Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions

Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.


You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kathryn Dodge v. Kevin Meyer, Lt. Gov., et al.; Barton LeBon and Alaska Republican Party (7/5/2019) sp-7382

Kathryn Dodge v. Kevin Meyer, Lt. Gov., et al.; Barton LeBon and Alaska Republican Party (7/5/2019) sp-7382

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                       

KATHRYN  DODGE,                                                  )  

                                                                 )    Supreme Court Nos. S-17301/17311  



           Appellant and Cross-Appellee,                         )  

                                                                 )    Superior  Court  No.  3AN-18-00001  RA  

           v.                                                    )  


                                                                 )    O P I N I O N  


KEVIN MEYER, Lieutenant Governor  )



of the State of Alaska, and GAIL                                 )    No. 7382 - July 5, 2019


FENUMIAI, Director of the Alaska                                 )


Division of Elections,                                           )


           Appellees,                                            )


           and                                                   )



BARTON LeBON and the ALASKA                                      )


REPUBLICAN PARTY,                                                )



           Intervenors and Cross-                                )

           Appellants.                                           )



                                   rom the Alaska Division of Elections.  

                     Appeal f 


                     Appearances: Patrick W. Munson, Boyd, Chandler, Falconer  


                      & Munson, LLP, and Thomas P. Amodio, Reeves Amodio,  


                      LLC,       Anchorage,             for   Appellant            and      Cross-Appellee.  


                     Katherine  Demarest,  Laura  F.  Fox,  and  Margaret  Paton- 


                     Walsh, Assistant Attorneys General, Anchorage, and Kevin  


                      G.  Clarkson,  Attorney  General,  Juneau,  for  Appellees.  


                      Stacey C. Stone and Molly A. Magestro, Holmes Weddle &  


                     Barcott,         PC,   Anchorage,               for   Intervenors            and      Cross- 


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

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

                                                                                  *  [Winfree, Justice,  

                    Carney, Justices, and Fabe, Senior Justice.                                     

                    not participating.]  


                    BOLGER, Chief Justice.  



                    This recount appeal arises from the 2018 Alaska House of Representatives  


race in District 1.  Following a recount the election was certified, with Kathryn Dodge  


receiving 2,662 votes and Barton LeBon receiving 2,663.   Dodge filed this recount  


appeal pursuant to AS 15.20.510.  On January 4, 2019, we issued an order affirming the  


recount decision and indicated that this opinion would follow.  




                    In the November 6, 2018 general election, Dodge and LeBon ran for the  


House District 1 seat in the Alaska House of Representatives. On November 26 the State  


Division of Elections (the Division)  certified the election result as a tie, with each  


candidate receiving 2,661 votes.1   The tie triggered an automatic recount.2                                    The recount  


was held on November 30, and representatives of each candidate and political party had  


the opportunity to observe and challenge the Division's vote-counting decisions.  The  


          *         Sitting   by   assignment   made   under   article   IV,   section   11   of   the   Alaska  

Constitution  and  Alaska  Administrative  Rule  23(a).  

          1         See   Press   Release,   Alaska   Div.   of   Elections,   Election   Officials   Certify  

House   District   1   Race   as   a   Tie   (Nov.   26,   2018),  


          2         AS  15.15.460 provides:                 "If  two  or  more  candidates  tie  in  having  the  


highest number of votes . . . [t]he director shall immediately proceed with the recount of  


votes . . . ."  


                                                               -2-                                                        7382

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

Division counted two additional votes for LeBon and one additional vote for Dodge; the                                                                                                                


State Elections Director (the Director) certified LeBon as the winner by one vote.                                                                                                                    

                                During the recount on November 30, Dodge challenged four ballots.  She  


argued that one ballot, excluded as "overvoted"  because it contained markings in more  


than one oval, should have been counted for her; that two counted ballots should have  


been excluded because they had been cast by individuals who were not residents of the  


district; and that one ballot, excluded due to the voter's registration in another district,  


should have been counted because the voter's registration in the other district was  


inadvertent.  LeBon challenged the same overvoted ballot as Dodge, but he argued it  


should have been included as a vote for him.  LeBon also challenged five additional  


ballots. The Director maintained her original vote-counting decisions in the face of these  


nine challenges.  


