*1 Gursey; DANSEREAU; Gregory J. Dana Haywood; Kathy Haywood;
Samuel Wey Jenkins; Ryan; Kim James
C.E. Weymouth;
mouth; T.J. North T. Rita M.D.; Kyzer,
cott; and Jane D. David 1-10, Appellants, Does John Governor, ULMER, Lieutenant
Fran Koivuniemi, Acting Alaska, and David Elec Division of of the Alaska
Director
tions, Appellees.
No. S-6894.
Supreme of Alaska. Court
Sept.
557
Wevley Shea, William Anchorage, Ap- pellants. *4 Adams,
James L. Baldwin and Lauri J. General, Attorneys Assistant and Bruce M. Botehlo, General, Juneau, Attorney Ap- pellees. Gross, Burke, P.C.,
Avrum M. Gross & Juneau, for Slope Amicus Curiae North Bor- ough. MOORE, C.J., RABINOWITZ,
Before and MATTHEWS, COMPTON and EASTAUGH, JJ.
OPINION EASTAUGH, Justice.
I. INTRODUCTION Dana Dansereau and nine other voters (Contestants) challenged validity gubernatorial November election in Tony which Knowles was elected to the office of Governor of superior Alaska.1 The court granted summary judgment to the State of Alaska, thereby dismissing all of Contestants’ part claims. We affirm in and reverse in part.
II. FACTS AND PROCEEDINGS challenged Contestants the election fil- suit in December alleging that mal- conduct corrupt the State acts parties third had occurred and that those acts change were sufficient to the result of 1. The Contestants included as requested by gubernatorial defendants: A recount Candi- Alaska; Coghill, State of John B. "Jack” Campbell former completed date James O. was on De- Governor; Swanson, Joseph 1994; Lieutenant L. cember Tony it determined that the Director of the Alaska Division of by margin Elections Knowles was elected of 536 votes. under (collectively Governor Walter J. Campbell Hickel Candidate is not one of the Contes- "State"). In accordance with Although given Alaska Civil Rule opportunity tants. an to do so. 25(d), the current Lieutenant Governor and the preliminary Contestants never moved for a in- Acting Elections, Director of the junction, Division of Fran and conceded that Candidate Knowles Ulmer respectively, and David capable Koivuniemi governing were the State until there substituted as defendants. could be a new election. political membership re- one’s full in the election. Contestants deelare gubernatorial Thus, it community. is fundamental to our quested conduct a new election State Campbell concept government. democratic More- or declare 0. governor James over, democracy a true must seek to make Alaska. Governor of every meaningful vote as each citizen’s summary judgment moved for Contestants equality people to ensure of all other vote 1994. The cross- mid-December the law. under superior granted the court moved. summary judgment on motion for State’s Alaska is the Statute 15.20.5403 appeal fol- February 8 and This statutory through mechanism which voters Borough appeal Slope the North lowed. On conditions, challenge, prescribed under can an amicus curiae brief. submitted denigrat which results believe argu- advance three main right public their to vote. Because the ed First, they argue Slope that a North ments. stability important has an interest Borough program, voter assistance which of- results, finality of election Dale v. Greater gaso- rural reimburse voters for the fered to Anchorage Borough, Area 439 P.2d transport line themselves to the used (Alaska 1968), “every we held that rea polls, state and federal election laws. violated presumption indulged will be favor sonable Second, they argue postcard that a sent validity Turkington election.” *5 Doyon, (Doyon) Limited shareholders violat- (Alaska Kachemak, City 380 P.2d 595 of laws, it ed and state election because federal 1963). However, challenging party the $1,000 entry prize in a offered cash proves that misconduct occurred and election stub, or to who submitted a ballot those have of the changed that it could the result piece of that similarly paper, sized and stated election, may deter we vitiate the election or (AFN) the Federation of Natives Alaska Boucher mine which candidate was elected. for overwhelmingly Tony endorsed Knowles (Alaska Bomhoff, P.2d n. v. 495 80 82 governor. Finally, Contestants assert 1972). 15.20.540, Under AS Contestants the committed election malconduct showing that the “dual burden” of there Bay voting its sta- operation of the Prudhoe significant a from statuto was both deviation tion.2 direction, of ry and that the deviation was a change result magnitude sufficient to the of III. DISCUSSION at review the the election. Id. 80. We here right summary judgment dismissing the Contes encompasses The to vote the right opinion way to express to one’s and is tants’ lawsuit.4 upon following argue one or the also that the State commit- sition more of Contéstants "disenfranchising" (1) malconduct, fraud, by corruption election malconduct grounds: ted or through voters its treatment of absentee ballots part of an sufficient to on the election official residency disputes in race the state Senate election; (2) change when the result of Anchorage. forty J in All but of the for District person certified as elected or nominated disputed J votes in the race District were counted law; (3) any corrupt qualified required by as governor. evidence that for Contestants offer no change practice defined as law sufficient challenge to the determination substantiates the results of the election. ballots, any forty regarding the do nor alleged regarding evidence that the malconduct reviewing grant summary judgment, 4.When of forty ballots would have been sufficient these any genuine determine issue of we must whether gubernatorial change of elec- the outcome moving par- exists and whether the material fact tion. judgment ty a matter of is entitled to law. only gubernatorial is the Because State, (Alaska 1992). Wright 824 P.2d Contestants, challenged by we need race summary granting superior court’s If the order alleged which did not consider malconduct reasoning, judgment does not set out the court’s gubernatorial election. affect presume superior ruled we court provides: 3. AS 15.20.540 Saddler v. favor of the movant on all issues. Lines, Inc., candi- election contest. A defeated Grounds P.2d Marine Alaska qualified voters contest 1993). date or (Alaska any person or electioh or the nomination of propo- approval rejection any question or argue gasoline the three events voters had not used that much
