



                                       

both the parties and the trial court.  A showing that malconduct would affect the result  



                                                                                         

is stricter than a showing that it could affect the result.  And because the court does not  



                                             

set  out  specific  guidelines  for  parties  or  trial  courts  to  use  in  future  election  cases,  



                                                                                                         

participants in those cases cannot know what new ad hoc factors this court may decide  



                                           

in the future are "legally  significant," injecting a great amount of uncertainty into a  



                                                                                      

process that usually proceeds in a highly expedited  fashion.  I would adhere to our  



                         

precedent  and  our  customary  standard  of  review  and  would  affirm  the  trial  court's  



malconduct  determination,  although  I  would  remand  for  a  new  primary  election.    I  



respectfully dissent from that part of the court's opinion holding otherwise.  



           21        Marron , 123 P.3d at 1002 (explaining "our 'liberal admissibility standard'   



for expert testimony allows any person with specialized knowledge to serve as an expert  

witness . . . . [n]o specific training or formal education is required" (quoting John's  

Heating Serv. v. Lamb , 46 P.3d 1024, 1034 (Alaska 2002))).  



                                                                  -45-                                                            7286
  


----------------------- Page 46-----------------------

            In the Supreme Court of the State of Alaska
  



In the Matter of the                                        )      Supreme Court Nos. S-16462,  

                                                            )            S-16492, and S-16494  

                                                            )                 (consolidated)  

2016 State House District 40                                )  



Primary Election                                            )                     Order  

                                                            )  

                                                            )  

                                                            )          Date of Order: 10/12/16  

Division of Elections Recount;  

3AN-16-09015CI  



         Before:	          Stowers, Chief Justice, and Winfree, Maassen, Bolger, and Carney,  

                                                  

                            Justices  



         Before the court are consolidated appeals: S-16462 is an election recount appeal  

                                                                     

from the August 16, 2016 primary election, filed by Benjamin N. Nageak; S-16492 is Lt.  

Governor  Byron  Mallott's  appeal  from  the  superior  court's  Findings  of  Fact  and  

Conclusions of Law dated October 6, 2016 (Decision and Order) following its trial on  

Mr. Nageak's election contest action also arising from the August 16 primary; S-16494  

is Dean Westlake's appeal from the superior court's Decision and Order in the election  

                                                                         

contest case.  This court has considered the briefs of the parties and the record from the  

                                                                                        

superior court, and conducted oral argument on October 12, 2016.  



         IT IS  ORDERED that the superior court's Decision and Order to the Division of  

                                                                                         

Elections to retabulate the vote total from the Shungnak precinct and certify Mr. Nageak  

     

as  the  winner  of  the  Democratic  primary  in  House  District  40  is  REVERSED .    The  

                                                                                               

Division of Elections' certification of Mr. Westlake as the winner of the House District  

40 Democratic primary is R                                                               

                                        EINSTATED .   The superior court's Decision and Order is  

                               *  

               

otherwise AFFIRMED .  



         *This affirmance includes the superior court's Decision and Order concluding that  

the Division of Elections Director's determination to count seven questioned ballots in  

Kivalina was erroneous.  The superior court correctly ordered that the seven questioned  

ballots must be disregarded; because two of the questioned ballots were on the combined  

Alaska Independent-Democrat-Libertarian ballot with one vote for each candidate, the  

superior court also correctly directed the Director to deduct one vote from each candidate.  



                                            Appendix Page 1 of 4                                                   7286  


----------------------- Page 47-----------------------

In the Matter of the 2016 State House District 40 Primary Election  

Supreme Court Nos. S-16462/16492/16494  

Order of 10/12/16  

Page Two  



         A written opinion explaining this court's Order will be forthcoming.  



         Entered at the direction of the court.   



                                                             Clerk of the Appellate Courts  



                                                                                                                        

                                                             /s/Marilyn May  



WINFREE, Justice, concurring in part and dissenting in part.  



         I agree with the court that - as Mr. Nageak's counsel  conceded during oral  

argument - the superior court's order directing the Division of Elections to certify  

Mr. Nageak as the winner of the Alaska Democratic Party primary election in House  

District 40 was legal error and must be reversed.  But in my view the superior court  

                 

correctly determined that - as to the primary election in the Shungnak precinct - the  

Division of Elections committed malconduct that could have affected the election result  

                                                                                           

between Mr. Nageak and Mr. Westlake.  Accordingly I would declare the election void  

                                                                                   

and direct the Division of Elections to hold a new election.  



                                          Appendix Page 2 of 4                                               7286  


----------------------- Page 48-----------------------

Appendix Page 3 of 4                         7286  


----------------------- Page 49-----------------------

Appendix Page 4 of 4
                         7286  

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