                                On December 5 Dodge filed this recount appeal challenging the Director's  


                                                                                                                                                 4     LeBon and the Alaska  

recount decisions on the four ballots Dodge had challenged.                                                                                                                                 


Republican Party filed a motion to intervene on December 7 and then cross-appealed on  


December 10, requesting review of the six ballots LeBon had challenged. We appointed  


Superior Court Judge Eric A. Aarseth to serve as a special master to conduct hearings  


and other proceedings as necessary to make a report with recommended findings of fact  


                3               See  Election Summary, Alaska Div. of Elections, Official Recount Results                                                                                   

(Nov. 30, 2018),;       

Press Release, Alaska Div. of Elections, House District 1 Candidate Barton LeBon                                                                                                            

PrevailsBy OneVoteDuringRecount(Nov.30,2018),                                                   


                4               See AS 15.20.510.  


                                                                                                   -3-                                                                                           7382

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


and conclusions of law.                                       Judge Aarseth held an evidentiary hearing on December 20 and                                                                                      

issued his recommendation report on December 21. He                                                                                     recommended that "all decisions  

of the Director in conducting the recount for House District 1 be upheld."  The parties                                                                 

then   filed   briefing  with  objections   to   Judge   Aarseth's   report   and   responses   to   the  


III.             STANDARD OF REVIEW                             

                                  This case does not present any factual disputes but instead involves only                                                                                                  

statutory interpretation. "We exercise independent judgment when interpreting statutes                                                                                                                                     

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


policies," such as the election statutes at issue here.                                                                                                                

                                                                                                                                      "[W]e adopt 'the rule of law that  



is most persuasive in light of precedent, reason, and policy.' " 

IV.              DISCUSSION  


                 A.              Record Considered On Recount Appeal  


                                  One preliminary issue in this appeal is whether we may consider only the  


record developed during the recount or if we may also consider new evidence introduced  


by  the parties during this appeal.   Dodge argues that we should consider evidence  


submitted after the conclusion of the recount. In response the State argues that the record  


should be limited to the materials available to the Director at the time of the recount. We  


need not determine the scope of the evidence we may consider in a recount appeal,  

                 5               We are grateful to Judge Aarseth for his careful consideration of the issues                                                                                             

presented and the timely preparation of his report.                                                          

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


                 7               Edgmon v. State,Officeof LieutenantGovernor, Div.of Elections, 152 P.3d  


 1154, 1156 (Alaska 2007) (quoting Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)).  


                                                                                                         -4-                                                                                                7382

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

however, for we would affirm the Director's recount decision even if we considered the                                                                  

evidence admitted at the hearing.                           8  


            B.          The Over-Marked Ballot  


                        Alaska Statute 15.15.360 provides the rules that govern how the Division  


counts ballots.  A voter is limited to marking 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  



                        Alaska Statute 15.15.360(a)(4) additionally states that "[i]f 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."  And AS 15.15.360(b) provides that "[t]he rules set out  


in this section are mandatory and there are no exceptions to them.  A ballot may not be  


counted  unless  marked  in  compliance  with  these  rules."                                                      Nonetheless  we  have  

emphasized that "the crucial question in determining the validity of ballot markings is  



one of voter intent." 


                        Dodge challenges the exclusion of a ballot that is marked with filled-in  


ovals for both LeBon and Dodge, but also an X over the oval for LeBon.  Dodge argues  


it is more probable that the X was intended to cancel the mark for LeBon than the X was  


intended to emphasize it. But the voter's intent is not clear since both the X and filled-in  


oval are valid marks for selecting a candidate, and the voter used valid marks in the ovals  


for each candidate.   Thus the ballot has been over-marked,  and  we agree with the  


Director's decision not to count this ballot.  

            8           See infra        subsections IV.C.2 and IV.C.3.              

            9           AS 15.15.360(a)(1).   



                         Willis v. Thomas, 600 P.2d 1079, 1085 (Alaska 1979).  

                                                                            -5-                                                                    7382

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

              C.           Ballots Challenged Based On The Voter's Registration                                       

                           Under the Alaska Constitution, "[v]oters in state and local elections must                                                                


be residents of the election district in which they vote."                                                                                                        

                                                                                                                 Residence is defined by statute  


as "that place in which the person's habitation is fixed, and to which, whenever absent,  



the person has the intention to return."                                            The legislature has created a presumption of  


residency under AS 15.05.020(8):  "The address of a voter as it appears on the official  


voter registration record is presumptive evidence of the person's voting residence. This  


presumption is negated only if the voter notifies the [D]irector in writing of a change in  


voting residence."  


