PER CURIAM.
This case presents several issues of constitutional and statutory interpretation that arise from the count of votes following the 2010 election for one of Alaska's two seats in the United States Senate. Two of the contestants for that seat — Joe Miller, the Republican nominee, and Senator Lisa Murkowski, running as a write-in candidate — are parties to the lawsuit. Without seeking a recount, Miller filed suit in superior court challenging several decisions of the Alaska Division of Elections in counting the votes. Murkowski intervened, challenging other vote-counting decisions of the Division. Superior Court Judge William B. Carey upheld the Division's actions. Miller appeals, and Murkowski cross-appeals.
In resolving the questions presented by the parties, we are governed by a number of longstanding principles that we have consistently applied to election issues in Alaska over the past 50 years.
We start with the bedrock principle that "[t]he right of the citizen[s] to cast [their] ballot[s] and thus participate in the selection of those who control [their] government is one of the fundamental prerogatives of citizenship."
It is in light of our consistent application of these cardinal principles that we examine the issues presented in this case.
Joe Miller seeks an interpretation of election statute AS 15.15.360 that would disqualify any write-in votes that misspell the candidate's name. We do not interpret the statute to require perfection in the manner that the candidate's name is written on the ballot. Our prior decisions clearly hold that a voter's intention is paramount.
Miller points to language in AS 15.15.360(a)(11) providing that "[a] vote for a write-in candidate ... shall be counted if the oval is filled in for that candidate and if the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided." He argues that this subsection, read in the context of other provisions of the statute, requires that a write-in candidate's name be written and spelled perfectly, even if the voter's intent to vote for a particular candidate can be readily ascertained. But when read as a whole, AS 15.15.360's purpose is inclusive, not exclusive; it is designed to ensure that ballots are counted, not excluded. And this inclusiveness is consistent with the overarching purpose of an election: "to ascertain the public will."
Turning to the language of subsection (a)(11), it is evident that it does not require exact spelling. We agree with the State that subsection (a)(11) concerns pseudonyms. The "nickname" field on the declaration of candidacy form supports this interpretation. If that field were not present, a candidate with a pseudonym might write only his or her legal name on the form, thus invalidating ballots with the candidate's pseudonym written in.
As we have recognized, "a true democracy must seek to make each citizen's vote as meaningful as every other vote to ensure the equality of all people under the law."
Alaskan voters arrive at their polling places with a vast array of backgrounds and capabilities. Some Alaskans were not raised with English as their first language. Some Alaskans who speak English do not write it as well. Some Alaskans have physical or learning disabilities that hinder their ability to write clearly or spell correctly. Yet none of these issues should take away a voter's right to decide which candidate to elect to govern. We must construe the statute's language in light of the purpose of preserving a voter's choice rather than ignoring it. As we have consistently ruled, we remain "reluctant to permit a wholesale disfranchisement of qualified electors through no fault of their own, and `[w]here any reasonable construction of the statute can be found which will avoid such a result, [we] should and will favor it.'"
Our interpretation of AS 15.15.360 permitting abbreviations, misspellings, or other minor variations in the form of the name of a write-in candidate so long as the intention of the voter can be ascertained is also consistent with the federally mandated standard for counting the write-in votes of those voters living or serving in uniform overseas. The Uniformed and Overseas Citizens Absentee Voting Act provides that in counting the ballot of a uniformed services voter or other voter who is overseas, "[a]ny abbreviation, misspelling, or other minor variation in the form of the name of a candidate or a
Finally, Miller suggests that our interpretation of AS 15.15.360 will lead to elections being decided by the unbridled discretion of election officials in determining voters' intent through visual inspection of write-in ballots. But Miller concedes that other states use the same standard for counting write-in ballots and that Congress has mandated that standard. We see no basis for Miller to argue that the application of the standard in this election violates equal protection under either the state or federal constitution. First, only one person, the Division's Director, made the initial determinations whether write-in ballots demonstrated voter intent for a particular candidate; this avoids any constitutional infirmities that might arise from different reviewers applying the standard differently.
We affirm the decision of the superior court on this issue.
Miller alleges that the Division's procedure to manually count the write-in votes violated 6 AAC 25.085. He argues that this regulation requires the Division to manually examine and count only the write-in ballots the optical scanners had first validated. Miller claims that his interpretation of 6 AAC 25.085 would best "facilitate fairness" under AS 15.15.030.
