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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Sunny Guerin, Elizabeth Asisuan Toovak, and Vera Lincoln v. State of Alaska, Division of Elections (4/28/2023) sp-7648
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, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
SUNNY GUERIN, ELIZABETH )
ASISAUN TOOVAK, and VERA ) Supreme Court No. S-18457
LINCOLN, )
) Superior Court No. 3AN-22-06795 CI
Appellants, )
) O P I N I O N
v. )
) No. 7648 - April 28, 2023
STATE OF ALASKA, OFFICE OF )
LIEUTENANT GOVERNOR, DIVISION )
OF ELECTIONS, and NANCY )
DAHLSTROM and CAROL BEECHER, )
in an official capacity, )
)
Appellees, )
)
and )
)
ALASKANS FOR NICK BEGICH,
)
)
Intervenor. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, William F. Morse, Judge.
Appearances: Holly C. Wells, Mara E. Michaletz, and Zoe
A. Danner, Birch Horton Bittner & Cherot, Anchorage, for
Appellants. Katherine Demarest, Thomas Flynn, and Laura
Fox, Assistant Attorneys General, Anchorage, and Treg R.
Taylor, Attorney General, Juneau, for Appellees. Richard R.
Moses and Stacey C. Stone, Holmes Weddle & Barcott, P.C.,
Anchorage, for Intervenor.
----------------------- Page 2-----------------------
Before: Winfree, Chief Justice, Maassen, Carney, and
Henderson, Justices. [Borghesan, Justice, not participating.]
HENDERSON, Justice.
I. INTRODUCTION
Alaska's United States Representative Don Young died unexpectedly in
March 2022. Following his death, Alaska held a special primary election and a special
general election to select a candidate to complete the remainder of his term. Those
special elections were conducted using ranked-choice voting procedures adopted by
voters through a 2020 ballot measure. The ballot measure provides that the four
candidates receiving the most votes in an open primary election advance to the ranked-
choice general election.
After the 2022 special primary election but before the vote was certified,
the candidate who then had the third-most votes withdrew. The Division of Elections
(Division) determined that it would remove the withdrawn candidate's name from the
special general election ballot, but would not include on the ballot the candidate who had
received the fifth-most votes in the special primary election. Several voters brought suit
against the Division challenging this decision. The superior court determined the
Division's actions complied with the law and granted summary judgment in favor of the
Division. The voters appeal.
Due to the time-sensitive nature of election appeals, we affirmed the
superior court in a short order dated June 25, 2022. We now detail our reasoning in full.1
Because the Division properly applied a statutorily mandated 64-day time limit that
1 Under Appellate Rule 517 (b), when public officials who have been sued
in their official capacity leave office, their successors are automatically substituted as
parties to an appeal. Such changes are reflected in the caption of this decision.
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prevented the addition of the special primary's fifth-place candidate to the special general
election ballot, and because the statutory mandate did not violate the voters'
constitutional rights, we affirm the superior court's grant of summary judgment in favor
of the Division.
II. FACTS AND PROCEEDINGS
To provide context for our later discussion about the 2022 special elections,
we briefly summarize the ballot measure that amended Alaska's election process. We
then review the statutory framework governing special elections and candidate
withdrawal, before discussing the facts underlying this appeal.
A. Ballot Measure 2
At the November 3, 2020 election, Alaska voters approved changes to the
electoral process through "Alaska's Better Elections Initiative" (Ballot Measure 2).2
In
relevant part Ballot Measure 2 created an open primary election after which the top four
3
candidates advance to a ranked-choice general election.
1. Changes to primary elections
Prior to Ballot Measure 2, the Division oversaw primary elections for each
4
political party.
To become a candidate for a party's primary election, a person must
have been a member of the political party, or within the group permitted by the political
party to run as a candidate in the primary, and must have submitted a declaration of
2 Ballot Measure No. 2, §§ 1-74, SLA 2020.
3 AS 15.15.350, .25.010. We provided in-depth discussion of the changes
to Alaska's election law in Kohlhaas v. State, 518 P.3d 1095, 1102-03 (Alaska 2022).
Ballot Measure 2 also required greater disclosure of political funding sources, Ballot
Measure No. 2, §§ 1, 9, 17, SLA 2020, which this opinion does not discuss because those
provisions are not at issue here.
