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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Edgmon v. Slate, Office of Lieutenant Governor, Division of Elections (02/16/2007) sp-6099

Edgmon v. Slate, Office of Lieutenant Governor, Division of Elections (02/16/2007) sp-6099, 152 P3d 1154

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


            THE SUPREME COURT OF THE STATE OF ALASKA

BRYCE EDGMON, )
)
Applicant, )
)
v. ) Supreme Court No. S- 12436
)
STATE OF ALASKA, OFFICE ) O P I N I O N
OF LIEUTENANT GOVERNOR, )
DIVISION OF ELECTIONS, ) No. 6099 - February 16, 2007
WHITNEY BREWSTER, Director, )
)
Respondent, )
)
CARL MOSES, )
)
Intervenor. )
)


          Original  Application  for  Relief   to   the
          Supreme Court.

          Appearances:  Joseph W. Geldhof,  Law  Office
          of  Joseph W. Geldhof, Juneau, for Applicant.
          Sarah  J.  Felix, Assistant Attorney General,
          and   David  W.  M rquez,  Attorney  General,
          Juneau,  for Respondent.  Thomas  P.  Amodio,
          Amodio  Stanley & Reeves LLC, Anchorage,  for
          Intervenor Moses.

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh,  and Bryner, Justices.  [Carpeneti,
          Justice, not participating.]

          FABE, Chief Justice.

