Dodge legal team: Two votes—including loose ‘mystery’ ballot—must be counted in tied House District 1 race

With a recount scheduled for tomorrow in the pivotal and currently tied House District 1 race between Republican Bart LeBon and Democrat Kathryn Dodge, attorneys representing Dodge sent a letter to the Division of Elections today outlining the case for a single loose ballot and a second disqualified “overvote” to be counted.

As it stands, the race between the two candidates—which will also decide whether party-line Republicans hold a slim but outright majority in the House—is tied 2,661 to 2,661 and could be decided by a coin flip if those results hold the same after the recount.

But as we’ve written before, there’s a lot between now and the flip of a coin.

Both Dodge and LeBon have already lawyered up, according to the Anchorage Daily News, and the Dodge team has already set to work with legal arguments about not one, but two votes.

The loose ballot

First there’s the matter of that loose “mystery” ballot, which Division of Elections has confirmed “appears to be a marked ballot for candidate Dodge.” Early speculation over the weekend pointed to the ballot being included in the final tally that was certified on Monday, but the Division of Elections opted to delay a decision and noted that it “could still be counted during the recount depending on investigation findings.”

In a five-page letter to the Division of Elections Executive Director Josie Bahnke, Dodge’s legal team argues that legal precedent should lean more toward counting a vote and that the burden for disqualifying it should be very high.

Ms. Dodge believes that disqualifying the ballot would be inconsistent with long-standing Alaska law unless there is conclusive evidence that the ballot was not legally cast. The right to participate in the democratic process and to have one’s vote counted is fundamental; the ‘overriding principal is that the voter shall, ordinarily have his vote recognized…’ To that end, ‘the burden of proving a vote should not be counted is on the challenger to that vote.’ Carrying this burden requires a challenger to identify a specific statutory or constitutional basis for disqualifying the ballot (and disenfranchising the voter who cast it), bearing in mind Alaska law requires every reasonable inference and construction of election laws to be made in favor of counting the ballot. In short, the Division should count a ballot unless there is conclusive evidence that it cannot be legally counted.Dodge legal team letter to Division of Elections Director Josie Bahnke

The letter argues that nothing currently suggests that the ballot should be disqualified.

Details about the ballot have been relatively scarce. We know that the loose ballot was included in the questioned ballot materials but didn’t have the envelope that normally accompanies such ballots to help identify whether they should be counted.

“Our understanding is that the ‘loose ballot’ was validly issued and marked by a voter who apparently placed it in a secure box with the questioned ballots (or gave it to a poll worker who did so) instead of placing it in the optical scanner,” the letter explains. “This explains why 366 ballots were issued on election day, but only 365 were run through the optical scanner.”

Oh, geeze, that does sound like a pretty reasonable explanation with potential evidence to back it up, but Dodge’s legal team continues to explain that even the above explanation shouldn’t matter.

“We may never know exactly why that mistake occurred, but it’s not necessary to construct a hypothetical scenario to justifying counting the ballot. Quite the opposite: the burden is to prove that the ballot should not count. Mere speculation, hypotheticals or vague claims that ‘something doesn’t seem right’ are not sufficient to carry that burden or to disenfranchise the voter who cast the ballot. The voter should not be disenfranchised because of mere mistake.”

The overvoted ballot

The letter also goes on to discuss the merits of counting a second absentee ballot that has so far been deemed as an “impermissible overvote.”

The team describes an absentee ballot where a person filled in the ovals for both Dodge and LeBon, but marked an “X” over the LeBon oval.

Apparently, this vote was not counted for either candidate because in the eyes of the Division of Elections the filled-in oval for Dodge and the filled-in, but crossed-out oval for LeBon indicates the voter’s intent to vote for both candidates and must therefore be disqualified entirely.

The Dodge legal team argues otherwise.

And as if this election didn’t already have enough connections to House Speaker Bryce Edgmon—his 2006 election to office was decided by a coin flip and his speakership could also be decided this race’s coin flip (if it happens)—his Supreme Court case that got the race into the coin flip territory in the first place was also cited by the Dodge legal team for providing the “analytical roadmap” for determining voter intention.

This roadmap, essentially, argues that for a vote to be disqualified the ballot marks must have “clearly indicated the voter’s intent to vote for a second candidate.”

Here’s what the legal team has to say about the vote:

Here, the evidence does not suggest that the voter intended to vote for two candidates in House District 1. As far as we know, the voter who completed the ballot cast all of his or her votes by filling in the ovals next to a candidate’s name; he or she did not use an ‘X’ to cast any other votes. The only oval he or she put an ‘X’ over was the filled-in oval next to Mr. LeBon’s name. Because the voter has demonstrated his or her ability and intent to cast a vote by filling in ovals in every other race, it is unreasonable to conclude that the ‘X’ through the filled-in oval next to Mr. LeBon’s name was intended to cast a vote for him. Rather, common sense suggests that the ‘X’ was intended to indicate that the voter did not intend to cast a vote for Mr. LeBon. The fact that the voter was filling out an absentee ballot makes this interpretation all the more likely because it would ave been impractical for the voter to destroy the ballot and fill out a new one.Dodge legal team letter to Division of Elections Director Josie Bahnke

They also go back to the decision in Edgmon v. State to look for guidance on this issue:

“In Edgmon v. State, the Alaska Supreme Court relied on a similar case from Maine in which a voter had placed an ‘X’ next to two candidates’ names, but had scribbled over one ‘X.’ ‘The court reasoned that scribbling out…is a common method used by voters to retract a cast vote, and noted that it was unlikely that the voter intended to vote for two candidates for the same office.’”

That Maine case noted that “Scribbling out, making an X, or making an asterisk over a marked vote indicator are all common methods used by voters to retract a vote” (emphasis added by Dodge legal team.

Why it matters

Regardless of the outcome of Friday’s recount and the Division of Election’s decision on the loose “mystery ballot,” this case is surely headed to a legal fight. The letter from Dodge’s legal team is just a letter, but it’s the blueprints for the foundation of a legal argument for these to be counted (complete with plenty of citations of precedent).

Edgmon’s election didn’t go to a coin flip until more than a month after the polls closed, which followed a recount and the legal challenge that landed in the Alaska Supreme Court.

Still, the recount could potentially shift things enough to where the outcome of these two votes may or may not matter.

The recount in the 2012 election of Rep. Jonathan Kreiss Tomkins saw the Democrat’s lead shrink from 34 votes to 32 votes over Republican Rep. Bill Thomas. In 2016, now-former Rep. Dean Westlake extended a four-vote lead over Rep. Benjamin Nageak to eight votes after his recount.

Previous recounts have only shifted outcomes by a couple votes, but a couple of votes is all that’s needed here.

Full letter

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