4 Former AS 15.25.010, .060 (2020) (amended Feb. 28, 2021).
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5
candidacy. Based on statutory guidelines, each party determined eligibility for voting
6
in its primary election. The candidate who received the most votes within each party's
7
primary election advanced to the general election. Additionally, an aspiring candidate
who was not a member of a political party could be nominated by petition to appear on
the general ballot.8
Following Ballot Measure 2, all candidates for an office run in one
"nonpartisan open primary,"9 10
regardless of their party affiliation or lack thereof. The
primary "does not serve to determine the nominee of a political party . . . but serves only
to narrow the number of candidates whose names will appear on the ballot at the general
11
election." Any qualified voter may vote in this primary "without limitations based on
5 Former AS 15.25.030 (2020) (amended Feb. 28, 2021) (requiring that the
candidate be "registered to vote as a member of the political party whose nomination is
being sought"). But see State v. Alaska Democratic Party, 426 P.3d 901, 909-15 (Alaska
2018) (holding the "party affiliation rule" violated the Alaska Constitution's free
association guarantee where party had amended bylaws to permit registered independent
voters to run as candidates in its primary elections).
6 Former AS 15.25.010, .014, .060 (2020) (amended Feb. 28, 2021).
7 Former AS 15.25.100 (2020) (repealed and reenacted Feb. 28, 2021).
8 Former AS 15.25.140 et seq. (2020) (repealed Feb. 28, 2021). To qualify,
a candidate needed to submit a petition with information about the candidate and collect
and submit a requisite number of signatures from registered voters. Former
AS 15.25.160-.180 (repealed Feb. 28, 2021). If successful, the candidate would be
placed on the ballot. Former AS 15.25.190 (repealed Feb. 28, 2021).
9 AS 15.15.025, .25.010.
10 AS 15.15.025, .25.030(a)(5).
11 AS 15.25.010.
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12
the political party or political group affiliation of either the voter or the candidate."
13
Voters in the primary vote for only one candidate for each open position. And for each
position, the four candidates who receive the greatest number of votes in the primary
14
advance to the general election.
2. Changes to general elections
Prior to Ballot Measure 2, general election ballots displayed the names of
15
primary election winners and the candidates nominated by petition.
Now "only the
names of the four candidates receiving the greatest number of votes for an office" during
16
Candidates who did not
the primary election will appear on the general election ballot.
finish in the top four, or who were not candidates in the primary election, may file to run
17
as write-in candidates.
Previously, each voter selected one candidate per office and the candidate
receiving the highest number of votes for the office was elected.18
Under the new
system, voters can still select one candidate per office, but they may also rank the
candidates in order of preference.19
The winner is then determined by tabulating those
12 Id.
13 Id.
14 AS 15.25.100(a).
15 Former AS 15.25.100 (2020) (repealed and reenacted Feb. 28, 2021);
former AS 15.25.190 (repealed Feb. 28, 2021).
16 Id.
17 AS 15.25.105.
18 Former AS 15.15.450 (repealed and reenacted Feb. 28, 2021).
19 See AS 15.15.350(c), (d).
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preferences in a series of rounds.20 The Division first must "tabulate each validly cast
21
ballot as one vote" for the voter's top-ranked candidate. If, after this round, one
22
candidate has over 50% of the votes, that candidate is elected. If not, the candidate
with the fewest number of votes is eliminated, and each ballot that ranks the eliminated
23
candidate first is counted for that ballot's second choice, if any. This process repeats
until one candidate receives more than half of the active ballots, or only two candidates
remain, and the candidate with more votes is elected.24
3. Withdrawing from general elections
A candidate who receives enough votes in the primary election to advance
to the general election ballot may withdraw before the election, but that candidate's
replacement on or removal from the ballot is subject to statutory and regulatory
restrictions. If a qualifying candidate withdraws "after the primary election and 64 or
more days before the general election, the vacancy shall be filled . . . by replacing the
withdrawn candidate with the candidate who received the fifth most votes in the primary
election."25
Otherwise, "the director shall place on the general election ballot only the
20 See AS 15.15.350-.360.
21 AS 15.15.350(d).
22 Id.
23 AS 15.15.350(d)(2). Ballots that rank an eliminated candidate but do not
rank a candidate in the next two lower ranking positions are moved to an inactive status
if the ranked candidate is eliminated. AS 15.15.350(f), (g)(2).
