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Cissna v. Division of Elections (11/8/96), 931 P 2d 363
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Notice: This opinion is subject to formal correction before publication in the Pacific Reporter.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, phone (907) 264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
SHARON MARIE CISSNA, )
)
Petitioner, ) Supreme Court No. S-7820
)
v. )
)
SANDRA L. STOUT, DIRECTOR, )
DIVISION OF ELECTIONS, )
)
Respondent, )
)
and ) O P I N I O N
)
ANN SPOHNHOLZ, ) [No. 4426 - November 8, 1996]
Intervenor. )
)
Recount Appeal.
Appearances: Max Gruenberg, Gruenberg &
Clover, Anchorage, for Petitioner. James L.
Baldwin, Assistant Attorney General, and
Bruce M. Botelho, Attorney General, Juneau,
for Respondent. Jonathan B. Rubini and
Thomas A. Amodio, Rubini and Reeves,
Anchorage, for Intervenor.
Before: Compton, Chief Justice, Rabinowitz,
Eastaugh and Fabe, Justices. [Matthews,
Justice, not participating.]
COMPTON, Chief Justice.
I. INTRODUCTION
Sharon Cissna petitioned this court for a recount of the
primary election vote for the Democratic Party nomination for State
Representative for Election District 21. The Director of the
Division of Elections (Director) certified that Ann Spohnholz,
Cissna's opponent, won the primary election by one vote. We affirm
the decision of the Director. (EN1)
II. FACTS AND PROCEEDINGS
This is a recount appeal brought pursuant to
AS 15.20.510(2). (EN2) A recount appeal is a direct review by this
court of the recount decision. (EN3) Cissna seeks a recount of
four votes cast by absentee ballot and a review of the decision to
deny one person the opportunity to vote. She bases her claims on
three separate grounds. The relevant facts are not disputed.
First, Cissna argues that the Division of Elections erred
in refusing to count three votes of persons who voted in, but did
not reside in Election District 21. Cissna maintains that
statutory authority permits these voters to cast ballots in the
district where they previously resided.
The votes at issue were cast by Debra Huling, Karen
Adams, and Gregory Nothstine. All three persons once resided and
were registered in District 21, but moved into other voting
districts months before the primary election. Although none are
residents of District 21, all three voted by absentee ballot in the
District 21 primary election. None had reregistered in a new
district before voting.
When Adams and Nothstine cast their absentee ballots on
August 27, 1996, they each signed the Absentee In Person Ballot
Oath and Affidavit Envelope. Each completed the oath and affidavit
form, on which each listed an address at a physical location
outside District 21 under the box asking for "Alaska Residence
Address." The form describes the resident address as "Where You
Live (DO NOT use PO, PSC, or RR Box)." It provides another space
for a mailing address, which Adams and Nothstine identified as the
same as their residence address. Huling signed an Absentee In
Person Ballot Oath and Affidavit Envelope on August 20. On that
envelope she gave an address within District 21 for both her Alaska
Residence and her mailing address; however, that day she
reregistered to a different voting district. (EN4)
The votes of Adams, Nothstine, and Huling for State
Representative for District 21 were not counted based on the
Director's determination that each resided outside District 21.
Their votes for statewide races were counted.
Second, Cissna contests the rejection of Richard Snyder's
ballot. Snyder voted and sent his ballot to the Division of
Elections two days after the election. Snyder, who was temporarily
staying in Wisconsin, timely applied to vote by absentee ballot in
July. On August 22, upon learning that the Division had no record
of his ballot application, Snyder faxed the Division all
information necessary for the application. The Division sent the
ballot to Snyder by first class mail on August 23. Snyder did not
receive the ballot until August 28, the day following the election.
On August 29, he voted, had his vote witnessed by two persons, and
sent the ballot to the Division.