                           1.           Norma Knapp's registration  


                           Norma Knapp has been registered to vote in House District 1 since 2010.  


Before the recount Dodge presented evidence that Knapp's address appeared to be for  


a car repair business and not a residence, and at the hearing before the special master,  


Dodge testified over objection that an employee at the business told her Knapp resides  


in New Mexico. Dodge argues that this evidence demonstrates that Knapp is not a valid  


resident of the district where she voted, and thus her vote should not have been counted.  

But AS 15.05.020 explicitly provides that the address on the official voter registration  

record must be presumed valid unless the voter provides written notice of a change of  



address. And we have liberally construed a voter's residence.                                                                 We therefore agree with  

              11           Fischer v. Stout                , 741 P.2d 217, 221 (Alaska 1987) (citing Alaska Const.                                                              

art. V,  1; AS 15.05.010(4)).            

              12           AS 15.05.020(2).  


              13           Fischer, 741 P.2d at 221 ("A residence need only be some specific locale  


within the district at which habitation can be specifically fixed. Thus, a hotel, shelter for  


the homeless, or even a park bench will be sufficient.").  


                                                                                    -6-                                                                             7382

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

the Director's decision to count this ballot based on the presumptive validity of Knapp's                                                                                                  


                                2.              David Odom's registration              

                                David Odom has been registered to vote in House District 1 since 2004.                                                                                                           

Before the recount Dodge presented evidence that Odom's registered address appeared                                                                                                      

to be for an office in an industrial park, not a residence. At the hearing before the special                                                                                                  

master, Dodge filed an affidavit from Odom stating that he did not reside in House                                                                                                             

District   1   before   the   election.     The   special   master   ruled   that   this   affidavit   was  


inadmissible hearsay.                                                                                                                            

                                                          Odom did not testify at the hearing.  


                                Dodgedoes notchallengethespecial master's hearsay ruling inherbriefing  


of  objections  to  the  master's  decision.                                                         Rather  she  argues  that  the  hearing  was  an  


administrative proceeding, in which the rules of evidence do not apply.   But Alaska  


Evidence Rule 101 states that the evidence rules apply in all proceedings in the courts  


unless explicitly provided otherwise. We therefore agree with the master's decision that  


Odom's affidavit was inadmissible.  And we agree with the Director's recount decision  


based on the presumptive validity of Odom's registration.  


                                3.              Robert Beconovich's registration  


                                In November 2016 Alaska voters approved the permanent fund dividend  



automatic voter registration ballot initiative.                                                                The initiative amended AS 15.07.070 so  


that the Division may use a permanent fund dividend (PFD) application to complete a  


voter's  registration.                               If  an  individual  submits  a  PFD  application  using  an  address  


different fromthat of his or her voter registration, the statute requires the Division to mail  

                14              See  Alaska R. Evid. 802-804.                    

                15              See            Initiative                   Petition                  List,             ALASKA                      DIV.             OF           ELECTIONS,  




 17, 2019) (describing the initiative and results under the petition ID "15PFVR").  

                                                                                                    -7-                                                                                            7382

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

the voter a notice that allows the voter to decline to be registered, maintain his or her                                                               


existing voter registration, or register to vote at a different address.                                                                        

                                                                                                                             Failure to respond  


to this notice requires the Division to register the voter using the address provided in the  



PFD application. 

                        Before 2017 Robert Beconovich was registered to vote in House District 1.  


But in his 2017 and 2018 PFD applications, Beconovich provided his work address,  


which was outside District 1.   The Division updated his registration using this new  


address.  So when Beconovich reported to the polling station, he filled out a questioned  


ballot for the District 1 race.  The Director refused to count Beconovich's questioned  


ballot because he was not registered to vote in House District 1 at the time of the  


election.  At the hearing before the special master, Beconovich testified that he had not  


intended to change his voting registration and that he did not recall receiving a notice  


from the Division allowing him to decline this update.  


                        Dodgearguesthat theinitiativeonly requires registration ofPFDapplicants  


who have not been registered before. But language within the initiative clearly expresses  


an intent to make it easier for a voter to update a registration.  The initiative's findings  


note that "PFD applicants who . . . wish . . . to update their voter registration[] must  


submit information to the State a second time, . . . and the State can use PFD-application  


data to ensure voter-registration data are current."  The statute this initiative amended  


also recognizes that PFD application information should be used to update a registration.  