24 Id.
25 AS 15.25.100(c).
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26
names of the four candidates receiving the greatest number of votes for an office." The
Division has also adopted through regulation a 64-day replacement deadline for
removing a candidate's name from the ballot.27
4. Special elections
When a vacancy occurs in a federal congressional office, the governor must
28
call a special election by proclamation. The special primary election must "be held on
a date not less than 60, nor more than 90, days after the date the vacancy occurs."29 A
special general election must then take place "on the first Tuesday that is not a state
30
holiday occurring not less than 60 days after the special primary election."
Though these provisions set forth certain processes and requirements
26 AS 15.25.100(a).
27 6 Alaska Administrative Code (AAC) 25.210(b) (2022). This regulation
was recently amended. However, the 64-day withdrawal deadline was part of the prior
version and did not change in the update. Compare 6 AAC 25.210(b) (2022), with 6
AAC 25.210(b) (am. Feb. 28, 2014).
There is also a statutory and regulatory deadline for removing a candidate's
name from the primary election ballot. AS 15.25.055; 6 AAC 25.210(a).
Alaska Statute 15.25.055 provides that "[a] candidate's name must appear on the primary
election ballot unless notice of the withdrawal from the primary is received by the
director at least 52 days before the date of the primary election."
28 AS 15.40.140.
29 Id. The statute specifies alternative procedures for elections years "in
which a candidate for that office is not regularly elected," see id., but those provisions
are not applicable here because 2022 was also a regular election year for the office of
United States Representative.
30 AS 15.40.140. Ballot Measure 2 amended this provision, but the timeline
requirements were present prior to its adoption. See Ballot Measure 2, § 44, SLA 2020;
former AS 15.40.142 (2020).
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unique to special elections, special elections are largely governed by the same statutes
that govern regular elections. Alaska Statute 15.40.220 explains that unless otherwise
specified, "all provisions regarding the conduct of the primary election and general
election shall govern the conduct of the special primary election" and special general
31
election. The statute also provides that the general election provisions applying to
special elections include, among other specified provisions, those "provisions regarding
the duties, powers, rights, and obligations of the director, of other election officials, and
of municipalities."32
B. The 2022 Special Primary Election
When Representative Young died on March 18, 2022, the governor called
a special election, including both a primary and a general election, to select a
33
representative to serve the remainder of Representative Young's term. This special
election was Alaska's first ranked-choice voting election.
On March 22, the Division set a nd released "an initial, rough timeline of
dates based on a June 11 special primary," noting that those dates were subject to change.
The timeline set the candidacy filing deadline for April 1 ( 71 days prior to the special
primary election) and the deadline to withdraw from the special primary election for
April 4 (68 days before the special primary election). It set the "[t]arget certification
date" for June 25. The Division also "administratively set a withdrawal deadline of
Sunday, June 26 at noon, to allow candidates in the special primary election the chance
31 AS 15.40.220.
32 Id .
33 See AS 15.40.140; James Brooks & Nathaniel Herz, Alaska plans
unprecedented by-mail election in first step to replace Rep. Don Young, ANCHORAGE
DAILY NEWS, Mar. 22, 2022, https://www.adn.com/politics/2022/03/22/alaska-plans-
unprecedented-by-mail-election-in-first-step-to-replace-rep-don-young/.
-8- 7648
----------------------- Page 9-----------------------
to remove their name from the general election ballot after the primary results are
certified but before the general election ballots are finalized." This deadline was not
released with the other dates in the timeline.
The special primary election was held on June 11. The Division certified
the results on June 24, the same day this appeal was filed. The special general election
was scheduled for August 16, the same day as the regularly scheduled 2022 primary
election. Pursuant to AS 15.25.055, the withdrawal deadline for the regular primary
election was June 25 - 52 days prior to that election.
On June 21 - 56 days before the special general election and the regular
primary election - Dr. Al Gross filed his withdrawal from both elections. At that time,
preliminary special election results indicated that Dr. Gross had the third most votes in
the special primary election, followed by Mary Peltola with the fourth most votes and
Tara Sweeney with the fifth most votes.
That same day the Division received a letter from legal counsel for Nick
Begich, the candidate with the second most votes at the time. The letter argued that the
Division should not advance Sweeney to the special general election ballot in place of
Dr. Gross because it was not allowed under election laws. The Division responded by
letter, explaining that it would not do so because AS 15.25.100(c) only permits the fifth
place candidate to advance if a candidate withdraws 64 or more days before the general
election.