Contestants corruption polls. constitute malconduet or under allege reach the Contestants further change 15.20.540 the results Borough sufficient transporta- instituted the gubernatorial election. tion program assistance with the intent helping Candidate Knowles win the election. Borough’s Slope A. North Gasoline Re- Transportation imbursement Assis- transportation pro- 1. The assistance Program tance gram illegal is not under Alaska law election, During Slope the 1994 the North allege Borough’s Borough (Borough) transporta- conducted a transportation program assistance violates program allegedly designed tion assistance “corrupt AS 15.56.030 and is therefore a unique voting par- overcome the obstacles to practice as defined law sufficient ticipation posed by Borough’s vast and change the results the election” under AS largely geography. Borough roadless 15.20.540(3).5 Contestants characterize the day informed residents before election that it Borough’s program “gas pro as a for votes” up would reimburse each voter for to ten gram persons that thousands of gallons gasoline used the voter to reach paid up gallons were the value of to ten polls. voting, After a resident could take gasoline to vote.6 up by his or her ballot stub to tables set 15.56.030(a)(2) Although prohibits Borough near the election booths and fill out person paying from person another to vote a “voter assistance voucher.” On the vouch- candidate, particular for a proposition, or er the voter would or affirm” “swear question, prohibits no per- Alaska Statute gasoline transport amount of used to compensating son from another polls. voter to the The voter could then voting per Thus, se. See AS 15.56.030. as- specified redeem the voucher for the amount *6 suming Borough’s program paid voters gasoline July at a local fuel station before election, with regardless fuel to vote in the voters, Borough 1995. The allowed all the amount of fuel the voters used to reach regardless of how far had to travelled polls, program corrupt would not be a polls, participate program. to in this practice law, as defined Alaska unless the argue program Contestants that this vio- payment offers of were made with the intent lated federal and state criminal election laws. person “to induce the to vote for or refrain allege Borough imper- Contestants that the voting from for a candidate at an election.” missibly expanded transportation assis- AS beyond program tance the limited use con- doned advance law, the United States De- In stark contrast to federal election partment of Justice Election Crimes Branch Alaska prohibit election law does not paying and that witnessing signa- volunteers voters’ voters. respect See discussion In this infra. gasoline nearly tures on vouchers allowed all statutory Alaska’s scheme is similar to the gallons, voters claim though to ten even most election example, laws of other states. For provides pertinent 5. part: AS 15.56.030 allege program Contestants also that the violates (a) 15.56.020, person pertains campaign A commits the crime of which to unlawful mis- voting degree However, interference with degree. first conduct in the second Contes- person alleged tants support have not facts which would this claim. Nor have briefed this issue (2) offers, gives, promises give, to or causes superior either before the court or this court. given money to be or offered or other valuable argument is thus waived. Wirum & Cash thing person to a with the intent to induce the Cash, (Alaska Architects v. 837 P.2d 713-14 person voting to vote for or refrain from for a 1992). candidate at an election or for an election proposition question or ... price 6. The record establishes that the market gallons gasoline approxi- ten in Barrow was (b) corrupt prac- Violation of this section is a mately twenty-seven dollars on November tice. (c) degree Unlawful interference in the first is felony. a class C person-with it is not unlawful to the intent to induce an individual California law under consideration, including register any form of to or vote. Or.Rev.Stat. vote, 260.665(1) (2)(a) (1993). However, person provided § payment, to a & cash Ore- payment to or gon specifically is not inducement transporta- excludes “[f]ree for, voting refraining or from for polls persons reward voting” tion to and from the for person voting, particular for a or measure.7 prohibition. from this Or.Rev.Stat. language previous 260.665(4)(f) (1993). deleted California § version of the statute vote,
dealing voting, agreeing with com- Although language of AS polls, agreeing 15.56.030(a)(2) or to come to unequivocal is not as as the could, language] ... con- polls since [this law, language of California’s which states ceivably, punish for be used someone may compensation not offer one ex having doing a voter for what is rewarded change “voting any particular per for for coming duty namely [or her] his civic (West son,” 1995), § Cal.Elec.Code it — polls voting. bicentennial Various appears plain reading clear from attempts produce large turnouts this 15.56.030(a)(2) prohibition against year well in violation of these be inducing person to “vote for or refrain from prohibited needs to be subsections. What voting for candidate” under AS rewarding voting par- in a 15.56.030(a)(2) meaning. has an identical manner, something ticular [the statute] Thus, transporta Borough’s to show that the continues do. program tion assistance violated AS Legislative Committee Comment 1976 Addi- 15.56.030(a)(2), Contestants must demon (now tion, § former Cal.Elec.Code Borough paid voters did strate 18521). § so with an intent to induce voters to vote for voting particular or refrain from for a candi Similarly, Washington State election law date. any person “directly prohibits from or indi- bribe, reward,
rectly offering]
any thing
or
exchange
of value to a voter in
for the voter’s
Payment
a.
against any person
vote for or
or ballot mea-
analo-
that this case is
sure,
authorizing]
any person
to do
Garcia,
gous to United States v.
exchange
at
Parsley
Cassady,
vote.8 Id.
101-02. The
their
See also
(1945)
Borough argue
Ky.
Garcia and
300
189 S.W.2d
948
State
(upholding
inapposite. They argue
candidates’ contribution
similar cases9 are
of cars
transportation
and trucks to assist in voter
programs
primary goal
with the
of as-
sisting
reaching
polls
long
in
as reasonable due to bad roads and
voters
wartime
Holbrook,
exigencies);
Ky.
upheld against challenges that
as-
Watkins v.
311
been
such
(1949)
payment
(uphold-
223 S.W.2d
903-04
sistance constitutes a
to vote.
money
provide
disbursement of
to
Lewin,
States v.