Snyder's ballot was not counted. Cissna makes two
arguments to support her claim that Snyder's ballot was improperly
rejected. First, she argues that the absence of voter number,
social security number, and birth date do not render it invalid
because the ballot was sufficiently identified by Snyder's
signature. Second, she argues the ballot should not have been
rejected as untimely, since election officials were at fault in not
getting the ballot to Snyder in a timely manner. (EN5)
Cissna's third claim is based on the decision by election
officials not to allow Stephanie Butler to vote. Cissna claims
that election officials denied Butler the opportunity to vote on
the ground that Butler's name was not listed on the "official
registered list"and Butler arrived to the polls after they closed.
(EN6)
Cissna requested a recount of the election results on
these three grounds, pursuant to AS 15.20.430. (EN7) The Director
reviewed and certified a recount of the Election District 21
primary election, as authorized by AS 15.20.480. (EN8)
III. DISCUSSION
A. Standard of Review
This case involves statutory and constitutional
interpretation. It does not require that we resolve any factual
dispute. We exercise independent judgment when interpreting
statutes which do not implicate an agencyþs special expertise or
determination of fundamental policies. Keane v. Local Boundary
Commþn, 893 P.2d 1239, 1241 (Alaska 1995). Similarly, we apply our
independent judgment to constitutional issues, adopting "a
reasonable practical interpretation in accordance with common
sense"based upon "the plain meaning and purpose of the provision
and the intent of the framers." Arco Alaska, Inc. v. State, 824
P.2d 708, 710 (Alaska 1992) (citing Kochutin v. State, 739 P.2d
170, 171 (Alaska 1987)).
B. The Scope of a Recount Appeal
Election results may be considered by a court pursuant to
the recount appeal provision, AS 15.20.510, and the election
contest provision, AS 15.20.540. (EN9) This court has direct
appellate jurisdiction to review recount decisions specified in
AS 15.20.510. By contrast, election contests are filed in the
superior court, and are heard by this court only upon review of the
superior court's decision. Willis v. Thomas, 600 P.2d 1079, 1081
(Alaska 1979). The proceedings also are substantively distinct.
An election contest requires a showing of malconduct, fraud or
corruption of election officials, ineligibility of a candidate, or
a corrupt practice sufficient to change an election result. We do
not consider these issues in a recount appeal. (EN10) No judgment
of the superior court has been appealed to this court; election
contest issues are not properly before us at this time.
The inquiry in a recount appeal is whether specific votes
or classes of votes were correctly counted or rejected. Id.
Issues this court has considered on recount appeals include the
validity of punch cards and a variety of marks on ballots, the
proper procedures for absentee voting and consequences for failure
to follow those procedures, and registration requirements. See
Finkelstein v. Stout, 774 P.2d 786 (Alaska 1989) (residency,
registration, absentee ballots); Fischer v. Stout, 741 P.2d 217
(Alaska 1987) (punch card ballots, residency, registration,
absentee votes); Hickel v. Thomas, 588 P.2d 273 (Alaska 1978)
(marks in boxes, punch card ballots); Willis, 600 P.2d 1079
(registration, absentee votes); Carr v. Thomas, 586 P.2d 622
(Alaska 1978) (punch card ballots). (EN11)
While recount appeals involve the counting or rejection
of votes, they are not limited to determining the facial validity
of the ballots. Willis, 600 P.2d at 1082. In Willis, this court
reasoned that a proper review of the Director's recount decision,
made pursuant to procedures set forth in AS 15.20.480, required
that this court "have the power to search underlying records and
election materials to ensure that a vote was cast in compliance
with the requirements of Alaska's election laws." Id. The search
includes an inquiry into such issues as whether a voter was
properly registered or was a resident of the district in which he
or she voted. Id.
C. Rejection of the Votes of Prior District 21 Residents
Voters in state and local elections must be residents of the
election district in which they vote. Alaska Const. art. V,  1;
(EN12) AS 15.05.010(4). (EN13) Despite these constitutional and
statutory requirements that a voter reside in the election district
in which he or she seeks to vote for thirty days "immediately"or
"just"preceding the election, id., Cissna argues that the votes of
non-residents of District 21, Adams, Nothstine, and Huling, should
be counted in the District 21 primary election. In support of this
argument, Cissna relies on AS 15.20.015 and AS 15.05.020(10).