Sunny Guerin, Elizabeth Asisaun Toovak, and Vera Lincoln (collectively
Guerin) filed an emergency complaint in the superior court on June 23, challenging the
Division's decision not to place Sweeney on the special general election ballot. Guerin
argued that the Division's decision violated the statutes governing elections and "the
well-established and fiercely protected fundamental right of the voters to select their
political representatives." Alaskans for Nick Begich filed an unopposed motion to
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----------------------- Page 10-----------------------
intervene, which the superior court granted. Both Guerin and the Division filed motions
for summary judgment. Following a hearing, the superior court tentatively upheld the
Director's decision pending further motion work and oral argument. On June 24, after
additional motion work was filed and oral argument was held, the court i ssued a final
decision.
The court granted the Division's motion for summary judgment and denied
Guerin's motion for summary judgment. Citing AS 15.40.220, the court concluded that
the time window set by AS 15.25.100(c) for replacing a candidate in regular elections
applies to special elections as well. Therefore, because Dr. Gross's withdrawal was
outside that time window, the court determined that his withdrawal was too late for the
Division to replace his name on the special general election ballot with the name of the
candidate who received the fifth most votes.
Guerin immediately appealed, and in light of the upcoming election, we
expedited our normal briefing process. On June 25, we issued a summary disposition
order affirming the superior court's decision, and noted that an explanatory opinion
would follow. This opinion explains our reasoning.
III. STANDARDS OF REVIEW
We "review[] a grant of summary judgment de novo."34
We will "uphold
a grant of summary judgment if there are no genuine issues of material fact and the
moving party is entitled to judgment as a matter of law."35
The parties agree that there
are no genuine issues of material fact. Therefore, summary judgment is appropriate for
either side, pending our review and statutory interpretation.
"We review an agency interpretation of statutory terms using one of two
34 DeNardo v. Mun. of Anchorage , 105 P.3d 136, 139 (Alaska 2005).
35 Id.
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36
standards: reasonable basis or independent judgment." If the interpretation "requires
resolution of policy questions within the agency's area of expertise, the reasonable basis
37
standard applies." If "the agency's specialized knowledge and experience are not
particularly relevant to the issue at hand," as is the case here, "we substitute our own
independent judgment."38 We will "adopt[] the 'rule of law that is most persuasive in
light of precedent, reason, and policy.' "39
"Questions of constitutional . . . interpretation, including the
constitutionality of a statute, are questions of law to which we apply our independent
judgment."40
IV. DISCUSSION
A. The 64-Day Replacement Deadline Applies To Special Elections.
The main statutory disagreement between the parties is to what extent the
provisions of AS 15.25.100(c) apply to special general elections.41 Though the text of
36 PLC, LLC v. State, 484 P.3d 572, 577 (Alaska 2021).
37 Id.
38 Id. (quoting Marathon Oil Co. v. State, Dep't of Nat. Res., 254 P.3d 1078,
1082 (Alaska 2011)).
39 Mat-Su Valley Med. Ctr., LLC v. Bolinder, 427 P.3d 754, 762-63 (Alaska
2018) (quoting State v. Ketchikan Gateway Borough, 366 P.3d 86, 90 (Alaska 2016)).
40 Ketchikan Gateway Borough, 366 P.3d at 90.
41 AS 15.25.100(c) provides:
Except [when the candidate is a gubernatorial or lieutenant
gubernatorial candidate], if a candidate nominated at the
primary election dies, withdraws, resigns, becomes
disqualified from holding office for which the candidate is
nominated, or is certified as being incapacitated in the
(continued...)
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AS 15.25.100 refers to a "general election" and does not reference special general
elections, all parties agree that at least some provisions in AS 15.25.100(c) apply to
special elections. The parties both cite AS 15.40.220 in support of this assertion.
Alaska Statute 15.40.220 indicates that "[u]nless specifically provided
otherwise, all provisions regarding the conduct of the primary election and general
election shall govern the conduct of the special primary election and special election of
42
the . . . United States representative." Both parties contend that "the provision
pertaining to . . . candidate replacement" applies to special elections because no other
provision governs the candidate replacement process.