Neither this regulation nor the statute Miller cites requires a particular procedure for counting write-in votes. Alaska Statute 15.15.030 addresses ballot preparation. It directs that ballots must be prepared "to facilitate fairness, simplicity, and clarity in the voting procedure"; it does not apply to the method used to conduct a count of write-in votes. In addition, Miller's contention that the Division should have manually counted only those write-in ballots that were first validated by the optical scanner ignores the State's uncontested showing that the optical scanner neither sorts nor segregates ballots. The machine merely counts filled-in ovals indicating a vote for those candidates whose names appear on pre-printed ballots and for the "write-in" category. It is possible to quantify the number of ballots that an optical scanner deems invalid, but these ballots are not segregated by the machine. Because the optical scanner counted a sufficient number of ballots for the "write-in" category in this election, it was necessary for the Division to conduct a manual count of the write-in ballots to determine for which candidates the write-in ballots had been cast.
Miller impliedly raises an equal protection argument under Bush v. Gore,
Significantly, the candidates had observers present who could challenge the category into which every ballot was sorted. The Division instructed the workers who conducted the initial sort of the ballots not to proceed unless observers were present at the table from both the Miller and Murkowski campaigns.
After the ballots were sorted, the Director personally examined the ballots in category four — ballots on which ovals had been filled in but the handwritten name was a variation or misspelling of "Lisa Murkowski" and other ballots challenged during the sorting process — to determine voter intent.
The Director examined ballots in category two in which no oval was filled in for the U.S. Senate race, and those ballots were not counted for any candidate. This was true of ballots on which voters spelled "Lisa Murkowski" correctly but failed to fill in the oval. The Director also examined "over-voted ballots"
As a result of this process, each candidate's vote tally was increased. The write-in vote count yielded the following tallies:
Lisa Murkowski, unchallenged 92,929 Lisa Murkowski, challenged, counted 8,159 Total counted for Lisa Murkowski 101,088 Lisa Murkowski, challenged, not counted 2,016 Joe Miller 20 Scott McAdams 8 Other registered write-in candidates 53 Other miscellaneous names 620 Total write-in votes 103,805
The total number of write-in votes identified by the Division workers was 103,805 but the optical scanner detected 102,252. Miller claims that because the total write-in votes from the manual count — 103,805 — was higher than the number of write-in votes detected by the optical scanner, the workers must have applied "more lenient standards" that unfairly advantaged Murkowski. He claims that "it is unclear how many additional votes Joe Miller, or any other preprinted candidate, would have gained, had those same standards been applied to all the ballots in the election." But having carefully examined the record in this case, we conclude that the record does not support Miller's contention that ballots in category two were treated differently depending on whether they were cast for candidates whose names were pre-printed on the ballot. Observers working on Miller's behalf had the opportunity to challenge the sorting of every ballot cast in the election, and every category-two ballot was individually examined, as were the ballots in category four.
For these reasons, we affirm the decision of the superior court on this issue.
Miller argues that the Division's write-in vote-counting methodology is a regulation, or set of regulations, that should have been enacted pursuant to the Administrative Procedure Act (APA).
The APA requires advance notice of a regulation before it can be applied in agency interactions with the public.
This case comes to us under unusual circumstances. The election was held on November 2, 2010. Without seeking a statutorily available vote recount by the Division
Miller filed suit in superior court on November 22, seeking not only declaratory and injunctive relief regarding the interpretation of AS 15.15.360, but also regarding: alleged disparate treatment of ballots, violation of other election statutes, the validity of the Division's write-in vote-counting methodology under the Administrative Procedure Act, the validity of classes of votes the Division counted, and the validity of the election results. Murkowski intervened in Miller's lawsuit, asking for declaratory and injunctive relief regarding the interpretation of election statutes, as well as challenging the validity of two classes of votes not counted by the Division. After expediting the proceedings, on December 10, 2010, Superior Court Judge William B. Carey upheld all of the Division's disputed actions, treating some claims as pure declaratory judgment requests and treating other claims as an election contest under AS 15.20.540.
It may be that certain legal issues could properly be brought to us pre-election or during an election with appropriate requests for declaratory and even injunctive relief. But the legislature has created two specific legal proceedings for election challenges that would normally apply to many of the issues in this case — an election contest and a recount appeal.
An election contest is authorized by AS 15.20.540, which provides that "a contest of the election as a whole" is heard first by the superior court.
By contrast, AS 15.20.510 provides for a recount appeal directly to our court to challenge the Director's decisions to count or not count votes during a recount of an election for, among other offices, the United States Senate.
With this legal framework in mind, we consider Miller's claims that two classes of votes should not be counted.
Miller alleged in his complaint that the Division accepted and counted as valid "write-in votes in which the candidate's name apparently was not written on the ballot by the voter" in violation of AS 15.15.360(a)(10), which provides that "the voter" must write in the candidate's name. In its summary judgment motion,
Miller submitted affidavits from observers of the ballot count attesting that in some precincts many write-in ballots appeared to have been written in similar handwriting. He argued that this evidence was "sufficiently suspicious that it legitimately raises the specter of voter fraud or other electoral improprieties." (This argument reflects that he considered his claim to be an election contest claim under AS 15.20.540, because misconduct is not an element of a recount appeal.
