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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Edgmon v. Slate, Office of Lieutenant Governor, Division of Elections (02/16/2007) sp-6099
Notice: This opinion is subject to 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) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| BRYCE EDGMON, | ) |
| ) | |
| Applicant, | ) |
| ) | |
| v. | ) Supreme Court No. S- 12436 |
| ) | |
| STATE OF ALASKA, OFFICE | ) O P I N I O N |
| OF LIEUTENANT GOVERNOR, | ) |
| DIVISION OF ELECTIONS, | ) No. 6099 - February 16, 2007 |
| WHITNEY BREWSTER, Director, | ) |
| ) | |
| Respondent, | ) |
| ) | |
| CARL MOSES, | ) |
| ) | |
| Intervenor. | ) |
| ) | |
Original Application for Relief to the
Supreme Court.
Appearances: Joseph W. Geldhof, Law Office
of Joseph W. Geldhof, Juneau, for Applicant.
Sarah J. Felix, Assistant Attorney General,
and David W. M rquez, Attorney General,
Juneau, for Respondent. Thomas P. Amodio,
Amodio Stanley & Reeves LLC, Anchorage, for
Intervenor Moses.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, and Bryner, Justices. [Carpeneti,
Justice, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
This appeal arises out of a dispute over the results of
a recount in the District 37 Democratic primary election. The
incumbent representative, Carl Moses, requested a recount after
the official election results showed Bryce Edgmon as the winner
by one vote, with 765 votes for Edgmon and 764 votes for Moses.
The State Division of Elections conducted a recount which showed
Moses as the winner by one vote. Edgmon appealed the recount
results, alleging that the Division had improperly failed to
count six ballots.1 Because the issues raised in this case
required expedited resolution due to the deadlines for printing
ballots in advance of the November 2006 election, we issued an
oral order on the record on September 21, 2006, ruling that the
five contested ballots should be counted. This opinion sets out
the reasons for our ruling.
II. FACTS AND PROCEEDINGS
Bryce Edgmon ran against incumbent Carl Moses in the
Democratic Party primary election held on August 22, 2006 for the
District 37 State House of Representatives seat. On September
12, 2006, the State Division of Elections certified the election
results showing Edgmon with 765 votes as the winner over Moses,
who received 764 votes. Moses requested a recount, which the
Division conducted and which showed Moses as the winner by one
vote, with 765 votes to Edgmon's 764. At the recount, Division
Director Whitney Brewster determined that six ballots could not
be counted.
Both candidates challenged the Division's determination
that three ballots could not be counted because they were
"overvoted." An "overvoted" ballot is when a voter "marks more
names than there are persons to be elected to the office," in
which case "the votes for candidates for that office may not be
counted."2 Brewster concluded that the three ballots had
sufficient marks in the ovals next to both candidates so that AS
15.15.360(a)(4) precluded counting them. Two of the three
ballots had completely shaded ovals next to Edgmon's name but
also contained tracings that touched the edge of the ovals next
to Moses's name. The third ballot had an "X" in the oval next to
Moses's name but also had a line appearing to cross out both
Edgmon's name and the oval next to his name.
The candidates also challenged the Division's decision
not to count two special needs ballots.3 A special needs ballot
allows a qualified disabled voter to vote through a personal
representative.4 Brewster rejected two special needs ballots
because the personal representative completed the lines for
residence address, but left the lines for mailing address blank.
The form has separate lines for the two addresses.
On September 19, 2006, Edgmon appealed the Division's
decisions, asking for an expedited hearing to review the
Division's determinations. Moses moved to intervene and did not
oppose Edgmon's request for an expedited hearing. The Division
requested a decision no later than September 22, 2006, to ensure
that the ballots be sent to the printer in time to meet statutory
distribution deadlines. We held oral argument on September 21,
2006, and issued a decision on the record that same day.
