Day in court for Rep. Nageak, Div. of Elections



Rep. Ben Nageak’s lawsuit against the Division of Elections and Lt. Gov. Byron Mallott is set to be heard in court today.

Superior Court Judge Andrew Guidi wants the trial sewed up by Oct. 3 so the Division of Elections can issue ballots for the early voting that will take place in the Nov. 8 general election cycle. Although Nageak’s attorneys asked for more time to develop their case,  which deals with a remote and far-reaching area of the state, the judge expedited it at the request of the State.

Nageak came within eight votes of winning against challenger Dean Westlake in a race fraught with fraud and error. District 40, which Nageak represents, covers the North Slope Borough and Northwest Arctic Borough. Nageak has served as a legislator since 2013.

The complaint filed by Nageak and four individuals from District 40 allege that errors in the way the District 40 primary election was conducted likely led to a change in the outcome.

In the precinct of Point Lay, for instance, there was but one election worker present. In other voting locations, only two election workers were present during voting hours. By law, three qualified election workers are required.

In Shungnak, poll workers provide every voter with both a Democrat and Republican ballot. The voters were not required to cast questioned ballots.

In Kivalina, seven voters were allowed, at their insistence, to vote both a Democrat and Republican ballot, but were required to cast questioned ballots. Those ballots were not originally counted, but then were counted during the recount process several days later.

In Browerville, voters who were registered as Republicans were required to vote questioned ballots if they asked for the open ballot instead. The open ballot has Alaska Independence Party, Democrats, Libertarian, and other recognized parties and anyone is entitled to choose that ballot.

In Bettles, one voter was verbally identified as a Republican and given a Republican ballot, rather than offered a choice.

Buckland had numerous issues with special needs ballots. Only one voter indicated a party preference on the application, but all the voters received the Democrat ballot, in spite of the fact that some of the voters were non-declared and eligible to vote a Republican ballot.

The complaint continues, saying that election workers failed to properly complete the envelopes needed to establish the validity of these ballots and some of the information on the envelopes had been modified or revised.

A single person in Buckland claimed to have acted as the personal representative for 10 of the special needs voters.

The date that the special needs ballots were issues was not recorded, nor were the dates and times those ballots were returned. The date of the signature of the representative who signed the ballot was obscured in 11 of the 12 ballots.

Further, the special needs ballots were not returned to Nome until six days after the election, which is also a violation. Special needs ballots must be returned on Election Day, according to state law.

Amazingly, despite the small population of Buckland (425), it sent in more special needs ballots than Palmer (6,500) or Wasilla (8,600).

In Nome, where all the District 40 ballots were sent for processing, four absentee ballots were misplaced. The Division of Elections in Juneau held a private meeting during which they determined they would select four questioned ballots and count them as absentee ballots.

The lawsuit also points out a violation of the 14th Amendment to the U.S. Constitution. By allowing some voters to cast more than one ballot, and by allowing those ballots to be counted, Election workers deprived other voters in District 40 of the equal protection guaranteed by the 14th Amendment.

The plaintiffs in the case are calling for a new election for District 40, which would likely be held during the General Election on Nov. 8.

Lawyers for Nageak are Stacey Stone and Tim McKeever. For the lieutenant governor and his Division of Elections Director, there are four: Margaret Paton-Walsh, Elizabeth Bakalar, Laura Fox, and Joanne Grace. Thomas Amodio represents Dean Westlake in the proceedings.


The case being brought today has a few similarities to the one brought by David Finkelstein vs. Sandra Stout, the director of the Division of Elections in in the 1988 election, and then-Lt. Gov. Stephen McAlpine.


An appeal of the election in House District 13 was made after a recount showed that Brad Bradley had won by nine votes, 3,563 to 3,554. During the recount, Stout determined that 26 votes had been improperly counted. The ballots had been comingled, making it impossible to know for whom they had been cast.

Stout decided to proportionately reduce Bradley’s vote total by 15.02 votes and Finkelstein’s total by 9.98 votes.

That decision narrowed the gap between the candidates to 3.96 votes, and Stout proceeded to certify the election, and Bradley as the winner.

However, the judge concluded that numerous errors made it impossible to know the true outcome of the election, and he called for a do-over. The new election was held on April 4, 1989 and  Finkelstein won.

As a sidenote to history, during the period when the matter was being contested, Ann Spohnholz, mother of current representative Ivy Spohnholz, was appointed to fill the position. This year, Ivy was appointed to fill the position left vacant when District 14 Rep. Max Gruenberg passed away on Feb. 14.