I.   INTRODUCTION
          This appeal arises out of a dispute over the results of
a  recount  in the District 37 Democratic primary election.   The
incumbent representative, Carl Moses,  requested a recount  after
the  official election results showed Bryce Edgmon as the  winner
by  one  vote, with 765 votes for Edgmon and 764 votes for Moses.
The  State Division of Elections conducted a recount which showed
Moses  as  the winner by one vote.  Edgmon appealed  the  recount
results,  alleging  that the Division had  improperly  failed  to
count  six  ballots.1  Because the issues  raised  in  this  case
required  expedited resolution due to the deadlines for  printing
ballots  in advance of the November 2006 election, we  issued  an
oral  order on the record on September 21, 2006, ruling that  the
five contested ballots should be counted.  This opinion sets  out
the reasons for our ruling.
II.  FACTS AND PROCEEDINGS
          Bryce  Edgmon ran against incumbent Carl Moses  in  the
Democratic Party primary election held on August 22, 2006 for the
District  37  State House of Representatives seat.  On  September
12,  2006, the State Division of Elections certified the election
results  showing Edgmon with 765 votes as the winner over  Moses,
who  received  764 votes.  Moses requested a recount,  which  the
Division  conducted and which showed Moses as the winner  by  one
vote,  with 765 votes to Edgmon's 764.  At the recount,  Division
Director  Whitney Brewster determined that six ballots could  not
be counted.
          Both candidates challenged the Division's determination
that  three  ballots  could  not be  counted  because  they  were
"overvoted."  An "overvoted" ballot is when a voter  "marks  more
names  than  there are persons to be elected to the  office,"  in
which  case "the votes for candidates for that office may not  be
counted."2   Brewster  concluded  that  the  three  ballots   had
sufficient marks in the ovals next to both candidates so that  AS
15.15.360(a)(4)  precluded  counting  them.   Two  of  the  three
ballots  had  completely shaded ovals next to Edgmon's  name  but
also  contained tracings that touched the edge of the ovals  next
to Moses's name.  The third ballot had an "X" in the oval next to
Moses's  name  but also had a line appearing to  cross  out  both
Edgmon's name and the oval next to his name.
          The  candidates also challenged the Division's decision
not  to count two special needs ballots.3  A special needs ballot
allows  a  qualified  disabled voter to vote through  a  personal
representative.4   Brewster rejected two  special  needs  ballots
because  the  personal  representative completed  the  lines  for
residence address, but left the lines for mailing address  blank.
The form has separate lines for the two addresses.
          On  September 19, 2006, Edgmon appealed the  Division's
decisions,  asking  for  an  expedited  hearing  to  review   the
Division's determinations.  Moses moved to intervene and did  not
oppose  Edgmon's request for an expedited hearing.  The  Division
requested a decision no later than September 22, 2006, to  ensure
that the ballots be sent to the printer in time to meet statutory
distribution  deadlines.  We held oral argument on September  21,
2006, and issued a decision on the record that same day.
III.      STANDARD OF REVIEW
          No  disputes  of  material fact exist  in  this  case.5
          Resolution of the case requires that we interpret statutory
provisions  and  apply  those  provisions  to  the  facts.    The
interpretation of statutory provisions is a question of law  that
we  subject  to  our independent review.6  Under the  independent
judgment  standard,  we  adopt "the rule  of  law  that  is  most
persuasive in light of precedent, reason, and policy."7
IV.  DISCUSSION
     A.   Ballots Excluded as "Overvotes" Should Be Counted.
          Edgmon  argues  that the Division should  have  counted
three  ballots that Brewster excluded as overvoted.  The Division
argues  that  all  three  ballots were  overvoted  in  that  they
contained marks for both candidates.  Proper disposition  of  the
ballots  requires  that we carefully examine AS 15.15.360,  which
governs  the counting of ballots.8  Subsection .360(a)(4) directs
the  Division not to count a ballot if the voter marks more names
than  there are open seats for that office.  Whether the Division
appropriately  categorized the ballots  as  containing  overvotes
depends  on  whether  the  markings  next  to  the  second   name
constituted "marks" to designate a vote.9
          Subsection  .360(a)(1) limits  the  ways  a  voter  may
"mark" a ballot to " `X' marks, diagonal, horizontal, or vertical
marks,  solid marks, stars, circles, asterisks, checks,  or  plus
signs  that are clearly spaced in the oval opposite the  name  of
the  candidate."   Subsection .360(a)(5) further clarifies  which
marks  meeting  the requirements of (a)(1) should be  counted  as
votes,  providing  that  "[t]he mark specified  in  (1)  of  this
subsection  shall  be counted only if it is substantially  inside
the oval provided, or touching the oval so as to indicate clearly
that the voter intended the particular oval to be designated."10
           Reading these provisions together, an overvote  occurs
if the voter has voted for two candidates with "marks" as defined
by subsection .360(a)(1) that clearly indicate the voter's intent
to vote for more than one candidate.11  Because a mark meeting the
requirements  of subsection .360(a)(1) cannot be  counted  unless
the  voter's  intent is clear, we begin by analyzing whether  the
second  mark  on  each  overvoted ballot  clearly  indicated  the
voter's intent to vote for a second candidate.
          Moses  argues in favor of a bright line rule that would
consider the ballots overvoted without examining voters'  intent.
But  the terms of the statute itself make voter intent paramount.
The statute requires that before a mark is counted as a vote,  it
must comply with the requirements under subsection .360(a)(1) and
clearly   indicate  voter  intent  as  required   by   subsection
.360(a)(5).   These  terms  are  mandatory  and  require   strict
compliance.12  Contrary to Moses's argument that judicial  review
of   ballots   would  open  a  "Pandora's  Box,"   AS   15.20.510
specifically  envisions  such  a  review  in  a  recount  appeal,
providing that "[t]he 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."
          Moreover,   we   have   consistently   emphasized   the
importance  of  voter intent in ballot disputes.   In  Willis  v.
Thomas,  we  noted  that  ballots should be  counted  where  they
          "present clear evidence of the voters' intent."13  Similarly, in
Finkelstein  v.  Stout, we held that ballots  should  be  counted
where  a  voting machine was "voting low" and the voters'  intent