III. STANDARD OF REVIEW
No disputes of material fact exist in this case.5
Resolution of the case requires that we interpret statutory
provisions and apply those provisions to the facts. The
interpretation of statutory provisions is a question of law that
we subject to our independent review.6 Under the independent
judgment standard, we adopt "the rule of law that is most
persuasive in light of precedent, reason, and policy."7
IV. DISCUSSION
A. Ballots Excluded as "Overvotes" Should Be Counted.
Edgmon argues that the Division should have counted
three ballots that Brewster excluded as overvoted. The Division
argues that all three ballots were overvoted in that they
contained marks for both candidates. Proper disposition of the
ballots requires that we carefully examine AS 15.15.360, which
governs the counting of ballots.8 Subsection .360(a)(4) directs
the Division not to count a ballot if the voter marks more names
than there are open seats for that office. Whether the Division
appropriately categorized the ballots as containing overvotes
depends on whether the markings next to the second name
constituted "marks" to designate a vote.9
Subsection .360(a)(1) limits the ways a voter may
"mark" a ballot to " `X' marks, diagonal, horizontal, or vertical
marks, solid marks, stars, circles, asterisks, checks, or plus
signs that are clearly spaced in the oval opposite the name of
the candidate." Subsection .360(a)(5) further clarifies which
marks meeting the requirements of (a)(1) should be counted as
votes, providing that "[t]he mark specified in (1) of this
subsection shall be counted only if it is substantially inside
the oval provided, or touching the oval so as to indicate clearly
that the voter intended the particular oval to be designated."10
Reading these provisions together, an overvote occurs
if the voter has voted for two candidates with "marks" as defined
by subsection .360(a)(1) that clearly indicate the voter's intent
to vote for more than one candidate.11 Because a mark meeting the
requirements of subsection .360(a)(1) cannot be counted unless
the voter's intent is clear, we begin by analyzing whether the
second mark on each overvoted ballot clearly indicated the
voter's intent to vote for a second candidate.
Moses argues in favor of a bright line rule that would
consider the ballots overvoted without examining voters' intent.
But the terms of the statute itself make voter intent paramount.
The statute requires that before a mark is counted as a vote, it
must comply with the requirements under subsection .360(a)(1) and
clearly indicate voter intent as required by subsection
.360(a)(5). These terms are mandatory and require strict
compliance.12 Contrary to Moses's argument that judicial review
of ballots would open a "Pandora's Box," AS 15.20.510
specifically envisions such a review in a recount appeal,
providing that "[t]he 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."
Moreover, we have consistently emphasized the
importance of voter intent in ballot disputes. In Willis v.
Thomas, we noted that ballots should be counted where they
"present clear evidence of the voters' intent."13 Similarly, in
Finkelstein v. Stout, we held that ballots should be counted
where a voting machine was "voting low" and the voters' intent
was clear.14 Other state high courts have also looked to voter
intent in resolving ballot disputes. In considering a recount
appeal, the Maine Supreme Judicial Court ruled that a ballot
should be counted where a voter had placed an "X" next to two
candidates' names, but had scribbled over one "X."15 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."16 Similarly, the Wisconsin Supreme Court has
emphasized that "the voter shall not be disenfranchised because
of mere mistake, but his intention shall prevail."17
The voters' intent on the three ballots excluded as
"overvoted" is clearly to vote for only one candidate. The
second marks are improper marks - not votes. At oral argument,
the Division cited Willis v. Thomas18 for the proposition that a
mark touching any part of the candidate's square should be
counted as a vote. But as we emphasized in Willis, "the crucial
question in determining the validity of ballot markings is one of
voter intent."19
In the case of the two ballots with a completely shaded
oval next to Edgmon's name and a trace touching the edge of the
oval next to Moses's name, the voter completely shaded the oval
for all other races on the ballot.20 A review of the entire
ballot therefore suggests that the voter understood the rules and
used a completely shaded oval - not a trace of an edge of the
oval - to indicate a vote. Under these circumstances, such stray
marks cannot be read to clearly indicate an intent to vote a
second time in the same race. Given the command of subsection
.360(a)(5), that only marks clearly indicating an intent to vote
be counted as votes, these marks cannot be counted as overvotes
and the ballots should be counted as votes for Edgmon.
The third allegedly overvoted ballot has an "X" in the
oval next to Moses's name and a line striking through Edgmon's
name and the oval next to it. This ballot is not overvoted and
should be counted. In all other races, the voter indicated a
vote with a single "X" in the oval next to one candidate's name.