467 F.2d
United
vote”).
transport
polls
“get
to
to
out the
(7th Cir.1972),
pro-
1136
the court classified
viding transportation
polls
as “assis-
Perhaps
importantly,
more
this distinction
by
groups
prospective
tance rendered
civic
to
difficulty
balancing
in
reflects the
the need to
voters,”
payment,
rather than
and held that
pecuniary
minimize undue
influence in elec-
1973i(c)
§
proscribe
does not
“efforts
civic
encourage
tions with the desire to
and facili-
groups
employers
encourage people
or
political participation.
tate maximum
The
register.”
Department
The United States
Borough argue
transpor-
appears
agree
analysis.
Justice
with this
program
balancing
tation
is a valid
of these
concept
“payment”
[T]he
does not reach
factors,
two
while Contestants
things
polls
such as rides
or time off program is an invalid form of vote solicita-
given
from work which are
to make it
tion.
easier for those who have decided to vote
Slope
89,-
Borough comprises
The North
to cast
their ballots. Such “facilitation
square
5,760
000
miles and is inhabited
payments”
distinguished
are to be
from
people.
majority
people
The
of these
are
gifts
personally
prospective
made
voters
regularly
involved
subsistence activities.
specific purpose
stimulating
for the
Borough’s
system
The
limited road
makes it
influencing the more fundamental decision
difficult for
residents
remote areas to
participate
in an election.
cases,
reach
facilities. In some
snow-
Donsanto,
Craig C.
Federal Prosecution of
only
mobile or all-terrain vehicles are the
1988).
(5th
Election
18
ed.
Offenses
transportation.
available modes of
Fuel is
pro-
The distinction between “facilitative”
especially expensive in
Borough,
and be-
grams
“gift” programs
seems based
many
participate fully
cause
residents do not
part
preceded
on historical factors which
economy,
expenditure may
the cash
a fuel
passage
voting rights legislation.
of most
costly.
be still more
Missouri,
Day-Brite Lighting
See
v. State of
421, 424-25,
405, 407-08,
Borough argues
many
U.S.
S.Ct.
individuals
(1952) (upholding
requir-
L.Ed. 469
state law
who would like to vote will be deterred
ing employer
employees
to allow
four hours
the limited access to roads and the cost of
paid
day
Thus,
leave on election
transportation
Borough.
order to
vote);
Cong.Rec.S.
(daily
April
transportation
program
ed.
assistance
would
*8
1965) (Section 1973i(e)
prohibit
clearly
not
voting
does
facilitate
in
Borough.
the
“practice
However,
recognized
the
that has been
Borough argues,
and
the
the sorts of
accepted by
political parties
transportation
has been
both
programs already permitted
organizations
states,
all
respect
helping
many
and
with
to
in
other
in which volunteers
transport people
stations,
to
car-pool
who do not have means
voting
or bus voters to
transportation
of
polls
to the
in order to cast
Borough
would not be feasible in the
because
1973i(c)
defendant);
provides
pertinent part:
§
exchange
voting
8. 42 U.S.C.
in
vouchers in
for
for
Thompson,
knowingly
willfully
pays
United States v.
Whoever
or
...
615 F.2d
330-31
or
(5th
denied,
States,
Cir.1980),
pay
accepts payment
offers to
registration
or
either for
cert.
Solis v. United
to vote or for
shall be fined
473 U.S.
105 S.Ct.
paid
preting
language
voters to vote. See
v. Bottch-
the statute because the
has
(Alaska 1976) (in
er,
172,
545 P.2d
175 n. 5
acquired
peculiar
a
meaning through
ruling
summary judgment
on a motion for
statutory
previous judicial
definition or
con
the court must draw all reasonable infer-
Anchorage Equal
struction. Foreman v.
nonmoving party).
in
ences
favor
Comm’n,
(Alaska
1199,
Rights
779 P.2d
1201
1989);
Municipality Anchorage,
Wilson v.
'person
b.
Intent
to induce a
(Alaska 1983).
569,
669 P.2d
572
Alaska
a
to vote
candidate
for
15.56.030(a)(2) prohibits offering
Statute
above,
Borough’s program thing
person
As noted
of value to a
“with the intent to
did not violate Alaska’s election laws unless
person
induce the
to vote for” a candidate.
payment
to vote was made with the
legal
The most common
definition of “induce”
person
intent
to induce a
to vote
or
on,
influence,
for
on,
prevail
is “to lead
to
to
to
refrain from
for a candidate. AS
influence,
by persuasion
move
bring
or
to
about,
effect,
or
to
to cause.” See Common
program illegal
Borough
is
because the
of-
Mason,
309,
174,
wealth v.
Pa.
112
381
A.2d
something
exchange
fered
of value in
(1955)
on;
(defining
176
“induce” as “to lead
getting
expectation
out the vote with the
influence;
on;
prevail
to
to
to move on
increase
voter turnout meant an in-
persuasion
...;
bring
or influence
on or
crease
votes for the Democratic candidate
about;
effect;
cause.”);
People v.
Tony
governor,
Knowles. Contestants Drake,
28,
997,
Cal.App.2d
151
310 P.2d
1003
offered an affidavit in which Thomas North-
(1957)
definition);
(using same
Page
La
v.
cott affied that several months after the elec-
States,
(8th
536,
United
146 F.2d
538 n. 2
tion, Borough
executive boasted about the Cir.1945) (using
Drake);
same definition as
area,
high voter turnout
and stated
Cook,
987,
State v.
139Ariz.
678 P.2d
gas
that the incentive behind the
for votes
(1984) (the generally accepted meaning of
program
get Tony
was to
Knowles elected.
is,
on;
“induce”
“to
persua
lead
to move
influence”);
sion or
Dictionary
Black’s Law
reviewing
summary judgments
(6th
1990) (“To
about,
bring
ed.
on or
Contestants,
against
entered
the court
affect, cause, to influence to an act or course
must draw all reasonable
inferences
favor
conduct,
by persuasion
reasoning,
lead
or
parties
of the Contestants. The
do not dis
by motives,
on”);
prevail
incite
Webster’s
15.56.030(a)(2)
pute that
prohibits giving
(1974) (“to
Collegiate Dictionary
New
money or
thing
other valuable
with an inten
by persuasion
influence;”
lead on: move
persuade
person
tion to
to vote for a candi
bring
“to call forth or
about
influence or
(Because offering
give money
date.
or an
stimulation”). These definitions connote an
thing
other valuable
can also violate AS
person’s previous
alteration of a
inclination.