Alaska Statute 15.07.070(k)(1)(B)  requires the Division  to  send  a notice                                                                  to  "each  


applicant not already registered to vote at the address provided" in the PFD application,  


detailing how a voter can "maintain an existing voter registration . . . at a valid place of  


            16          AS 15.07.070(k).   



                        AS 15.07.070(l).  

                                                                            -8-                                                                           7382  

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

residence."   Thus the initiative's requirements apply to both unregistered and currently                                                                                                                                   

registered individuals.                                          

                                      Dodge also                         argues that Beconovich's PFD application                                                                                       could not have                

changed his voting registration.                                                            She points out that even though an applicant verifies                                                  

that   he   or  she   will   be   registered   to   vote   at   the   "residential   address"   provided,   the  

application itself only asks for a "physical address," not a "residential address." She also                                                                                                                                              

relies on the fact that Beconovich did not recall receiving an opt-out notice.                                                                                                                                      In response   

the State relies on the language of AS 15.07.070 which requires the Division to update                                                                                                                                            

a voter's registration based on his or her PFD application.                                                                                                           

                                      In  Willis v. Thomas                                       ,   we affirmed                          the Director's decision                                               not to              count  

questioned ballots from voters whose registrations were purged after notice, pursuant to                                                                                                                                                        

                                                       18   The Division's decision to change Beconovich's registration was  

a statutory scheme.                                                                                                                                                                                                                       

based on a similar statutory scheme.  Both require the Director to send a notice to the  


                                                                                                                                                  19       And in both the Director must  

voter that his or her registration may be changed.                                                                                                                                                                                    


                                                                                                                                                                        20     In light of this precedent  

change the registration if no response is given to the notice.                                                                                                                                                           


and our presumption that agency officials have faithfully performed their duties,21  we  


agree  that  Beconovich's  registration  was  properly  updated  based  on  his  PFD  


                   18                 600  P.2d   1079,   1084  (Alaska   1979).  

                   19                 Compare  AS   15.07.070(k),  with  AS   15.07.130(b).  

                   20                 Compare  AS   15.07.070(l),  with  AS   15.07.130(b).  

                   21                 See   Wright   v.   State,   501   P.2d   1360,   1372   (Alaska   1972)   ("Where   no  

evidence  indicating  otherwise  is  produced,  the  presumption  of  regularity supports  the  

official  acts  of  public  officers,  and  courts  presume  that  they  have  properly  discharged  

their   official   duties."   (quoting   Gallego   v.   United  States,   276  F.2d   914,   917   (9th   Cir.  

 1960)));  see   also Finkelstein   v.   Stout,   774   P.2d   786,   790-92   (Alaska   1989)   (finding  

evidence   sufficient   to   overcome   the   presumption   of   regularity),   abrogated   on   other  

grounds  by  Nageak  v.  Mallott,  426  P.3d  930  (Alaska  2018).  

                                                                                                                       -9-                                                                                                             7382

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

applications.    We therefore affirm the Director's decision not to count Beconovich's                                                                                                                                   


questioned ballot for the House District 1 race.                                                                                                   


                    F.                  LeBon's Additional Challenges  


                                        LeBon raises a number of issues with respect to other ballots.  He argues  


that we should affirm the Director's decision based on these challenges because they  


offset any votes that Dodge's challenges could generate.  But since we agree with the  


Director's decisionsto deny Dodge's challenges,wearenot required to consider whether  


LeBon's challenges would generate any additional votes for him.  

V.                  CONCLUSION  

                                        We AFFIRM the Director's decision certifying the election for the office  


of State Representative District 1.  


                    22                  Dodge contends that Beconovich's vote must be counted because "[a]                                                                                                                                             

voter's franchise will not be withdrawn unless the voter's intent to have it withdrawn is                                                                                                                                                                     

clearly and unambiguously expressed."                                                                                     Fischer v. Stout                                   , 741 P.2d 217, 224 (Alaska                                    

 1987). But here, the Division did not withdraw Beconovich's right to vote; the Division                                                                                                                                                  

simply updated his registration address as required by the PFD initiative. The Division's                                                                                                                                            

decision to change his voter registration was proper.                                                                                                          And since by this change he was                                                 

no longer registered in House District 1, his vote could not be counted in the District 1                                                                                                                                                                       


                                                                                                                            -10-                                                                                                                     7382

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights