*1 FINKELSTEIN, Appellant, David
v. STOUT, Director of the Alaska
Sandra Elections, Stephen
Division of A.
McAlpine, Lieutenant Governor
Alaska, Appellees, Bradley, “Brad”
W.E.
Intervener.
No. S-3107.
Supreme Court Alaska. 11, 1989.
Jan.
7«7 *2 Finkelstein 13.After by appellee certified Director of Elections, the Division of the win- 3,549 ner of that race. count was 3,546. Bradley’s request,
At
a recount was
2,
on
1988.
conducted
December
and
recount,
on the
Based
Stout certified
3,563
Bradley had
defeated Finkelstein
3,554,
margin.
a nine vote
recount,
In the course
Stout
that 26
im
determined
votes had been
properly counted. Finkelstein Ex. 1.
commingled,
The ballots had
ren
dering
impossible
for
it
to ascertain
they had
Based on the
whom
been cast.
formula set forth in
v. Hick
Hammond
(Alaska 1978),
el,
The Director of Elections had counted the
agrees
Judge
with
require
Katz that this
they
votes
these individuals and
have
mandatory
ment is
directory,
rather than
it
commingled. Judge
been
Katz declined to
is our view that
carry
Finkelstein did not
apply
proportionate
reduction formula
his burden of showing a violation of this
Hickel,
set out in Hammond v.
588 P.2d requirement.
(Alaska 1978),
denied,
cert.
U.S.
99 S.Ct.
4.Absentee
ballot lacking
disagree.
We
The
legally
mark could be
signature
sufficient to
signature
serve as the voter’s
challenge
One
was made under this
if that was the voter’s intent. Fischer v.
category
accepted by Judge
which was
Stout,
5.Undated witness
witness dates
7.Different
Three individuals cast
Thirty-two
absentee bal
voters submitted absen
attesting
lots on which the
official did not
tee ballots which had
been witnessed
date
signature.
his or her
two non-official witnesses on different
challenges.
these three
We dis
All
dates.
of these votes were counted.
agree.
attesting
The
However,
official witness is
segregated
the Division
nine of
purpose of this
that if
were counted il-
One
statute is to insure
the total so
voter,
that the ballot was marked
legally
directly
can
deducted.
the votes
else, in
and not someone
circumstances
remaining twenty-three
have
Mississippi
free from coercion. The
Su-
commingled.
Katz ruled that
concerning
preme Court has said
a similar
thirty-two
of these votes were
all
requirement:
disagree
the reasons that
counted. We
certificate...,
in addition
certify-
follow.
affidavit,
ing that the voter executed the
certifies the voter first
exhibited blank
a.
which was not marked or voted
witness,
sets out the
Alaska Statute
before it was exhibited to the
and that the voter then retired out of the
by mail. In
procedures for
sight
witness’
but within his
so
part,
provides:
relevant
that section
that he could see that he voted but not
Upon receipt of an absentee ballot
voted,
how he
that no one was
*4
voter,
mail,
presence
the
in the
of [an
ballot,
he marked his
that the voter was
may proceed
...
to mark the
official]
and,
voting,
not solicited or
in
advised
secret,
place
in
to
the ballot in the
finally,
making
after
in
his ballot
envelope,
place
the small en-
small
secret,
placed
the
it in
voter
the en-
larger envelope,
sign
and to
velope in the
velope,
envelope
and sealed the
in
closed
the voter’s certificate on the back of the
certifying
presence,
the
officer’s
larger envelope
presence
in the
of an
signed
then
and made affidavit to the
official listed in this subsection who shall
first certificate.
sign
attesting official and shall date
Legislature
It is thus clear that the
in-
signature.
If none of the officials
the
signatures to
on
en-
tended both
the
reasonably
in
ac-
listed
this subsection
velope
subsequent
there were
because
cessible,
the
an absentee voter shall have
requirements
integrity
ensure the
best
persons over the
ballot witnessed
two
of an absentee ballot.
age
years....
of 18
Ragland,
Fouche v.
So.2d
interpreted
In Fischer v.
we
this
(Miss.1982).
that the two non-official
section to mean
objective
one
is to insure that the
Since
present
witnesses must be
when the voter
mark his or her own ballot and
signs
stated:
the voter’s certificate. We
uncoerced, it
make no
the vote be
would
25.110(a)
15.20.081(d) and 6 AAC
AS
voting
pres-
require
in the
sense
secret
persons
specify the classes of
authorized
official,
waiving
pres-
ence of
while
an.
attesting officer.
If no
to serve as an
requirement
ence
when two non-official
available,
the voter
appropriate officer
are used.
witnesses
may sign the voter’s certificate in the
legislative history
present
of the
The
age
presence
persons over the
of
two
statute,
15.20.081(d),confirms the view
AS
those
years
and have
two witnesses
pres-
in
ballot is to be voted
that the
sign
form.
the attestation
attesting
ence of either an
official or two
added,
(emphasis
footnote
b. v.Willis not exclusive. In Thomas, 600 1079, (Alaska P.2d 1979), 1083 n. 9 Having established what the law quoted the following language from Carr v. quires, step the next is to determine wheth- Thomas, 622, (Alaska 1978), 626 complied er it In with. the case of the Walker, Rich v. quoted which in turn 237 thirty-two containing signa- ballots (Ark.1964) as Ark. 478 S.W.2d dates, tures subscribed on different it can follows: high degree said with a of confidence ballot, place that the voter did not mark the All provisions of the election law are envelope, place it in the small the small mandatory, if sought enforcement is be- envelope larger envelope sign in the fore election in proceeding a direct the voter certificate on the back of the purpose; but after election all larger envelope presence in the of both directory only, should held in support non-official witnesses. If this had been result, unless of a character to done, following the dates the witnesses’ affect an obstruction the free and Thus, would be consistent. the intelligent casting of the or to the vote presump- certificates themselves rebut the result, ascertainment of the or unless the regularity tion of and demonstrate non- provisions affect an essential element of compliance with the law. election, expressly or it unless is de- particular clared the statute that the c. validity act is essential to the of an elec- question tion, The next is whether the or-that its omission shall render it properly director counted these absentee void. larger envelope pres- provided the back of the in the sentative to the election official who expeditious ence of the above-listed official described or the ballot or the most mail service,
persons sign attesting postmarked day who shall not witnesses. later than the of may supervisor The voter then return the ballot to the election in his envelopes, by personal repre- enclosed in the district. ballots invalidated because attesta- pres- in the court of requirement is, illegality. use There oaths seven tion ence of non-official witness above, quoted ballots notarized language the terms of county an obstruction to “of a to affect clerk. at character Id. 132. The voters were casting of the vote intelligent not in the presence the free and clerk’s they signed when essential element of or to affect an ... ... the documents. Id. All of the voters testi- earlier, AS 15.- As noted the election...” that they fied wanted the county clerk to no- that the 20.081(d) designed to vote insure signatures. tarize their Id. In invalidating that it was the elector and ballots, cast that of the court stated: coercion. free from cast in circumstances question, swear- affidavits [A]s in- Moreover, requirement protects the subscribing by voter and ing to and process itself. Non- tegrity of the ballot notary attesting by a or other official requirements of AS compliance with statutes are not mere technicalities. The of these risks the frustration simply prescribing these duties are principles. fundamental signifi- directory. acts called for are signing against we noted safeguards v. and mis- Fischer cant fraud was a condi- take, puri- of the attestor presence necessary preserve are 15.20.081(d)pro- elections, validity: mandatory “AS ty and are tion our will be valid that an absentee duties. vides signed by envelope is only if the ballot Id. P.2d at attesting an
the voter In Fugate Mayor v. and City Council This state- P.2d at 223. officer.” Buffalo, 348 76 (Wyo.1959), twelve ab- however, is, It correct. ment is dictum. sentee ballot affidavit forms were attested 15.20.- requirements of AS Because the an election official not in the 081(d) protect the essence of serve both of the affiants. Id. at 79. These votes intelligent voting to safe- free and illegal. Id., were held to be at 85. See also , integrity process, guard the of the ballot Voters, McCavitt v. Registrars 385 Mass. regarded as requirements should be (ballots (1982) N.E.2d mandatory. marked outside presence of notary held in- *6 358 Registrars, v. Board Desjourdy valid). (1971)is N.E.2d 672 instruc- Mass. twenty-two absentee ballots tive. There the fact that ballots in the presence in of a nota- were not marked case were not cast ry required by Massachusetts law and part non-official witnesses is due in envelopes signed by nota- were failure of the voter instructions on vot- presence of the voters. Id. ries outside the oath explicitly require- er form to state Supreme 677. The Judi- N.E.2d at ment that the vote be cast in the Massachusetts held these cial Court of witnesses. We have noted that er- counted: should not have been ballots “solely rors of election offi- ap- followed violated procedure [the cials” will not invalidate ballots. Willis v. up significant statute], sets which plicable Thomas, at (registered 600P.2d voters’ rep- to insure that the safeguards names not on lists day). voters’ on election Its viola- the will voter. resents See also Fischer v. 741 P.2d at simply a in more than techni- tion results observation, however, 224. That was not stand, As these irregularity. cal ballots made where the official omission caused or knowing way whether we have no mandatory contributed to a violation of a by in those in they fact marked were quirement, and we declineto it to such extend they were received and whose names cases. A illegally voter has who voted has an cast. counted, in having interest his or her vote omitted). (citations Id. at 677 and that high interest stands on a level where Atwood, 93 N.M. Kiehne v. illegality the source of the lies with election (N.M.1979), hand, is another case where officials. a On the other where the provisions designed Challenges to insure B. Intervenor’s vote violates process, integrity electoral lacking ballots 1.Absentee public supervening a has interest —that voter fundamentally sound elections—which is Bradley contends that fifteen absentee votes, counting illegal protected not re- ballots which were not counted because gardless illegality. of the source of their signed not were should have been Judge
included. Katz held that the Divi- postmarks refusing 8.Ballots without received sion was correct to include these the election ballots. We concur. after challenges made under this Four were rejected category, all of which were 2.Special overseas absentee ballots
Judge Katz. We concur. Three voters special submitted ab sentee ballots and later regular mailed ab 9.Unregistered voter sentee ballots which for various reasons were held invalid. Bradley argues that The state has conceded that the absentee under these original circumstances the spe unregistered question ballot of the cial ballots of these voters should have Judge counted. Katz should not have been been counted. The disagreed Division accepted challenge. concurred and We Judge Katz recommended that the decision concur as well. upheld. Division be We concur. ballots 10.Punchmark 3.Proportionate Formula challenges here are
Involved
Bradley
fourteen votes for
where the
In order to determine whether the
punchmarks
placed in the
boxes
counting
errors
commingled ballots
Bradley
and Finkelstein.
both
might
have
propor
affected the
challenges, namely
three of these
employed.
tionate formula was
See Ham
29, 20,
to ballots
and 30.
Katz was
Hickel,
mond v.
has as its These instruction that the vot- witnessed. prove ing process to these need not should fatal ballots. Never- itself is, furthermore, Special nothing theless the There said to Master concluded that properly director counted these dis- that his or her oath inform voter puted doing In so in absentee ballots. should be executed Special as follows: Master reasoned lay negate To of 35 witnesses. 1978)4 (Alaska Thomas, P.2d grounds that did
individuals
omitted).
(footnote
made
requirements never
not meet
or their witnesses would
known to them
alluded to
The authorities
above are reflec
of a most
disenfranchisement
constitute
recognition
of this court’s
tive
these circum-
egregious sort. Under
right
fundamentally important
is a
vote
stances,
of these individuals
the ballots
right.5
precedents are also in ac
Our own
counted.
“[ajbsentee voting
cord
the view that
with
in
regulation should not be construed
analysis
Master’s
my
Special
In
view
unduly
the ex
manner that
interferes with
voting
in
this court’s
deci-
accord with
right by
qual
ercise of this
those otherwise
Stout,1
said:
we
sions. In
v.
Fischer
regard
ified to vote.”6 In this
the Su
the decision
upheld
In
we
of a
Willis
preme Court of Colorado further concluded
of
master to count the votes
two voters
that:
appear
names did not
on the vot-
whose
Nor should the exercise of the
registrars
ers list
failed to
because
right
upon compliance
conditioned
registration applications
send their
degree
precision
many
that in
with a
of Elections.
We will his or her witnesses were to Further, voting process. avoids the wholesale disfranchise- which there fraud, qualified ment of electors. See Carr v. no indication this record of Blair, 5. (Alaska 1. See also v. 1987). Erickson (Col.1983). ("the right to vote is a fundamental right order"). of the first 2. Id. at 225. at 754. 6. Id.
3.
Id. at 224.
7.
Id. at 754-55.
reject the rule
The Erickson court went on to
4.
Id. at 225. In Carr this court noted:
compliance
adopted
of strict
and in turn
a stan-
permit
are reluctant
a wholesale
Courts
compliance concluding
of substantial
dard
qualified
through
electors
disfranchisement
adequate
of both
such standard "is
to the task
any reason
‘[where]
no fault of their own and
perserving
preventing
fraud
the elections and
the statute can be
able construction of
found
result,
right
suffrage against un-
the absent voter's
which would avoid such a
the courts
necessary
favor it.’
should and will
technical restrictions."
Id. at 755.
Application
See
Moore,
*9
also
(brackets
original)
(quoting
N.J.Super.
795-797 eoereion, wrongdoing, pat- or a intentional among the similarity names of
tern signed the witness certifica-
witnesses who ballots. In such on these absentee
tions penalize the ab-
circumstances I would failure of Alaska’s
sentee voters for the unambiguous
election officials to furnish concerning the manner
instructions voter, or her and his
which the absentee witnesses, required carry- lay in the respective out their roles absentee »
voting process.7 determining purposes consequences Implicit my I would reach is resolution agreement any lay with the state’s contention that the noncompliance wit- certificates, requirements of should be con- AS executing nesses 15.20.203(b)(2), directory, strued under