15.56.030(a)(2),
distinguish
we need not
be
Borough’s
tween the
delivery
and its
The terms
ap
“induce” and “inducement”
voters.)
valuable vouchers to
The averments
pear to have been
frequently
used most
in Northcott’s
support
affidavit would
a find
law, especially
entrapment
criminal
cases.
Borough, acting
through
its offi
usage clearly
This
indicates that inducement
cials,
program
intended the
to increase the
requires altering
person’s disposition
to act
number of votes cast for Candidate Knowles.
See,
way.
Hansen,
in a
e.g.,
certain
State v.
Consequently,
question
we must answer
Wash.App.
850 P.2d
579 n. 9
15.56.030(a)(2)
is whether
prohibits
a can
(1993),
grounds,
reversed on other
State v.
program
didate-neutral
gives
which
or offers
(1994)
Stegall, 124 Wash.2d
We of AS 948 F.2d ordinary meaning 15.56.030 its government when inter- ment behavior that would
565 person may employ programs, such as unpredisposed to commit other absen- ‘cause[ an] omitted). crime.’”) (citation assistance, hoping to par- tee ballot maximize likely ticipation thought of more voters to Oregon Republican Party v. State Oregon Republi- favor those candidates. See 717 Oregon, Or.App. P.2d of Party, (discussing can P.2d at 1208 Re- moot, dismissal as remanded for publican Party mailing of absentee ballots (1986), P.2d 1237 court held Or. postage pre-paid envelope). with providing postage-paid envelopes which voting, person must choose When one recipients requests use to return for could Thus, phrase if candidate over others. Republican Party’s to the absentee ballots “intent to to vote for or refrain induce from headquarters, constitute did not an induce 260.665(2)(a). voting for a 15.56.030is candidate” AS ment vote under O.R.S. to require persuade read to intent to an voters inducing a prohibits person That statute to they to choose for whom candidates would register to vote. The court reasoned that voted, that not otherwise have statute would implies promise of “[i]ndueement because prohibiting payments to be have construed as advantage performing as a result of voting per previously, for act,” se. As discussed advantage desired offered must reading such a the statute would conflict to the independent have an value voter. Id. plain language. with its independent exchange value Without an act, thing for the performance many policy arguments There are registering, offered induce the act of did not against for and the “commercialization” of registration. Ap but rather facilitated Id. See, Lighting, e.g., Day-Brite votes. plying Oregon court’s in definition of (Jackson, J., at at 409 U.S. 72 S.Ct. ease, prevail ducement to this here Con dissenting) (disagreeing upholding with state something of inde testants must show give require employers statutes which em pendent gasoline—was to en offered value — ployees paid two hours leave order to vote courage to east their for a voters ballots “state-imposed pay-for- disapproving they would not otherwise have se candidate Karlan, voting system[s]”); by Pamela S. Not something lected. It is insufficient Money by but Vote Virtue Won? Traffick exchange inducing value was offered System, Voting Rights and the 80 Va. se, voting per under Alaska law it is because (1994) (discussing dangers to L.Rev. 1455 legal voting per compensate polity, especially economically disadvan se. subsets, vote-buying taged schemes and influenced, improperly will Unless voters contrasting with these schemes incen cast ballots in accordance with their their arguments programs). policy tive These own No voters are influenced criteria. doubt already resolved Alaska. The been legitimate such criteria as their own socio- practice statutes enacted community economic status values. Legislature proscribe Alaska do not voter Thus, may any given community residents compensa programs incentive which involve particular naturally to favor a candidate. tend sponsor voting, tion for even if the of a Persons whose votes are facilitated candi- program expects pro intends and transportation pro- date-neutral assistance candidate; gram particular will benefit grams likely vote for the candi- will same only prohibit they payments intended to in they favored dates would have had i.e., duce, persuade, persons influence or polls without Poten- reached the assistance. vote in a manner than would different transporta- tial could from voters who benefit It is not for the courts to have otherwise. tion share beliefs or values assistance legislative second-guess permissible this particular which favor a candidate. tend to choice. surprising It is that some candidates organizations transportation Applying that choice rec employ assis- us, which programs target persons partic- tance ord before we find no evidence of a registra- permit inference that the party ular socio-economic status or would a reasonable tion, Borough’s just persons responsible organizations candidates or for the trans- as other *11 program
portation practice” by assistance intended to in- as “defined law.” AS 15.20.540(3). particular in a duce voters to vote manner. argues The the Alas- significantly, Most there was no evidence the Legislature expressly specific ka has defined program as conducted was not candidate- “corrupt practices,” acts as it because includ- persons responsible neutral. Evidence that phrase ed the “violation of this section is a program, by encouraging eligible for the' citi- corrupt practice” particular election stat- vote, program zens to intended that See, 15.56.010(b); e.g., utes. AS AS gain would result in a net of votes for Candi- 15.56.030(b); 15.56.035(b). AS The State prove date Knowles would be insufficient to given legislature’s reasons that careful written, violation of AS As classification, clearly attention to this it did prohibit payment the statute does not designate not the violation of federal criminal persons induce to vote who would not other- corrupt practice. election law as a vote, they long wise so as are induced to respond Contestants do not to these asser- in particular program vote manner. If a It legis- tions. would be inconsistent for the fact, presume candidate-neutral we must prohibit lature not to pay- candidate-neutral voters, booth, sanctity encourage voting, ments made to supra, see they will vote as would have had made 15.56.030(a)(2),yet regard discussion of AS ways polls their without assistance or payments “corrupt such practice” as suffi- inducement.11 election, cient to set aside an whether or not they violated unlikely federal law. It is also alleged 2. The violation elec- of federal legislature would have considered acts tion law grounds is not contest violating law, federal election but not Alas- under AS 15.20.5 n statutes, ka’s “corrupt prac- election to be challenge Contestants assert that can law,” by given tices as defined that the feder- the election under AS 15.20.540because the al election phrase. statutes do not use that Borough’s program violated federal law. phrase The absence of that or some close Although a program candidate-neutral equivalent in the federal election statutes compensation which encourage offers vot- tends to confirm Legislature that the Alaska law, per se does not violate Alaska it 15.20.540(3) did not intend that AS appears to violate federal election law. See contests could be based on acts that violated 1973i(c), § supra U.S.C. note That federal, Alaska, but not election statutes. mean, necessarily however, does that a given ground federal violation is for an Alas- alleged We hold that an violation kan election contest. of a federal by party election statute a third Borough argue
The State and the
independent
is not an
ground for an election
15.20.540(3).
