Judge says court should uphold House District 1 recount

Dec 21, 2018

Anchorage Superior Court Judge Eric Aarseth speaks at an appeal of a recount in a Fairbanks state house race on Thursday, Dec. 20, 2018, in Anchorage, Alaska. AP Photo/Dan Joling

Yesterday’s judicial hearing for the lawsuit contesting the ballot recount for Alaska House District 1 lasted six and a half hours. Judge Eric Aarseth was appointed to be a Special Master to review the case and make recommendations to the Alaska Supreme Court, which will hear the case in January. When the hearing was over, Aarseth stuck by the findings of the Division of Elections that made Bart LeBon the winner of the race by one vote.

 

  

The hearing focused on the November 30th recount. Up to that date, the Democrat Kathryn Dodge and Republican Bart LeBon were tied.

Aarseth heard arguments picking through nine challenged ballots, three from Dodge, five from LeBon and one they both challenged. That one had both ovals filled in but also an X on the oval for Bart LeBon. The Dodge campaign said it should count as the voter rejecting LeBon, but lawyer Stacey Stone, representing Bart LeBon, says her side thought it should count as a valid voting mark for LeBon.

“The recommendation from Judge Aarseth was not to count that ballot. If there was an alternative, he said that vote would count for LeBon because an “X” is a valid vote mark.”

The LeBon side argued three ballots with odd markings should count for him, but were thrown out as invalid. Stone says they also asked for two absentee ballots from the same address to be counted, but they were mixed up in each other’s envelopes.

“Those two people signed their ballots, we think they are a husband and wife, we’re not sure. But one voter had the other’s voter identification, and vice-versa.”

The Dodge side challenged a questioned ballot from a voter whose address changed when he registered for the Alaska Permanent Fund Dividend last year, which, under the new law, automatically updated his voter registration. He showed up to vote in District 1 but was not on the roster, so he voted a questioned ballot, in this case for Kathryn Dodge.

Aarseth said he would recommend the Supreme Court not count the ballot.

“Through his PFD application, pursuant to the law, registered himself for a district other than District 1, and that he was limited to vote in that district.”

The judge quoted the statute requiring voters to be signed up in 30 days before the election, and voters need to realize their PFD registration will register them to vote.

“If there’s going to be a challenge done on how that statute is applied, that has to be done outside this hearing. Beyond the scope.”

Aarseth kept the scope of the hearing quite narrow, using only evidence and testimony about the November 30th recount of the House District 1 ballots, rather than the election itself. And you might ask, aren’t they the same thing? But the challenge the Dodge campaign filed was to the recount, not the election. They are seen as statutorily different.

The Dodge side challenged two absentee ballots; from a woman who listed her address in an auto glass repair shop, and a doctor with an address at an office. Neither place was an actual residence, but Aarseth kept his view of this evidence quite narrow.

“If people are concerned about whether these folks are not really residents of this district or even of Alaska, that’s for other divisions to investigate. But at the time of the recount, everything the voters filed was consistent with the election laws.”

The Doctor provided an affidavit saying he lives part time in California and part-time in another Fairbanks political district. But Aarseth said the doctor’s testimony was gathered after the recount, and his status could not have been known by the Division of Elections.

“We have this affidavit by the voter. My treatment of it is that it is beyond the scope of a recount appeal. Evidence after the recount is not something that can be considered.”

“It is a notarized affidavit, I made a ruling on the authenticity of it. That affidavit is clear that ‘I am not a resident of District 1’ and he should not have voted in the District 1 election. But those are the imperfections in the statutory scheme for elections.”

Dodge’s attorney, Patrick Munson was on the phone and double-checked with the judge about the voter’s status.

“If the affidavit is considered, than you would find that he was not a resident for 30 days leading up to the election, as a fact matter. Is that accurate?”

Aarseth said the two absentee ballots, both which were for LeBon, should be counted.

Aarseth will release his written report today, recommending that all the rulings by the Division of elections be upheld by the Alaska Supreme Court. If they do, the vote count will remain the same, with Bart LeBon the winner by one vote. The Supreme Court hears arguments in the case on January 4th.

Arseth complemented the attorneys on their performance and the depth of their raesearch and arguments.