The parties disagree, however, on whether the 64-day replacement deadline
applies to special elections. The Division argues that AS 15.25.100(c) applies in full,
including the 64-day replacement deadline applicable after a candidate's withdrawal. It
argues that Title 15 does not otherwise specifically provide for the timing of a
candidate's withdrawal and replacement on the ballot for special elections, and
AS 15.40.220 thus directs the Division to apply the 64-day deadline. Guerin argues that
statutory provisions setting out the timing of special elections conflict with the 64-day
replacement deadline, and therefore the deadline does not apply.
When interpreting statutes, "we use a 'sliding-scale approach' to interpret
the language. '[T]he plainer the statutory language is, the more convincing the evidence
41 (...continued)
manner prescribed by this section after the primary election
and 64 or more days before the general election, the vacancy
shall be filled by the director by replacing the withdrawn
candidate with the candidate who received the fifth most
votes in the primary election.
42 AS 15.40.220. Ballot Measure 2 slightly amended this statute to expressly
include primary elections. Ballot Measure 2, § 49, SLA 2020.
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43
of contrary legislative purpose or intent must be.' " If the language is "clear and
unambiguous," then "the party asserting a different meaning bears a correspondingly
44
heavy burden of demonstrating contrary legislative intent." And "[w]hen a
statute . . . is part of a larger framework or regulatory scheme, [it] must be interpreted in
light of the other portions of the regulatory whole."45
1. The 64-day replacement deadline is among the type of
provisions AS 15.40.220 contemplates applying to special
elections.
Alaska Statute 15.40.220 provides:
Unless specifically provided otherwise, all provisions
regarding the conduct of the primary election and general
election shall govern the conduct of the special primary
election and special election of the United States senator or
United States representative, including provisions concerning
voter qualifications; provisions regarding the duties, powers,
rights, and obligations of the director, of other election
officials, and of municipalities; provision for notification of
the election; provision for payment of election expenses;
provisions regarding employees being allowed time from
work to vote; provisions for the counting, reviewing, and
43 State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska
2019) (footnote omitted) (first quoting Ward v. State, Dep't of Pub. Safety, 288 P.3d 94,
98 (Alaska 2012); and then quoting State v. Fyfe, 370 P.3d 1092, 1095 (Alaska 2016)).
44 Id. (quoting Fyfe, 370 P.3d at 1095).
45 Alaska Ass'n of Naturopathic Physicians v. State, Dep't of Com., Cmty. &
Econ. Dev., 414 P.3d 630, 636 (Alaska 2018) (second and third alterations in original)
(quoting Alaska Airlines, Inc. v. Darrow, 403 P.3d 1116, 1127 (Alaska 2017)).
-13- 7648
----------------------- Page 14-----------------------
certification of returns; provisions for the determination of
the votes and of recounts, contests, and appeal; and provision
for absentee voting.[46]
The legislature has dictated that "[w]hen the words 'includes' or 'including'
are used in a law, they shall be construed as though followed by the phrase 'but not
limited to.' "47 It has further instructed us that "[t]echnical words and phrases . . . shall
be construed according to [their] peculiar and appropriate meaning."48
We interpret this expansive list of provisions, and the mandate that "all
provisions" apply to special elections, to mean that the 64-day replacement deadline
applies to special elections. To start, AS 15.25.100 certainly falls within the ambit of "all
provisions," given the inclusive framing of the list and expansive characterization.
Additionally, AS 15.25.100 is within the applicable provisions specifically enumerated
in AS 15.40.220. The Division argues that "provisions regarding the duties, powers,
rights, and obligations of the director, of other election officials, and of municipalities"
include those listed in AS 15.25.100(a) and (c). We agree.
Though the word "duties" is not defined in the statute, it carries a particular
legal significance, and we construe it according to its peculiar and appropriate meaning.
Black's Law Dictionary defines duty as "[a] legal obligation that is owed or due to
another and that needs to be satisfied; that which one is bound to do, and for which
somebody else has a corresponding right."49 Alaska Statutes 15.25.100(a) and (c)
provide that "the director shall place on the general election ballot only the names of the
46 AS 15.40.220.
47 AS 01.10.040(b).
48 AS 01.10.040(a).
49 Duty, BLACK 'S LAW DICTIONARY (11th ed. 2019).
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four candidates . . ." and that if a candidate withdraws "after the primary election and 64
50
or more days before the general election, the vacancy shall be filled by the director."
