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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  

                                                                                                                           

           corrections@akcourts.us.  



                       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- 

                     Appellants.  


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

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

                                                                                  *  [Winfree, Justice,  

                    Carney, Justices, and Fabe, Senior Justice.                                     

                    not participating.]  

                           



                    BOLGER, Chief Justice.  

                                               



I.        INTRODUCTION  



                    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.  

                                                                                               



II.       FACTS AND PROCEEDINGS  

                                 



                    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),   http://www.elections.alaska.gov/  

doc/info/HD1RaceIsTie.pdf.   



          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                                                                                                                



                                                                                                                                                                                                 3  

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), http://www.elections.alaska.gov/results/18GENR/data/results1rc.pdf;       

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

PrevailsBy OneVoteDuringRecount(Nov.30,2018),http://www.elections.alaska.gov/                                                   

doc/info/HD1RecountResults.pdf.  



                4               See AS 15.20.510.  

                                                   



                                                                                                   -3-                                                                                           7382
  


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

                                                          5  

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  



objections.   



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                                                                                              



                                                                                                                                 6  

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

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



                                                                                                                                                           7  

                                                                                                                                                         

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  



                     9  

candidate."                                                                                                                                       

                        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  



                                     10  

                                         

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).   



            10  

                                                                                                                

                         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                                                                



                                                                                                            11  

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,  



                                                                              12  

                                                                                                                                               

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  



                                                                                                                          13  

                                                                                                                                                                      

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                                                                                                  



registration.   



                                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  



                                                    14  

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  



                                                                                                         15  

                                                                                                                                                                                                          

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,  

                                                                       

                                                                                                                                                                                                     

http://www.elections.alaska.gov/Core/initiativepetitionlist.php#15pfvr(lastvisitedJune  

                                                                                                                                                                    

 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                                                               



                                                                                                                        16  

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  



                               17  

          

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).   



            17  

                                

                        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                                                                                                                                   



                                                                                                                                             22  

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                                                                                                                                                                       

election.  



                                                                                                                            -10-                                                                                                                     7382
  

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