Alaska and federal election statutes do not
contest under AS
A violation of
1973i(c)
make the violation
§
federal criminal
by
elec-
U.S.C.
other than
tion statute a basis for invalidating an elec-
ground
election official can be
for an
15.20.540(3)
tion. The State notes that election contests
election contest under
only
parties
based on the acts of third
must show
“corrupt practice”
the violation is also a
party
the third
“corrupt
committed a
defined
Alaska election law.12
programs
11. The record reflects three other
is no indication in the record that
of those
potentially
per-
offered
programs
valuable consideration to
was not candidate-neutral.
private
sons who voted in the 1994 election. A
12. Contestants also
that there was election
agent
gave
travel
$40
Fairbanks
air fare dis-
“malconduct"
State election officials under
presenting
counts to 120-25 customers
a 1994
15.20.540(1)
Borough's
program
because the
ballot stub on November 8 or
1994. The
Anchorage
approved
violated federal law and State
Chamber of Commerce
officials
offered a
record,
program. Having
prizes, including
for various
reviewed the
we
two round
tickets,
trip
persuaded
persons
genuine
submitting
are
that there
their
is no
fact dis-
ballot
stubs;
4,415
approximately
pute,
people
and that no State election
entered that
official condoned
drawing.
Municipality
approved
Anchorage People
program
actually
as it was
con-
system accepted
Borough.
Mover bus
an unknown number
ducted
The trial court did not
day
entering
summary judgment against
riders' ballot stubs the
after the election in
err in
Con-
exchange
trips
any length,
day.
all
There
testants on this claim.
Doyon
“corrupt practice”
*12
Mailed to
Sharehold-
not be considered a
under
B. Postcard
AS 15.20.540.
ers
postcard
Because the
was distributed
Conference, Doyon,
The Tanana Chiefs
officials,
persons other than election
Contes-
Native Associa-
Limited and the Fairbanks
tants must demonstrate that its distribution
(TCC/Doyon/FNA)
postcard to
mailed a
tion
“corrupt practice,”
simply
was a
“malcon-
Doyon shareholders before the election. One
15.20.540(1)
(3).
duct.”
&
AS
persons who
postcard
of the
offered to
side
stub,
entry
submitted an
on the 1994 ballot
significance
firstWe
consider the
of
similarly-sized
opportu-
piece
paper,
or
an
required by
the omission of
information
the
drawing
thou-
nity
participate
in a
for one
has
AS 15.56.010. This court
held that the
Participants
dollars in cash.
had
sand
term “malconduct” as used AS 15.20.540
entries to their tribal counsel office
submit
“significant
from
means
deviation
statutori
day
noon the
after the election. Neither
ly
constitutionally prescribed
or
norms.”
TCC,
Doyon, nor FNA endorsed
candi-
(Alas
Hickel,
Hammond v.
588 P.2d
258
governor
general
date for
the November 8
1978) (citing
Bomhoff,
ka
Boucher v.
495 P.2d
However, the other side of the
election.
(Alaska 1972)). Although
Hammond
encouraged
postcard
Native Alaskans to Hickel involved claims of official malconduct
very impor-
that “it is
vote. This side stated
third-party corruption, given
rather than
our
” to
and that “one vote does make a
tant
vote
prior holding that election statutes will be
people
encourage
It
difference.”
asked
liberally
uphold
construed to
the will of the
their friends and relatives to vote
Thomas,
electorate,
Carr v.
586 P.2d
following
general election. The
statement
(Alaska 1978),
apply
n. 11
Ham
we choose
postcard:
was centered on this side of the
requirement
significant
mond’s
devia
year’s
“At this
Alaska Federation of Natives
statutory
grounds
to all
for
tion from
norms
convention,
delegates
Native
from across
an election contest under AS 15.20.540.
overwhelmingly
Tony
Alaska
endorsed
case, assuming
language
In this
governor.”
argue
Knowles for
Contestants
postcard
was “intended to influence
postcard
and the
it adver-
candidate,”
significant
the election of a
no
violated Alaska election law.
tised
statutory
deviation
occurred.
AS
presumably
The statute
re
language required by
1. Absence
stat-
quires
postcard
that
bear the words
ute
“paid
by”
sponsor’s
for
and the
name and
However,
postcard
postcard
that
vio-
return address.14
source,
Alaska
law because it did not
identified its
and also identified
lates
(AFN)
“paid
by,”
required by
for
Alaska Federation of Natives
as a
bear the words
Thus,
argues
supporter
that
of Candidate Knowles.