51
The use of "shall" makes these actions mandatory, not discretionary. Thus, the director
has a duty to follow the provisions in AS 15.25.100(a) and (c). This places AS
15.25.100's 64-day deadline directly within a "provision[] regarding the duties . . . of the
director," and AS 15.40.220 subsequently makes any such provision applicable at a
special election.52
Given that AS 15.25.100 is one of the sections that explicitly applies to
special elections per AS 15.40.220 and is also implicitly included in the statute's
expansive language, the remaining issue is whether Title 15 specifically provides some
other withdrawal deadline for special elections.53
2. Statutory deadlines specific to special primary elections do not
provide a different candidate replacement deadline.
Guerin argues that the 64-day replacement deadline in AS 15.25.100(c)
cannot apply to special elections because AS 15.40.140 sets out specific timing for when
special elections must occur once triggered. Guerin further asserts that because
AS 15.40.140 contains a timeline, all general election time requirements are therefore
inapplicable to special elections because they have been "specifically provided
50 AS 15.25.100(a), (c) (emphasis added).
51 Fowler v. City of Anchorage , 583 P.2d 817, 820 (Alaska 1978) ("Unless
the context otherwise indicates, the use of the word 'shall' denotes a mandatory intent.").
52 AS 15.40.220.
53 See id. (stating that all general election statutes apply to special elections
unless "specifically provided otherwise").
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54
otherwise." Guerin points to the Division's flexibility with certain other deadlines in
the special election as further support.
We disagree with such a broad interpretation of the phrase "specifically
provided otherwise." As it is possible to read AS 15.40.140 and AS 15.25.100(c) in
harmony with one another, we reject Guerin's argument.
"When we engage in statutory construction, we must, whenever possible,
interpret each part or section of a statute with every other part or section, so as to create
55
a harmonious whole." "Two potentially conflicting statutes . . . must be interpreted
56
'with a view toward reconciling conflict . . . .' " But we will not rewrite statutes to
reconcile them; "[t]he goal of reconciling conflict must thus give way when harmony
between potentially conflicting provisions can be achieved only at the price of an
57 We affirm that election "deadlines are
interpretation at odds with statutory purpose."
mandatory, and therefore substantial compliance is not sufficient, absent substantial
confusion or 'impossibility.' "58
54 AS 15.40.220. Guerin fails to point to any source, however, that would
inform the Division of what deadlines it should use. This, conceivably, could mean that
according to Guerin's theory the Division has complete discretion during special
elections to set whatever deadlines it sees fit.
55 State, Dep't of Com., Cmty. & Econ. Dev., Div. of Ins. v. Progressive Cas.
Ins. Co., 165 P.3d 624, 629 (Alaska 2007) (quotation omitted) (quoting Kodiak Island
Borough v. Exxon Corp., 991 P.2d 757, 761 (Alaska 1999)).
56 Allen v. Alaska Oil & Gas Conservation Comm'n, 147 P.3d 664, 668
(Alaska 2006) (quoting City of Anchorage v. Scavenius , 539 P.2d 1169, 1174 (Alaska
1975)).
57 Progressive Ins. Co. v. Simmons, 953 P.2d 510, 517 (Alaska 1998).
58 State v. Marshall, 633 P.2d 227, 235 (Alaska 1981) (footnote omitted)
(continued...)
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It is possible to apply and reconcile the mandatory deadlines in
AS 15.25.100(c) with AS 15.40.140 without rewriting them or creating a meaning at
odds with the statutory purpose. Alaska Statute 15.40.140 discusses one basic timeline:
when a special primary election and subsequent special general election shall be held
after a vacancy occurs. It does not make any mention of candidates withdrawing or the
Division advancing candidates from the special primary to special general election.
Alaska Statute 15.25.100(c) in turn provides for when a candidate can withdraw and be
replaced. Nothing prevents the two statutes from working together seamlessly.
It is true that in some cases candidates may be unable to withdraw or be
59
replaced after the special primary election. But determining withdrawal and
58 (...continued)
(quoting Silides v. Thomas, 559 P.2d 80, 86 (Alaska 1977)).