The line extending through Edgmon's name cannot be said to
indicate an intent to cast a vote for Edgmon. Instead, a marking
crossing or striking out a candidate's name accompanied by a vote
for the other candidate suggests an emphatic vote against a
candidate. Where accompanied by an "X" in the oval next to the
other candidate's name in the same manner as all other votes on
the ballot, the line through Edgmon's name and the oval next to
it is a stray marking. The ballot is not overvoted and should be
counted as a vote for Moses.
B. Special Needs Ballots Should Be Counted by the
Division.
Edgmon challenges the Division's determination that two
special needs ballots should not be counted where the personal
representative completed the section for residence address, but
did not separately fill out the blank for a mailing address. The
Division argues that the representatives thus failed to set out
their mailing addresses as required by statute.
Alaska Statute 15.20.072(c)(2) requires that personal
representatives provide both residence and mailing addresses.21
But we are persuaded that if the addresses are the same, a single
listing meets the terms of the statute. As Moses notes, the
statute does not require that the addresses be listed on separate
lines or set out twice by individuals whose mailing and residence
addresses are the same. Nor does the Division of Elections's
form indicate that the address should be listed twice if the
residence and mailing address are the same.22 A reasonable person
could infer that the second address line need only be completed
if the mailing and residence addresses are different.
In this case, it is fair to infer that the personal
representatives' mailing and residence addresses are the same.
Both personal representatives reside in Anchorage. We take
judicial notice that unlike some communities in the state,
Anchorage is a community with home delivery for a significant
portion of its residents. In each case, the representative
listed a street name and number, along with a postal zip code.23
In each case, the address appears on its face to be both a
mailing and a residence address. This is not a case where an
individual has listed a post office box which could not possibly
be a residence address,24 or a park bench25 which could not
possibly be a mailing address. Moreover, the burden of proving a
vote should not be counted is on the challenger to that vote.26
The Division provided nothing to suggest that the addresses
provided by the representatives were not both mailing and
residence addresses.27
Not only do the addresses appear on their face to be
both mailing and residence addresses, but an elections clerk
reviewed the personal representatives' forms before issuing a
ballot to them. Issuance of the ballot after receipt and review
of the form suggests that Division staff found the form to meet
statutory requirements at the time the ballot was issued. Given
the importance of the "opportunity to freely cast [one's]
ballot,"28 we will not disenfranchise special needs voters where
the personal representatives' forms appear on their face to
comply with the statute.
Absent any specific statutory or regulatory requirement
that addresses be listed separately, where there is a reasonable
inference that the addresses are the same and the Division has
failed to produce any evidence to suggest that the addresses are
not the same, the ballots at issue must be counted.
V. CONCLUSION
For these reasons, we ordered that the Division count
the five contested ballots. Of the three ballots not counted as
overvoted, two were to be counted as votes for Edgmon and one was
to be counted as a vote for Moses. The two special needs ballots
were returned to the Division to be opened and counted in
accordance with Division procedures for counting special needs
ballots.
_______________________________
1 Although Edgmon originally appealed the Division's
determination that six ballots could not be counted, all parties
stipulated that one ballot was properly not counted because the
voter was not registered.
2 AS 15.15.360(a)(4).
3 Edgmon also challenged one ballot disputing voter
registration status. The parties later stipulated that Brewster
properly determined that the ballot should not be counted.
4 AS 15.20.072.
5 In our order of September 20, 2006, we ordered the
parties to submit a list of any disputed material facts prior to
oral argument on September 21. The parties submitted no list,
confirming that no material facts were in dispute.
6 N.W. CruiseShip Ass'n of Alaska v. State, Office of
Lieutenant Governor, Div. of Elections, 145 P.3d 573, 576 (Alaska
2006).
7 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
8 The relevant subsections of AS 15.15.360 provide:
(a) The election board shall count
ballots according to the following rules:
(1) A voter may mark a ballot only
by filling in, making "X" marks, diagonal,
horizontal, or vertical marks, solid marks,
stars, circles, asterisks, checks, or plus
signs that are clearly spaced in the oval
opposite the name of the candidate,
proposition, or question that the voter
desires to designate.