AS 15.56.010.13 The State
apparent purpose
pro
postcard
purpose
satisfies
of AS
of AS 15.56.010—to
electorate and to allow
15.56.010and that its distribution should thus mote
informed
15.56.010(a)(2)
any particular
provides
encourage voting
candi-
for
"[a]
13. campaign
apply
commits the crime of
misconduct
date and because AS 15.56.010 does not
degree
person”:
mailings
coiporations
the first
It
from
to their investors.
unnecessary
argu-
us to address those two
publishes
knowingly prints
ment,
an advertise-
or
distributing
post-
billboard,
handbill,
ments because we hold
placard, poster,
card in violation of AS 15.56.010 was not
paid-for
or
television or radio announcement
"corrupt practice” under AS 15.20.540.
other communication intended to influence the
or
of a ballot
election of
candidate
outcome
issue,
Given our resolution of this
we do not
proposition
question
without
the words
whether,
light
necessary to consider
find it
"paid
by"
by the name and ad-
followed
—
Commission,
McIntyre
U.S.
v. Ohio Elections
candidate, group or individual
dress of the
-,
(1995)
L.Ed.2d 426
115 S.Ct.
advertising
paying for the
or communica-
prohibiting
(holding
distri
that an Ohio statute
...
tion.
campaign
anonymous
violat
literature
bution
Amendment),
valid.
the First
AS 15.56.010 is
argues
ed
14. The State
that AS 15.56.010 does not
party argues
apply
postcard
postcard
that it is not.
because the
does
No
theory
postcards
voters to evaluate the solicitations
re
on the
offered
substantially met.
Messerli v.
ceive — was
something of value and were distributed with
Cf.
(Alaska 1980) (“Identi
State,
626 P.2d
way
an intent
to influence the
voters cast
advertising may
fication of the source of
be
ballots, in
their
violation of AS 15.56.030.15
disclosure,
required as a means of
so that the
response
the State asserts
the draw-
arguments
people mil be able to evaluate the
ing cannot have violated
15.56.030
be-
subjected.”)
being
(quoting
to which
are
only
participation
cause not
in the draw-
Bellotti,
First National Bank v.
435 U.S.
*13
contingent
not
on a vote for Candidate
n.
1424 n.
98 S.Ct.
Knowles,
drawing participants
but
were not
(1978)).
L.Ed.2d 707
required to vote at all. The State reasons
postcard
Since distribution of the
did
necessary
that because it was not
to vote to
purposes
significantly
not
frustrate the
of AS
drawing, entry
drawing
enter
in
the
the
can-
15.56.010, it cannot
said that the deviation
be
payment
exchange
be construed as a
practice
“corrupt
from that statute was a
...
participant’s
for the
The
court
vote.
trial
change
sufficient to
the results of the elec
distributing
postcard
held that
“did not
purposes
tion” for the
of AS 15.20.540. Even
corrupt practice,”
granted
constitute a
and
assuming
sup
the deviation was sufficient to
partial summary judgment
to the State on
port
charge
violating
a misdemeanor
AS
that issue.
15.56.010,we hold that a technical failure to
tions when
the result of an
lished
586 P.2d
of the statute has been satisfied. See
comply
cient to invalidate ballots where the
policy
strictly
at
technical errors
which favors
625-26
with that statute is not suffi
election,”
(citing
upholding
... do not
the “well-estab
recognizing
purpose
of elec
affect
Carr,
for a
offers ...
[3] to a
15.56.030(a)(2)
Insofar
person
candidate_”
person
[2]
to
vote
money
is violated when a
[4]
is
with the intent to
or other valuable
pertinent
or refrain from
person
here,
induce
thing
“[1]
AS
permit
that courts are reluctant to
a whole
By prominently mentioning the
qualified
sale disfranchisement of
voters
Knowles,
AFN’s endorsement of Candidate
where a
construction of
reasonable
the stat
postcard potentially encouraged recipi
result). Consequently
ute can avoid such a
particular
ents to vote for a
candidate. This
postcard
the failure to indicate on the
who
facially
message
paid
non-neutral
of an
ground
for it is not
for an
evidence
15.20.540(3)
contest under
persons
AS
this case.
intent to induce
to vote for a
they might not
otherwise
favored. This
Legality
postcard mailing
message distinguishes
non-neutral
it from
Slope Borough’s
transportation
North
as
We must next consider whether
mailing
postcards
corrupt practice
program.
drawing
sistance
The
offer conse-
dissenting opinion suggests
posing
15. summary
that we
the State's cross-motion for
issue,
theory
should refuse to reach this
on the
judgment,
argued
postcard
Contestants
squarely argued
Contestants have not
in their
encourage people
demonstrated an intent to
mailing
postcard
brief that the
was a
particular
vote for a
candidate. These are the
15.56.030(a)(2).
corrupt practice under AS
determining
two issues critical to
whether dis-
This court has discretion to reach an issue
tributing
postcard
corrupt practice
was a
inarticulately
par-
which has been
briefed
one
15.56.030(a)(2).
pre-
violation of AS
The State
we,
court,
ty, especially where
the trial
and the
.030(a)(2)
position
§
sented its
on
in its brief and
opposing party
adequately
have all been
notified
superior
memoranda before this court and the
appeal.
that the matter is at issue on
Ratcliff
court.
Bank,
Security Nat'l
670 P.2d
1141 n. 4
relatively oblique
While such a
discussion of an
(Alaska 1983).
sufficient,
might
always
issue
be
under the
complaint
points
Contestants'
and statement of
facts of this case we find that Contestants ade-
appeal
question
Doy-
on
raise the
of whether the
quately
question
mailing
raised the
of whether
postcard
violated AS 15.56.030. Contestants
postcards
violated AS
We
.030;
repeatedly
quote
§
invoke
twice
issue,
failing
would be remiss in
.030(a)(2)
reach this
§
opening appellate
in their
brief.
not,
especially considering
persons
that if we do
squarely argued
Contestants
that in the context
1973i(c)
may needlessly
jeopardize
postcard
§
of 42 U.S.C.
something
violate the statute and
offered
op-
of value.