was  clear.14  Other state high courts have also looked to  voter
intent  in  resolving ballot disputes.  In considering a  recount
appeal,  the  Maine Supreme Judicial Court ruled  that  a  ballot
should  be  counted where a voter had placed an "X" next  to  two
candidates' names, but had scribbled over one "X."15   The  court
reasoned  that "scribbling out . . . [is a] common method[]  used
by  voters  to  retract  a cast vote,"  and  noted  that  it  was
"unlikely that the voter intended to vote for two candidates  for
the  same  office."16 Similarly, the Wisconsin Supreme Court  has
emphasized  that "the voter shall not be disenfranchised  because
of mere mistake, but his intention shall prevail."17
           The  voters' intent on the three ballots  excluded  as
"overvoted"  is  clearly  to vote for only  one  candidate.   The
second  marks are improper marks - not votes.  At oral  argument,
the Division cited Willis v. Thomas18 for the proposition that  a
mark  touching  any  part  of the candidate's  square  should  be
counted  as a vote.  But as we emphasized in Willis, "the crucial
question in determining the validity of ballot markings is one of
voter intent."19
          In the case of the two ballots with a completely shaded
oval  next to Edgmon's name and a trace touching the edge of  the
oval  next to Moses's name, the voter completely shaded the  oval
for  all  other  races on the ballot.20  A review of  the  entire
ballot therefore suggests that the voter understood the rules and
used  a  completely shaded oval - not a trace of an edge  of  the
oval - to indicate a vote.  Under these circumstances, such stray
marks  cannot  be read to clearly indicate an intent  to  vote  a
second  time  in the same race.  Given the command of  subsection
.360(a)(5), that only marks clearly indicating an intent to  vote
be  counted as votes, these marks cannot be counted as  overvotes
and the ballots should be counted as votes for Edgmon.
          The  third allegedly overvoted ballot has an "X" in the
oval  next  to Moses's name and a line striking through  Edgmon's
name  and the oval next to it.  This ballot is not overvoted  and
should  be  counted.  In all other races, the voter  indicated  a
vote  with a single "X" in the oval next to one candidate's name.
The  line  extending  through Edgmon's name  cannot  be  said  to
indicate an intent to cast a vote for Edgmon.  Instead, a marking
crossing or striking out a candidate's name accompanied by a vote
for  the  other  candidate suggests an emphatic  vote  against  a
candidate.  Where accompanied by an "X" in the oval next  to  the
other  candidate's name in the same manner as all other votes  on
the  ballot, the line through Edgmon's name and the oval next  to
it is a stray marking.  The ballot is not overvoted and should be
counted as a vote for Moses.
     B.     Special  Needs  Ballots  Should  Be  Counted  by  the
Division.
          Edgmon challenges the Division's determination that two
special  needs ballots should not be counted where  the  personal
representative completed the section for residence  address,  but
did not separately fill out the blank for a mailing address.  The
          Division argues that the representatives thus failed to set out
their mailing addresses as required by statute.
          Alaska  Statute 15.20.072(c)(2) requires that  personal
representatives  provide both residence and mailing  addresses.21
But we are persuaded that if the addresses are the same, a single
listing  meets  the terms of the statute.  As  Moses  notes,  the
statute does not require that the addresses be listed on separate
lines or set out twice by individuals whose mailing and residence
addresses  are  the same.  Nor does the Division  of  Elections's
form  indicate  that the address should be listed  twice  if  the
residence and mailing address are the same.22  A reasonable person
could  infer that the second address line need only be  completed
if the mailing and residence addresses are different.
          In  this  case, it is fair to infer that  the  personal
representatives' mailing and residence addresses  are  the  same.
Both  personal  representatives reside  in  Anchorage.   We  take
judicial  notice  that  unlike some  communities  in  the  state,
Anchorage  is  a community with home delivery for  a  significant
portion  of  its  residents.  In each  case,  the  representative
listed  a street name and number, along with a postal zip code.23
In  each  case,  the address appears on its face  to  be  both  a
mailing  and  a residence address.  This is not a case  where  an
individual has listed a post office box which could not  possibly
be  a  residence  address,24 or a park bench25  which  could  not
possibly be a mailing address.  Moreover, the burden of proving a
vote  should not be counted is on the challenger to that  vote.26
The  Division  provided  nothing to suggest  that  the  addresses
provided  by  the  representatives  were  not  both  mailing  and
residence addresses.27
          Not  only do the addresses appear on their face  to  be
both  mailing  and  residence addresses, but an  elections  clerk
reviewed  the  personal representatives' forms before  issuing  a
ballot  to them.  Issuance of the ballot after receipt and review
of  the form suggests that Division staff found the form to  meet
statutory requirements at the time the ballot was issued.   Given
the  importance  of  the  "opportunity  to  freely  cast  [one's]
ballot,"28 we will not disenfranchise special needs voters  where
the  personal  representatives' forms appear  on  their  face  to
comply with the statute.
          Absent any specific statutory or regulatory requirement
that  addresses be listed separately, where there is a reasonable
inference  that the addresses are the same and the  Division  has
failed to produce any evidence to suggest that the addresses  are
not the same, the ballots at issue must be counted.
V.   CONCLUSION
          For  these reasons, we ordered that the Division  count
the five contested ballots.  Of the three ballots not counted  as
overvoted, two were to be counted as votes for Edgmon and one was
to  be counted as a vote for Moses. The two special needs ballots
were  returned  to  the  Division to be  opened  and  counted  in
accordance  with Division procedures for counting  special  needs
ballots.
_______________________________
     1     Although  Edgmon  originally appealed  the  Division's
determination that six ballots could not be counted, all  parties
stipulated  that one ballot was properly not counted because  the
voter was not registered.
     2    AS 15.15.360(a)(4).
     3     Edgmon  also  challenged one  ballot  disputing  voter
registration status.  The parties later stipulated that  Brewster
properly determined that the ballot should not be counted.
     4    AS 15.20.072.