Alaska Statute 15.05.020 sets forth the procedures for
determining the residence of a voter. It provides in part:
(1) A person may not be considered to have
gained a residence solely by reason of
presence nor may a person lose it solely by
reason of absence . . .
(2) The residence of a person is that place in
which the person's habitation is fixed, and to
which, whenever absent, the person has the
intention to return. . . .
(3) A change of residence is made only by the
act of removal joined with the intent to
remain in another place. There can only be
one residence.
. . . .
(5) A person does not gain residence in any
place to which the person comes without the
present intention to establish a permanent
dwelling at that place.
. . . .
(8) The term of residence is computed by
including the day on which the person's
residence begins and excluding the day of
election.
. . . .
(10) The address of a voter as it appears on
an official voter registration card is
presumptive evidence of the person's voting
residence. This presumption is negated only
by the voter notifying the director in writing
of a change of voting residence.
Cissna argues that AS 15.05.020(10) requires that when a voter has
not reregistered before voting, the address where he or she is
registered to vote constitutes legal residency for voting purposes.
Thus despite moving from District 21 months before the primary
election, Adams, Nothstine, and Huling were entitled to vote as
residents of District 21 because they had not yet filled out a
voter registration card with a change of address to the new
location where each lived. In support of this claim, Cissna relies
on a 1982 Attorney General's Opinion which concludes that once a
voter has registered in one district, "the only evidence of intent
to establish a new residence is reregistration." 1982 Formal Op.
Att'y Gen. 7.
As a preliminary matter, we are not bound to follow
positions stated in an Attorney General's Opinion. While opinions
of the attorney general are entitled to some deference, they are
not controlling on matters of statutory interpretation. Carney v.
State Bd. of Fisheries of Alaska, 785 P.2d 544, 548 (Alaska 1990).
Alaska Statute 15.20.015 allows certain persons to vote
in the district where they previously resided. It provides:
A person who meets all voter qualifications
except that listed in AS 15.05.010(4) is
qualified to vote by absentee ballot in the
election district in which the person formerly
resided if the person lived in that election
district for at least 30 days immediately
before changing residence.
Cissna reads this language to allow any person who moves from a
residence where that person lived for at least thirty days to vote
as though he or she still resided in that district, irrespective of
when that person moved. She supports this claim with the same
Attorney General's Opinion, which concludes that a non-resident may
vote in the district where he or she was previously registered,
when that person either has reregistered within thirty days of the
election, or has "residency"or "domicile"in a new district, but
is properly registered in his or her old district. (EN14) 1982
Formal Op. Att'y Gen. 7.
Petitioner's interpretation of both statutes would permit
a person to vote at a prior residence so long as that person had
never reregistered to vote by signing a voting registration card
listing a new residence. By this reasoning, it would not matter
when the individual moved. Taken to its logical extreme, Cissna's
interpretation allows someone who lived in a district for two
months, but moved from that district to a permanent residence in
another district twenty years ago, to vote in the election district
in which he or she resided two decades earlier. Such an
interpretation contradicts Article V, section 1 of the Alaska
Constitution and would render meaningless the residency
requirements set forth in AS 15.05.010.
Alaska Statutes 15.05.010 and 15.20.015 should be read in
conjunction. Together, they protect the voter who has recently
moved away from one district but has not resided in a new district
for thirty days and cannot satisfy Alaska constitutional voting
requirements under Article V, section 1. Under AS 15.20.015, that
person can vote in the district in which he or she resided
immediately prior to moving. Without such a provision, the voter
would be denied his or her right to vote. However, a non-resident
can vote only in the case where the requirement of a thirty day
residency in the new district is not met. When that residency
window is met, the voter should reregister in his or her new
district. If the voter fails to do so, he or she risks having any
ballot cast in the old district partially rejected as to the local
district vote.
As a practical matter, certain persons who move to a new
district, but do not reregister or notify the election officials in
writing of a change in residency, may have their votes counted in
the district of their prior residency simply because election
officials do not know that their residency has changed. In the
interest of administrative efficiency, AS 15.05.020(10) allows the
election official, in the absence of any written notification of
change in residency, to presume that a voter still is a legal
resident of the district in which he or she is registered. The
statute is limited, however, to the circumstance where the
officials have no notification of a move to another district.