In their memorandum
future elections.
offering
thing
change
the results of the election.” See
comes closer
quently
Boucher,
15.20.540(3);
dollars,
were cast
Candidate Knowles or
oth-
age turnout
higher
there
1994 was
than
postcard
er candidate as a result of the
mail-
average,
phenomenon
the 1994 statewide
a
ing.
may
that
undercut the State’s assertion that
produce any
The Contestants’ failure to
postcard
did not influence the
turnout
evidence, however,
necessarily
such
is not
that district. The State’s own evidence did
issue,
determinative of this
because we must
require
postcard
a conclusion did
summary judgment
here decide whether
not influence the election outcome.
granted
should have been
to the State over
Moreover,
arguments
showing
the Contestants’
that there were
the State’s
was not un-
genuine
disputes
fact
about the effect of the
rebutted. Contestants offered an affidavit
postcard
on the election.
executed
identified on Contes-
expert
tants’ witness list as an
in Alaska
principles
accordance with the
elections. He affied that
the 1994 voter
Alaska,
governing summary judgment
now
compared
turnout should be
to the turnout in
State,
seeking
as the cross-movant
sum
non-presidential
since both were
elec-
mary judgment, had
initial
burden of
years.
opinion
tion
That
was sufficient to
making
prima
showing
post
facie
comparison
cast into doubt
direct
of vot-
mailing
card
did not affect the election. See
participation
er
in 1992 and 1994.
Co.,
v. American Honda Motor
803
Yurioff
(Alaska
1990);
issues,
P.2d
genuine
389
Bauman v.
In a statement of
Contes-
State,
Svcs.,
Family
Div.
mailing
postcards
and Youth
768 tants
asserted
(Alaska 1989) (“[T]he
propo
“corrupt practice”
P.2d
1099
“corrupt prac-
and that
TCC,
summary judgment
FNA,
nent of a
Doyon “injected
motion has the
tices” of
and
establishing
initial burden of
the absence of
extensive bias into the results of the 1994
genuine issues of
governors
They
material fact and his or her
election.”
[sic]
asserted
longer justified
sending
corrupt which no
the cost
sufficient
drawing introduced
cash
Bay
renting
to Prudhoe
and
through extensive
election workers
into the election
practices
probably
operate
voting
would
station.
space
that “it could
the absentee
bias
if eliminat-
change
requested preclearance
the result of the election
from the
The State
corrupt
They also asserted
Department
ed.”
Civil
United States
Justice
bias into
“have introduced extensive
practices
Rights Division
it closed the absentee
before
that re-
governors [sic] election
the 1994
voting
Department
station. The
of Justice
governor of
election for the
quires
new
objections
replied that it had no
to the clo-
Alaska.”
sure. The State notified the oil extraction
employers in
station
the area
would
“every
reasonable
We have stated
employers
be closed and trained these
indulged in favor of the
presumption will be
distributing
registering
voters in
assist
City
Turkington v.
validity of an election.”
applications.
absentee ballot
(Alaska
Kachemak,
P.2d
1963).
Hammond,
C. Prudhoe
properly exercised this dis-
that the Director
deciding to
the Prudhoe
both in
close
cretion
August
1994 to close
The
decided
State
directing
station’s
station,
and in
Bay station
Bay
voting
the Prudhoe
absentee
day.
operation on election
population
in transient
citing a decrease
day.
any
have never held that an “unrea
the wait on election
Nor is there
We
station,
voting
at an absentee
sonable” wait
evidence that the election workers were inad-
itself,
can
election malcon- equately
be considered
perform
trained or unable to
their
any
cite
cases to
duct. Nor do Contestants
contrary,
employ-
duties. To the
one of the
Moreover, it
support
proposition.
this
does
requested
ers which had
that
the absentee
wait at
the absentee
appear
voting
opened
Divi-
station be
wrote to the
training
voting
resulted from a lack of
station
commending
sion of Elections
the election
Director of Elec
or from the fact that the
noted
workers. The letter
the hard work of
reopen
voting
decision to
the absentee
tions’
staff,
the Division
and thanked the Division
minute,”
at the “last
station was made
setting up
voting
station on such
it
“unreasonable.”
that was otherwise
employer
short notice. The
stated that “ev-
eryone
spoke
happy they
I
with was
were
required
The Director of Elections was not
able to vote.”
voting
reopen
the absentee
station at Pru-
15.20.045(b).18
Bay.
As noted
dhoe
voting
the context of an absentee
sta-
above, the
had decided to close the
State
by
presented
tion and under the facts
both
Bay voting station before the Au-
Prudhoe
parties,
good-faith operation
of the Pru-
Bay
gust primary and had trained Prudhoe
Bay
dhoe
station
not malconduct
even
registering
employers to assist voters
though
long
voters had a
wait. See Ham-
distributing
applications.
absentee ballot
Hickel,
(“evidence
mond v.
