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.
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:
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.
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