Attorney General's Opinion No. 7 accounts for this limited
circumstance. Any broader reading would eviscerate the voter
qualification requirements set forth in Article V, section 1 and
AS 15.05.010. Thus, when election officials have written notice of
a change in residency, this notice suffices to rebut the
presumption of voter residency at the district where that voter
previously registered.
In Fischer this court considered a registration issue
similar to that raised by Cissna. Thirteen voters submitted
absentee ballots for a District H candidate but listed on the
absentee ballot envelope a voting residence outside the district in
which they voted. Fischer, 741 P.2d at 222. Alaska Statute
15.20.030 requires that absentee ballots be returned in an
envelope, with the voter's certificate swearing under oath that the
voter is a qualified voter "in all respects." The ballot envelope
in Fischer included a space for the absentee voter to fill in his
or her permanent residence. Id. This court concluded that the
residency form on the envelope satisfied the rebuttal requirement
under AS 15.05.020(10) of "an affidavit on a form prepared by the
director setting out the new voting residence,"and because the
residency listed by the voters was outside the district in which
they voted, the votes were to be excluded. Id.
Similarly, in the present case Adams and Nothstine filled
out an oath on the back of the ballot envelope, claiming residency
outside the district in which they voted. Following the reasoning
in Fischer, the Director correctly found both to be registered in
a district other than District 21.
Unlike Adams and Nothstine, Huling stated by affidavit on
her absentee ballot that she resided in District 21. However, that
day she reregistered at another address, which is in District 22.
The registration application is a voter certification submitted to
the Division of Elections; the application carries the warning that
any person providing false information on the voter certification
may be convicted of a misdemeanor. This certification was received
before the votes were counted and recohe ballot. As it serves the
same function as the certification of residency on the back of the
ballot, the registration form rebuts the presumption that Huling
legally resides in District 21, and establishes her legal residency
in District 22.
The next consideration is whether, despite being
residents of another district, the votes of Adams, Nothstine, and
Huling should be counted. Alaska Statute 15.20.211 sets forth the
instances where cross-district voting is permitted. Alaska Statute
15.20.211 provides in part:
(a) If a qualified voter of the state votes a
ballot for an election district other than the
election district in which the voter is
registered, the votes cast for statewide
candidates and for statewide ballot
propositions and statewide questions shall be
counted. If the qualified voter voted for a
candidate for the state senate from the senate
district in which the voter is a resident, the
vote shall be counted. The votes cast for
candidates or ballot propositions or questions
not appearing on the ballot of the district in
which the voter is a resident may not be
counted.
The declarations on the back of the ballot envelope establish that
Adams and Nothstine rebutted the presumption of their residency in
District 21, and established their residency in another voting
district. By reregistering to vote at her new address, Huling also
established her residency outside District 21. Therefore, the
votes of non-residents, who certified in writing to election
officials that they no longer resided in District 21, were properly
rejected as to the primary election for State Representative for
Election District 21.
D. Rejection of Richard Snyder's Vote
An absentee ballot will not be counted if the ballot is
not postmarked on or before the date of election. AS 15.20.203;
AS 15.20.081(e). It is undisputed that Snyder's absentee ballot
was postmarked on August 29, 1996, two days after the primary
election, and was witnessed one day after the election.
Cissna maintains that Snyder's vote should be counted
nonetheless, because his failure to submit a timely ballot was the
fault of election officials. She relies on Fischer for the
proposition that when a voting error is made entirely by election
officials, the vote will be counted, even if it does not meet
required statutory procedures. Fischer does not address the
situation presented in this case. In Fischer the issue was whether
a questioned ballot should be counted in the election results;
there is no indication in Fischer that the voter cast the
questioned ballot at any time after the election deadline. See
Fischer, 741 P.2d at 217-18.