Furthermore, regarding postcard tants’ claim although sent to the decision to Doyon open only day the station made shareholders. This issue is remanded election, allege proceedings before the for further Contestants do not not inconsistent with opinion. portion that an earlier decision would have alleviated this AFFIRM that We of 15.20.045(b) provides: supply 18. AS ed the director. The director shall voting absentee with ballots all may designate by regulation stations The director adopted desig- under the the state and Administrative Procedure districts in shall (AS 44.62) Act voting locations at which absentee at nate absentee officials to serve absen- voting operated day stations will be on election tee stations. designat- and on other dates and at times to be only part larger summary judgment dismissing all other never do—it does so as of its argument postcard mailing did not claims asserted Contestants. “corrupt practice” provision violate the of AS COMPTON, Justice, dissenting part. 15.20.540(3). Furthermore, the focus of the proponent waiver rule is on whether the of a III.B.2 of the court’s I dissent from section point adequately has raised briefed it. opinion. In that section the court reverses 15.56.030(a)(2) summary The reference to grant judgment State’s AS the trial court’s responsi- did not relieve in the favor on the issue of whether their State’s bility TCC/Doyon/AEN postcard mailing violat- under waiver rule to raise and brief 15.56.030(a)(2), though purported provision ed AS even Contes- violation of that argued appeal. on I tants never this issue wished the court to consider it. hold that the issue of whether the would justification The other the court offers for 15.56.030(a)(2) postcard mailing violated AS 15.56.030(a)(2) addressing the AS issue is considered, should not be because Contes- that, by so, doing may prevent persons it it. tants failed raise “needlessly violating] from the statute and brief, generally In their Contestants assert jeopardizing] Op. future elections.” at n. 15. mailing postcard] itself “[t]he [of Yet, on the “two issues critical to determin- constitutes federal criminal violations under distributing postcard whether was a section 42 U.S.C. section [and] U.S.C. (1) id., corrupt practice,” the court declines 1973i(c). Additionally, corrupt practice it is a cash-prize drawing to decide whether a is 15.20.540, 15.56.010, as defined in A.S. A.S. (2) always thing;” aof “valuable and A.S. 15.56.030.” Contestants then assert remands the case for determination of 15.56.010, specifically a violation of AS which whether AFN intended influence voters any requires “paid by” the words particular Op. vote for a candidate. at 569- communication to influence an elec- intended 70 and n. 16. The court announces no new this, Following tion. Contestants focus en- law, principle nor does it resolve 1973i(c), § tirely on 42 U.S.C. the so-called key arising legal issues under AS They prohibition. federal “cash for vote” 15.56.030(a)(2); simply trial it holds that the cite federal cases and Federal Prosecution granting summary judgment court erred in (5th 1988), ana- Election ed. which 15.56.030(a)(2) on the State’s favor AS Offenses 1973i(e). lyzes section issue. court therefore does not accom- future, plish what it sets out to do: In the Contestants never assert the cash party contemplating cash-prize drawing postcard announced violates scheme will still not know whether such a 15.56.030(a)(2), nor do assert permitted scheme under alleged federal law violation is violation 15.56.030(a)(2), may therefore “needless- general of AS Their asser- ly violate the statute.” tion, elaboration, offered without that “[t]he mailing corrupt practice ... is a defined might persuaded “public I that a inter- be ... A.S. 15.56.030”is the sum total of their exception be est” to the waiver rule should argument require on this issue. We more adopted, propose It were the court to one. See, e.g., than this under the waiver rule. litigants not be well be that should *18 Cash, & Cash Architects v. 837 P.2d Wirum relating deprived of review of issues (Alaska 1992) (“Where 692, point 713-14 is strong public policy, affecting the citizens of cursory given more than a statement in whole, simply the state because the as brief, argument portion point the of a the will adequately by issues not been raised have appeal.”). considered on not be hand, in counsel. On the other this case the notes, justification again rule that
The court as one court has embraced once “every presumption in- addressing purported violation of reasonable will be election,” 15.56.030(a)(2), “presented dulged validity an that the State its favor of the of Kachemak, City position” Op. citing Turkington on at n. it v. the issue. 15. While (Alaska 1963). 593, If we are to argument is true that in its the State cites to P.2d indulge every presumption in fa- 15.56.030(a)(2) something reasonable — election, validity drawing always vor of the the failure is not an offer of a valuable thing, the Contestants to raise the AS question then the must be factual. If 15.56.030(a)(2) so, issue must constitute waiver its resolution should be left to the trial of that issue. court. court’s resolution the AS played This is the mischief when courts 15.56.030(a)(2)issue is troublesome for rea- upon take it themselves to address issues to fairly sons other than that it cannot be said scant, litigants paid which the any, have the issue was raised Contestants. attention. When there are no criteria to First, provides virtually guid- the court no guide addressing a court an issue not superior ance to the court on how to address litigants, raised “the decision whether example, the issue on remand. For the court litigant gets wholly new trial becomes does not declare whether the intent to induce arbitrary.” Anchorage, Clark v. Greater objective applying
is to be determined an Inc., (Alaska 1989) 780 P.2d subjective or a standard. J., (Compton, dissenting part). Second, the court holds that “there is no Contestants have not raised a claim that genuine dispute regarding the value of the postcard mailing violated AS postcards case,” offer the transmitted this sweeping Their assertion Op. at n. without evidence in the mailing that the corrupt prac- constituted a drawing record that the cash at issue is a tice under AS 15.56.030 does not ever ad- thing target voting group. valuable (a)(2). They dress subsection have failed holding The court assumption rests its on the utterly argue drawing the cash “[ajlthough actual value of a chance “money thing” or [an]other valuable offered to win potentially one thousand dollars is “with the intent to induce the [voter] to vote small, depending upon the number of draw- or refrain from for a candidate.” entrants, ing perceived value of the Because point, have failed to this chance to win a one drawing thousand dollar the court should not consider it. I would may considerably higher eyes be affirm judgment superior court. potential participants.” deciding pre- Id. contests, vious election we have relied on
expert evidence, testimony or other rather conjecture,
than mere to determine whether See, e.g.,
election laws were violated. Bouch- (Alaska 1972) Bomhoff,
er v. 495 P.2d (voiding vote on constitutional convention ref- ZOK, Appellant, Hassan erendum; part expert decision based in on testimony that misleading ballot lan- voters). guage Today biased the court Alaska, Reese, STATE of Mark strays practice, from this and bases its hold- Slaten, Appellees. Russel drawing thing offered a valuable nothing No. than S-5728. more its own sense of what drawing participants perceived. Supreme Court of Alaska. holding After genuine that there can be no Sept. dispute 1995. drawing present cash case thing, was an offer of a valuable Rehearing Denied Nov. states, noted, previously court that it need decide whether a cash always thing. Op. offer of a valuable at n. 16. If prepared the court say is not that a cash
drawing always of a valuable
thing, say, how it supporting can without
evidence, that the cash in this case
is an offer of a thing? valuable If a cash