     5     In  our  order of September 20, 2006, we  ordered  the
parties to submit a list of any disputed material facts prior  to
oral  argument on September 21.  The parties submitted  no  list,
confirming that no material facts were in dispute.
     6     N.W.  CruiseShip Ass'n of Alaska v. State,  Office  of
Lieutenant Governor, Div. of Elections, 145 P.3d 573, 576 (Alaska
2006).
     7    Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
     8    The relevant subsections of AS 15.15.360 provide:

                    (a)  The election board shall count
          ballots according to the following rules:
          
                    (1)  A voter may mark a ballot only
          by  filling  in, making "X" marks,  diagonal,
          horizontal,  or vertical marks, solid  marks,
          stars,  circles, asterisks, checks,  or  plus
          signs  that  are clearly spaced in  the  oval
          opposite   the   name   of   the   candidate,
          proposition,  or  question  that  the   voter
          desires to designate.
          
                     (2)  A failure to properly mark  a
          ballot as to one or more candidates does  not
          itself invalidate the entire ballot.
          
                     (3)   If a voter marks fewer names
          than  there are persons to be elected to  the
          office,  a  vote  shall be counted  for  each
          candidate properly marked.
          
                     (4)   If a voter marks more  names
          than  there are persons to be elected to  the
          office,  the  votes for candidates  for  that
          office may not be counted.
          
                     (5)  The mark specified in (1)  of
          this  subsection shall be counted only if  it
          is substantially inside the oval provided, or
          touching  the oval so as to indicate  clearly
          that  the voter intended the particular  oval
          to be designated.
          
                     (6)   Improper marks on the ballot
          may  not  be  counted and do  not  invalidate
          marks for candidates properly made.
          
                      (7)   An  erasure  or  correction
          invalidates only that section of  the  ballot
          in which it appears.
          
     9      If  not,  they  are  "improper  marks"  that  do  not
"invalidate   marks   for   candidates   properly   made."     AS
15.15.360(a)(6).
     10    AS 15.15.360(a)(5) (emphasis added).
     11     Given  the  comma before the words "or  touching  the
oval,"  the  intent clause could be read to apply only  to  marks
touching  the  oval.  But we do not read the  clause  in  such  a
limited  manner.   First,  we  can  discern  no  reason  for  the
legislature to mandate that voter intent apply only to  one  type
of  ambiguous mark.  Second, the legislative history suggests the
clause should apply to both circumstances.  The original statute,
enacted  in  1960, contained a list of three circumstances  where
marks  should count as votes: "The mark shall be counted only  if
it  is substantially within the square provided, or touching  the
square  and no other, or placed near the square so as to indicate
clearly  that  the  voter intended the particular  square  to  be
designated."   Ch.  83,   3.36(5), SLA 1960.   A  1963  amendment
deleted  the last item in the list of three ("or placed near  the
square") but left the modifying intent clause.  Ch. 80,   8,  SLA
1963.  The presence of the comma is likely therefore explained by
the fact that it originally separated a list of three.  Based  on
this  history and the importance of voter intent in election case
law  as detailed later in this opinion, we read the intent clause
to apply to both types of ambiguous marks.
     12     AS 15.15.360(b) provides that "[t]he rules set out in
this section are mandatory and there are no exceptions to them."
     13    600 P.2d 1079, 1085 (Alaska 1979) (holding that voter's
intent  was not clear and punchcard ballots could not be  counted
for  Willis  where the voter circled the box opposite candidates'
names  and then punched out all of the circled boxes except  that
opposite Willis's name).
     14     774 P.2d 786, 792 (Alaska 1989); see also Fischer  v.
Stout,  741  P.2d  217, 221 (Alaska 1987) (holding  that  voter's
intent  was clear where voter used pen rather than the  punchcard
machine).
     15     In re Primary Election Ballot Disputes 2004, 857 A.2d
494, 503 (Me. 2004).
     16    Id.
     17     Roth  v.  LaFarge Sch. Dist., Bd. of Canvassers,  677
N.W.2d  599,  605 (Wis. 2004) (quoting State ex rel. Blodgett  v.
Eagan, 91 N.W. 984 (Wis. 1902)).
     18    600 P.2d at 1085.
     19    Id.
     20    See, e.g., In re Primary Election Ballot Disputes 2004,
857 A.2d at 504 (reasoning that "[g]iven the voter's demonstrated
ability  to  comply with the instructions and fully darken  ovals
when voting, we cannot reasonably interpret this mark as anything
other than a stray marking").
     21     AS 15.20.072.  The relevant portion of subsection (c)
requires that

                [i]f  the  request for a special  needs
          ballot is made through a representative,  the
          representative shall sign a register provided
          by  an election official.  The register  must
          include the following information:
          
                    (1)  the representative's name;

                    (2)  the representative's residence
          and mailing address . . . .
          
     22     Nowhere  does  the  form specify  that  both  address
sections must be completed, even if the addresses are the same.
     23    Indeed, one of the personal representatives provided a
nine-digit postal zip code.
     24     See  Fischer,  741 P.2d at 221 n.7  (taking  judicial
notice  that  "human  beings  are  of  insufficiently  diminutive
stature to dwell comfortably within [a post office box]").
     25    See id. at 221.
     26    Finkelstein, 774 P.2d at 788.
     27     The Division expressed concern at oral argument about
the  administrability  of  requiring the  Division  to  determine
whether  an  address is both a residence and a  mailing  address.
However, the Division could resolve this by revising its form  to
specify  that  representatives must complete the mailing  address
section if different from the residence address.
     28     Carr v. Thomas, 586 P.2d 622, 626 n.11 (Alaska  1978)
(citations omitted).
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