Alaska Statute 15.15.240 allows any qualified voter to ask for assistance, including assistance in writing in the name of a write-in candidate. No reasonable inference of misconduct can arise from the mere fact that the handwriting on multiple ballots appears to be from a small number of people. And though we have interpreted Civil Rule 56(f) liberally to allow a litigant a meaningful opportunity to obtain evidence to present a case,
Miller alleged in his complaint that the Division accepted and counted as valid ballots from voters who, "according to the official election registers from the precinct polling places, ... neither showed proper identification nor were excused from showing such identification." He noted that Alaska law requires a voter to show identification before being allowed to vote, unless an election official waives that requirement because the voter is known to the official.
In its motion for summary judgment, the State explained that although the voter registers contain spaces for election officials to specify how they verified each voter's identity, there is no statutory or regulatory requirement that the election officials actually fill in this information. Construing Miller's claim as an election contest, the State argued that Miller would have to produce some evidence both (1) that misconduct by election officials actually allowed unregistered persons to vote and (2) that the number of votes in question would affect the outcome of the election. Miller responded that he was not bringing an election contest on this issue, but rather was "contesting the validity of particular ballots." He argued that the failure of election officials to mark the register form for some voters was circumstantial evidence that "certain people may have voted without showing identification or being personally known to an election worker" and that he needed discovery to determine who they were.
The superior court treated this claim as an election contest, denied Miller's request for discovery, and granted summary judgment in favor of the State. The court noted that there is no requirement that election workers fill out the register, that the failure to fill out the register did not create a reasonable inference of misconduct by election officials, and that there was no legitimate basis for the requested discovery based solely on the failure to fill out some of the registers.
But Miller did not raise his claim as an election contest within the jurisdiction of the superior court. He instead raised a challenge to "the validity of particular ballots," which is in the nature of a recount appeal that would come directly to us. But he also did not ask for a recount and there is no recount decision about the validity of particular ballots for us to review. Miller cannot avoid the avenues established by the legislature to challenge elections: Miller asserted in the superior court that he did not bring an election contest, and he did not seek a recount by the Division. The only possible issue before us, then, is an issue not decided by the superior court: whether Miller is entitled to a judgment declaring that an entire class of ballots — those from voters for whom election officials did not mark on their registers how the officials verified the voters' identification — is invalid. He is not entitled
During the summary judgment briefing, Miller raised a new claim that an unknown number of felons ineligible to vote had actually voted in the election. This claim was discussed at oral argument before the superior court on the summary judgment issues. Shortly after the oral argument, Miller sought leave to file an amended complaint setting out this claim. The superior court issued its order on summary judgment without ruling on the motion to amend. In light of the expedited nature of this case, we accepted Miller's appeal of the summary judgment ruling without waiting for a final judgment from the superior court.
We now decline to reach whether the superior court implicitly denied the motion to amend and whether it was error to do so. We will resolve all issues actually before us by way of this opinion, and we will return jurisdiction to the superior court to consider Miller's motion to amend. But we note the following.
If Miller intends to pursue his superior court claim about improper voting by felons, he must do so as an election contest under AS 15.20.540. He must allege and prove the necessary elements of an election contest claim, including the level of misconduct necessary to support the claim and that the votes in question are sufficient to change the result of the election. In light of our other rulings and the current voting tally, it appears to us that the number of votes in question would have to be in the tens of thousands to change the result of the election.
Finally, we note that an election contest does not bar certification of an election and that there are no remaining issues raised by Miller that would prevent this election from being certified. Under AS 15.20.560, if an election contest ultimately changes the result of an election, judgment will be so entered and a new certification will be issued.
The Division did not count a number of ballots for Murkowski because the voters had not filled in the ovals next to the write-in line, even though the voters had written in Murkowski's name. Murkowski argues that these votes should have been counted for her.
In other words, the statute mandates that the write-in voter mark the oval in some fashion; a blank oval will invalidate the vote. Writing in the name but not marking the oval is not compliant with the statute. Murkowski is not entitled to declaratory judgment that AS 15.15.360 should be interpreted to excuse write-in voters from marking ovals as required by law.
For the reasons set out above, we AFFIRM the decision of the superior court in all respects. There are no remaining issues raised by Miller that prevent this election from being certified.
STOWERS, Justice, not participating.
The optical scanners deemed a total of 2,882 votes for the U.S. Senate race to be invalid. But the Division shows that the number of votes rejected by the optical scanner that could have been cast in Miller's favor is much smaller. The Division begins with the total number of ballots cast in this election (258,746) and subtracts the total number of votes cast for candidates on the pre-printed ballot (153,579) and the total number of write-in votes it identified in its manual tally (103,805). The difference (258,746-257,384 = 1,362) is the Division's calculation of the number of votes rejected by the scanners that could have been cast in Miller's favor.