(2) A failure to properly mark a
ballot as to one or more candidates does not
itself invalidate the entire ballot.
(3) If a voter marks fewer names
than there are persons to be elected to the
office, a vote shall be counted for each
candidate properly marked.
(4) If a voter marks more names
than there are persons to be elected to the
office, the votes for candidates for that
office may not be counted.
(5) The mark specified in (1) of
this subsection shall be counted only if it
is substantially inside the oval provided, or
touching the oval so as to indicate clearly
that the voter intended the particular oval
to be designated.
(6) Improper marks on the ballot
may not be counted and do not invalidate
marks for candidates properly made.
(7) An erasure or correction
invalidates only that section of the ballot
in which it appears.
9 If not, they are "improper marks" that do not
"invalidate marks for candidates properly made." AS
15.15.360(a)(6).
10 AS 15.15.360(a)(5) (emphasis added).
11 Given the comma before the words "or touching the
oval," the intent clause could be read to apply only to marks
touching the oval. But we do not read the clause in such a
limited manner. First, we can discern no reason for the
legislature to mandate that voter intent apply only to one type
of ambiguous mark. Second, the legislative history suggests the
clause should apply to both circumstances. The original statute,
enacted in 1960, contained a list of three circumstances where
marks should count as votes: "The mark shall be counted only if
it is substantially within the square provided, or touching the
square and no other, or placed near the square so as to indicate
clearly that the voter intended the particular square to be
designated." Ch. 83, 3.36(5), SLA 1960. A 1963 amendment
deleted the last item in the list of three ("or placed near the
square") but left the modifying intent clause. Ch. 80, 8, SLA
1963. The presence of the comma is likely therefore explained by
the fact that it originally separated a list of three. Based on
this history and the importance of voter intent in election case
law as detailed later in this opinion, we read the intent clause
to apply to both types of ambiguous marks.
12 AS 15.15.360(b) provides that "[t]he rules set out in
this section are mandatory and there are no exceptions to them."
13 600 P.2d 1079, 1085 (Alaska 1979) (holding that voter's
intent was not clear and punchcard ballots could not be counted
for Willis where the voter circled the box opposite candidates'
names and then punched out all of the circled boxes except that
opposite Willis's name).
14 774 P.2d 786, 792 (Alaska 1989); see also Fischer v.
Stout, 741 P.2d 217, 221 (Alaska 1987) (holding that voter's
intent was clear where voter used pen rather than the punchcard
machine).
15 In re Primary Election Ballot Disputes 2004, 857 A.2d
494, 503 (Me. 2004).
16 Id.
17 Roth v. LaFarge Sch. Dist., Bd. of Canvassers, 677
N.W.2d 599, 605 (Wis. 2004) (quoting State ex rel. Blodgett v.
Eagan, 91 N.W. 984 (Wis. 1902)).
18 600 P.2d at 1085.
19 Id.
20 See, e.g., In re Primary Election Ballot Disputes 2004,
857 A.2d at 504 (reasoning that "[g]iven the voter's demonstrated
ability to comply with the instructions and fully darken ovals
when voting, we cannot reasonably interpret this mark as anything
other than a stray marking").
21 AS 15.20.072. The relevant portion of subsection (c)
requires that
[i]f the request for a special needs
ballot is made through a representative, the
representative shall sign a register provided
by an election official. The register must
include the following information:
(1) the representative's name;
(2) the representative's residence
and mailing address . . . .
22 Nowhere does the form specify that both address
sections must be completed, even if the addresses are the same.
23 Indeed, one of the personal representatives provided a
nine-digit postal zip code.
24 See Fischer, 741 P.2d at 221 n.7 (taking judicial
notice that "human beings are of insufficiently diminutive
stature to dwell comfortably within [a post office box]").
25 See id. at 221.
26 Finkelstein, 774 P.2d at 788.
27 The Division expressed concern at oral argument about
the administrability of requiring the Division to determine
whether an address is both a residence and a mailing address.
However, the Division could resolve this by revising its form to
specify that representatives must complete the mailing address
section if different from the residence address.
28 Carr v. Thomas, 586 P.2d 622, 626 n.11 (Alaska 1978)
(citations omitted).
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