It is not contested that Snyder made a good faith effort
to vote. Election officials may have misplaced his first
application. Upon receipt of his second ballot application,
election officials sent Snyder a ballot by first class mail on
August 23, 1996, creating a risk that Snyder would not receive the
ballot by August 27. Nonetheless, timely receipt was possible and
did occur in other cases involving comparable distances. (EN15)
Even assuming that election officials were negligent and were at
fault for Snyder's late receipt of the ballot, Snyder's ballot was
properly rejected as untimely. Public policy requires that votes
cast after polls close not be counted. (EN16) Knowledge of even
unofficial election results may affect a person's vote. This is
particularly true in a case such as this where a candidate's loss
by one vote is highly publicized. To allow otherwise could erode
the integrity of the entire voting process. (EN17)
E. Refusal to Allow Butler to Vote
Cissna argues that election officials improperly
prevented Stephanie Butler from voting. The reason or reasons for
denying Ms. Butler the opportunity to vote are irrelevant to our
resolution of the ballot recount. Because she never cast a ballot,
no ballot can be counted or rejected, as contemplated in
AS 15.20.510. (EN18) The Butler claim is not now justiciable
before this court.
IV. CONCLUSION
The certification by the Director is AFFIRMED. (EN19)
ENDNOTES:
1. This Opinion follows this court's Order, issued on October 3, 1996, affirming the
Director's decision. This Opinion explains the basis for that Order.
2. AS 15.20.510 provides:
A candidate or any person who requested a recount who has reason
to believe an error has been made in the recount . . . (2) involving
candidates for the legislature or Congress or the office of governor
and lieutenant governor may appeal to the supreme court in
accordance with rules as may be adopted by the court. Appeal
shall be filed within five days of the completion of the recount.
Upon order of the court, the director shall furnish the record of the
recount taken, including all ballots, registers, and other election
material and papers pertaining to the election contest. The appeal
shall be heard by the court sitting without a jury. The inquiry in
the appeal shall extend to the questions whether or not the director
has properly determined what ballots, parts of ballots, or marks for
candidates on ballots are valid, and to which candidate or division
on the question or proposition the vote should be attributed. The
court shall enter judgment either setting aside, modifying, or
affirming the action of the director on recount.
3. The recount appeal comes before this court on an expedited basis. By statute, the
Director must distribute ballots and other election material to local election boards 25 days
before the general election. AS 05.15.050. The general election for State Representative for
House District 21 is scheduled for November 5, 1996. We granted the Director's motion for
an expedited hearing, and for a ruling by October 11, 1996, to enable the Division to meet the
statutory deadline.
4. In Cissna's First Statement of Objections, she submitted the affidavits of Adams and
Nothstine stating that they also reregistered to their current address at the same time, or just
after, casting their ballot. At oral argument, counsel for petitioner stated that Adams and
Nothstine were mistaken in their belief that they had reregistered to their new addresses the day
they cast their ballots. However, Cissna presented no evidence to the court contradicting the
affidavits. As this factual dispute does not affect our analysis, we do not need to address it
further.
5. Cissna contends that the Division advanced both untimeliness and insufficient
identification as bases for their refusal to count Snyder's ballot.
6. A factual dispute exists as to whether Butler arrived at the polls just prior to or after their
closing time of 8:00 p.m. Again, this dispute is not relevant to our determination, as Butler's
time of arrival at the polls does not affect our ruling. See infra at 18.
7. AS 15.20.430 authorizes applications for recount "to the director"of the Division. AS
15.20.430(a) provides in part:
A defeated candidate or 10 qualified voters who believe there has
been a mistake made by an election official or by the counting
board in counting the votes in an election, may file an application
within five days after the completion of the state review to the
director for a recount of the votes from any particular precinct or
any election district and for any particular office, proposition, or
question.
8. AS 15.20.480 provides in part:
In conducting the recount, the director shall review all ballots
whether the ballots were counted at the precinct or by computer or
by the district absentee counting board or the questioned ballot
counting board to determine which ballots, or parts of ballots,
were properly marked and which ballots are to be counted in the
recount, and shall check the accuracy of the original count, the
precinct certificate and the review.
9. AS 15.20.540 provides:
A defeated candidate or 10 qualified voters may contest the
nomination or election of any person or the approval or rejection
of any question or proposition upon one or more of the following
grounds: (1) malconduct, fraud, or corruption on the part of an
election official sufficient to change the result of the election; (2)
when the person certified as elected or nominated is not qualified
as required by law; (3) any corrupt practice as defined by law
sufficient to change the results of the election.
