State argument: Mistakes happen




Alaska Assistant Attorney General Margaret Paton-Walsh was feeling peevish.

Judge Andrew Guidi had not yet arrived, so she took advantage of the few minutes she had to unload on the plaintiff’s attorney for  Nageak v. Mallott and Bahnke.

It was not yet 8:30 a.m. at Nesbitt Courthouse Room 504, and the square-built attorney in charge of defending the Division of Elections was engaged in domination politics over a seated Tim McKeever.

Paton-Walsh lectured – not in her library voice — about how his asking for documents was inconvenient to her and a waste of time.

McKeever had requested a discovery document this morning for something he felt should have been given to him earlier, and Paton-Walsh was now fuming.

“I have other work to do…” back at her office, she scolded him in front of about a dozen people who had gathered in the Anchorage Superior Court.

McKeever and fellow attorney Stacey Stone responded politely as Paton-Walsh spent more than a minute on a tirade over McKeever’s request.

All they wanted, McKeever and Stone tried to explain, was to see the chain of custody documents for the ballots from District 40, which is the North Slope Borough and Northwest Arctic Borough. And to know who was in the room when ballots were counted.

McKeever and Stone were there to represent Rep. Ben Nageak on Day 4 of his appeal of the irregular voting methods and final certified results of the House primary race, which was a series of missteps, mishaps and miscounts that began on primary day, Aug. 16.

The judge had consented to an expedited trial at the request of Paton-Walsh, who was now bristling with anger over McKeever’s discovery request.

The State’s first witness was Sallie Regan of Juneau, who serves on the State Review Board.

Regan capably responded to the questions posed by Paton-Walsh, as a witness who was well prepared for court. Paton-Walsh staged a bit of courtroom theater by having Regan open ballots from Kivalina and count all seven of them in front of the judge. It was unclear what the purpose of the exercise was, but it filled the time for the State’s side.

When McKeever questioned Regan, however, her testimony was uneven. She didn’t seem to understand his questions, asked for them to be repeated, rested her head on her chin and furrowed her brow. She was not able to answer some questions, and McKeever simply had to move on since she did not seem to understand him.

What became clear in Regan’s testimony is that errors were made in more than half of the precincts in District 40. Some small, some large, but lots and lots of errors. Dean Westlake of Kotzebue beat Rep. Nageak by eight votes, and the trial under way is to determine if a new election should take place in that race due to the extensive problems that have been identified.

McKeever asked Regan if the review board should have counted the 50 extra votes from Shungnak, and she emphatically stated yes, because to not count those votes would have disenfranchised those voters due to an election worker error, which would not be fair.

She did not seem to be concerned that by counting double ballots in Shungnak, the other voters in the District were disenfranchised, as they were only allowed to vote one ballot.

When McKeever asked her if it was common for Alaskans to vote two ballots, Regan said it was, but she was not able to provide any instances in recent years where it had occurred.



The trial continues Monday with closing arguments. A separate Supreme Court trial is scheduled for Oct. 12, and will consolidate election misconduct charges and the recount issues.

Judge Guidi wants the Superior Court trial to wrap up on Monday.