Nageak v. Mallott
426 P.3d 930
Alaska2018Background
- 2016 Democratic primary for Alaska House District 40: after a recount Dean Westlake certified winner by 8 votes over incumbent Benjamin Nageak.
- In Shungnak precinct election officials gave every in-person voter both the ADL (combined Alaskan Independence–Democrat–Libertarian) and Republican primary ballots; 51 Shungnak ballots were cast.
- In Kivalina seven voters cast both ballots; election officials treated one as in‑person and one as a questioned ballot; two questioned ADL ballots (one for each candidate) were ultimately counted in the Director’s recount.
- In Buckland 12 special‑needs ballots were returned where election officials also served as the voters’ designated representatives.
- Nageak filed an election contest under AS 15.20.540 alleging election‑official malconduct sufficient to change the outcome; he also appealed the recount under AS 15.20.510. Superior court found malconduct in Shungnak and adjusted vote totals to certify Nageak; the Alaska Supreme Court reversed on Shungnak, affirmed other rulings, and directed certification of Westlake.
Issues
| Issue | Plaintiff's Argument (Nageak) | Defendant's Argument (Division/Westlake) | Held |
|---|---|---|---|
| Whether Shungnak double‑ballot error can be remedied in a recount or must be raised in an election contest; and whether the malconduct was sufficient to change the result | Counts should be excluded or proportionately reduced because Shungnak officials improperly allowed double voting and that malconduct changed the outcome | Errors by election officials go to malconduct/election contest; recount review is limited to whether specific ballots were properly counted; if considered, the superior court’s pro‑rata reduction was legally flawed | Recount statute does not permit discarding votes for election‑official errors that go beyond facial ballot validity; Shungnak issues are election‑contest matters. The superior court erred in using the petitioner’s averaging method; Nageak failed to show malconduct was sufficient to change result; Westlake reinstated as winner. |
| Whether the seven Kivalina questioned ballots (voters who cast two ballots) were properly counted on recount | Kivalina questioned ballots should be excluded because voters cast two ballots in violation of AS 15.25.060(b) | Director counted questioned ballots because intent is unclear; alternatively these are recount issues about ballot validity, not malconduct | Counting the two questioned ADL ballots was error; in-person ballots presumed first choice and must be counted; subtract one vote from each candidate (affirmed as to relief). |
| Whether Buckland special‑needs ballots were invalid because election officials acted as representatives | Such practice violates the special‑needs statute and is improper because representative must be separate, risking integrity | Statute does not prohibit an election official from also serving as the special‑needs representative; practice facilitates voting in rural villages | Election officials may serve as representatives; Buckland conduct did not constitute malconduct and ballots were properly counted (affirmed). |
| Proper standard/method to determine whether malconduct was "sufficient to change the result" and appropriate remedy (proportionate reduction vs. new election) | Use proportional reduction based on precinct‑level historical averages (trial court’s expert) to estimate how many votes to deduct; malconduct "could" (not necessarily "would") change result, warranting relief | Historical averages across dissimilar years are unreliable; must compare qualitatively similar elections; deference to Director and presumption in favor of validity; remedial new election is extreme | Court holds proportional reduction may be used but trial court erred in relying on a simple multi‑year average that mixed dissimilar elections; comparing 2016 to the qualitatively similar 2012 election yields insufficient shifted votes to change result. Court reaffirms high deference to validity of certified results and reluctance to order new election except when challenger meets burden. |
Key Cases Cited
- Willis v. Thomas, 600 P.2d 1079 (Alaska 1979) (distinguishes recount appeals from election contests; allows looking beyond ballot faces in recounts)
- Hammond v. Hickel, 588 P.2d 256 (Alaska 1978) (defines malconduct and adopts proportional reduction approach when contaminated votes are random and cannot be precisely identified)
- Fischer v. Stout, 741 P.2d 217 (Alaska 1987) (applies pro rata reduction analysis and explains recount scope)
- Finkelstein v. Stout, 774 P.2d 786 (Alaska 1989) (earlier recount decision; court here disavows part that treated election‑official errors in recount rather than contest)
- Boucher v. Bomhoff, 495 P.2d 77 (Alaska 1972) (malconduct analysis and when deviations affect voter choice)
- Carr v. Thomas, 586 P.2d 622 (Alaska 1978) (recount principles regarding ballot validity)
- Bush v. Gore, 531 U.S. 98 (U.S. 2000) (cited for principle that debasement or dilution of vote weight can deny suffrage)