An election contest is brought in the superior court within ten
days after completion of state review. AS 15.20.550.
10. Prior cases may have blurred the line between issues appropriately considered in a
recount appeal and in election contests. In large part any confusion results from the
consolidation of recount appeals and election contests for review. We now clarify that issues
of malconduct as contemplated in AS 15.20.540 are not properly raised on recount appeal.
11. These are the only Alaska cases to review recount decisions.
12. Article V, section 1 of the Alaska Constitution provides in part:
Every citizen of the United States who is at least eighteen years of
age, who meets registration residency requirements which may be
prescribed by law, and who is qualified to vote under this article,
may vote in any state or local election. A voter shall have been,
immediately preceding the election, a thirty day resident of the
election district in which he seeks to vote.
13. AS 15.05.010 sets forth voter qualifications:
A person may vote at any election who
(1) is a citizen of the United States;
(2) is 18 years of age or older;
(3) [Repealed]
(4) has been a resident of the state and of the election district in
which the person seeks to vote for at least 30 days just before the
election; and
(5) [Repealed]
(6) has registered before the election as required under AS 15.07
and is not registered to vote in another jurisdiction.
14. The Attorney General's Opinion states:
The question arises, then, as to whether a person properly
registered in one district who then claims 'residency' or 'domicile'
in a new district - but seeks to reregister less than 30 days before
an election - can claim prior existing residency and meet the
constitutional and statutory requirements of 30-day residency.
Such an interpretation, we believe, would be irreconcilable both
with the comprehensive scheme of regulation otherwise established
in the code, and with the purposes of the 30-day requirement
itself. With respect to all other forms of registration and
reregistration, the 30-day residency and registration requirements
are coextensive, and we can divine no rational reason for creating
an exception for a person seeking to reregister in a new district
less than 30 days before an election. Additionally, such a
construction would require the state to enmesh itself in the
subjective intent which the voter held before the date of
registration and would require the state to reopen the registration
process with respect to the election at issue less than 30 days prior
to the election date .
. . . .
A voter 'resides' in the district where he is registered. If a person
has 'moved' to another district, but has not reregistered, he may
continue to vote a full absentee ballot (or in person) in his district
of registration, irrespective of the time period which has elapsed,
or what others may think of his subjective intention.
1982 Formal Op. Att'y Gen. 7.
15. The affidavit of Division of Elections official, Gail Fenumaia, established that ballots sent
on August 23 and 24 to Washington D.C., Pinole, California, Randolph Air Force Base and
Kemper, Texas, Roy and Clarfield, Idaho, as well as several addresses in Washington State and
Alaska, among others, were received, voted, and returned to the Division in a timely manner.
16. AS 15.20.081(c) requires that the Director send absentee
ballots "by the most expeditious mail service." Cissna argues that
sending the ballot by first class mail four days before the
election amounts to a violation of this statute. We do not agree
that AS 15.20.081(c) requires election officials to fax or send by
overnight mail a ballot when an application is received a short
time before an election is scheduled. To require otherwise would
unduly burden the Division as to both time and money. Even if
AS 15.20.081(c) had been violated, acceptance of a late ballot is
not an appropriate remedy.
17. As this court finds that Snyder's vote was properly rejected as untimely, it does not
consider whether the ballot contained proper identification. We note, however, that Stout agrees
with Cissna that Snyder's signature provided sufficient identification.
18. Cissna has filed an election contest in superior court, alleging that election officials
improperly barred Stephanie Butler from voting. The superior court is the proper forum for this
misconduct claim.
19. As with our October 3, 1996 Order in this case, nothing contained in this Opinion should
be construed as affecting legal proceedings presently pending in the Superior Court for the Third
Judicial District at Anchorage arising out of the Election District 21 primary election,
specifically a civil suit filed by Stephanie Butler and Rex Butler (3AN-96-7635) and an election
contest filed by Cissna (3AN-96-7595).
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