59 Because the special general election must normally be held on the first non-
holiday Tuesday 60 days or more after the special primary election, the normal range of
time between the special primary and special general elections would be 60 to 66 days
if no holiday is involved. The maximum range would increase to 73 days if a Tuesday
holiday were involved. For example, if the 60th day after the special primary election
was a Wednesday, and the following Tuesday was a holiday, then the range between
primary and general election would be 73 days. In the unlikely event that the 60th day
after the special primary election fell on Christmas Day on a Tuesday, the maximum
range would be 74 days because New Year's Day, another holiday, would be on the
following Tuesday.
Regardless of the number of days between the special primary and special
general elections, nothing prevents the 64-day deadline from applying. If the special
general election were held 60 to 63 days after the special primary election, then
candidates would not be able to withdraw or be replaced between elections. If the
special general election were held 64 or more days after the special primary election, the
candidate would have a short window between elections to withdraw and be replaced.
The statute clearly states that if a candidate withdraws after the special primary election
and 64 or more days before the special general election, then that candidate can be
(continued...)
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replacement requirements is the job of the legislature, and it is not our place to comment
on policy decisions. The fact that replacement may not be possible in some
circumstances does not mean that the 64-day replacement deadline is impossible to
comply with, inherently inapplicable, or otherwise provided for. We interpret the
statutes as written, and these statutes create requirements that sometimes will allow
replacement and sometimes not.
We agree with the Division that "AS 15.40.140 provides no alternative to
the 64-day replacement deadline in AS 15.25.100(c). And Guerin identifies no other
source of a candidate replacement deadline." The clear language of AS 15.40.220
requires the general rules to apply "unless specifically provided otherwise." We do not
see any other statute that specifically provides for a deadline other than the generally
applicable 64-day deadline.
3. Ballot Measure 2 evinces the intent to apply the 64-day
replacement deadline to special elections.
As discussed above, we apply a sliding-scale approach to statutory
interpretation.60 Interpreting statutes enacted pursuant to ballot measures requires a
slightly different process than interpreting statutes passed by the legislature.61 When
construing a statute, we take "into account the plain meaning and purpose of the law as
59 (...continued)
replaced. The wording requires both criteria to be true, and it is not in our purview to
address the wisdom of these requirements. They are clear, and nothing prevents their
application.
60 State v. Planned Parenthood of the Great Nw., 436 P.3d 984, 992 (Alaska
2019).
61 Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 192-93
(Alaska 2007).
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62
well as the intent of the drafters." Such a construction might include looking at
63
statements by sponsors of the bill, for instance. But when reviewing a ballot measure,
"we attempt to place ourselves in the position of the voters at the time the initiative was
placed on the ballot, and we try to interpret the initiative using the tools available to the
citizens of this state at that time."64
Thus, we will consider only "materials that Alaska
65
voters had available and would have relied upon" when voting on the measure. To that
end, we may consider "any published arguments made in support or opposition to
determine what meaning voters may have attached to the initiative," but we refuse to
"accord special weight to the stated intentions of any individual sponsor that are not
66
reflected in the content of the legislation itself." Therefore, we "cannot rely on
affidavits of the sponsors' intent" when determining the purpose of the ballot measure.67
The voters had access to the full text of Ballot Measure 2 when they
approved it, and the statute as a whole provides context for its intent. Other provisions
of Ballot Measure 2 suggest that voters anticipated the 64-day replacement deadline
would apply to special elections. For example, the Division is directed by statute to
68
prepare and publish an informational pamphlet for voters under certain circumstances.
62 Native Vill. of Elim v. State, 990 P.2d 1, 5 (Alaska 1999).
63 Kritz, 170 P.3d at 193.
64 Id .
65 Id.
66 Id.
67 Id.
68 AS 15.58.010. A pamphlet is only required in a special primary election
if "a ballot proposition is scheduled to appear on the ballot." The Division did not
(continued...)
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Ballot Measure 2 provides that the pamphlet must notify voters of the 64-day
replacement deadline by including the following statement:
In each race, you may vote for any candidate listed. The four
candidates who receive the most votes for a state office or
United States senator will advance to the special election.
However, if, after the special primary election and 64 days or
more before the special election, one of the four candidates
who received the most votes for a state office or United States
senator at the primary election dies, withdraws, resigns, is
disqualified, or is certified as incapacitated, the candidate
who received the fifth most votes for the office will advance
to the general election.[69]
Had the Division been required to prepare a pamphlet for this special
election, it would have required this statement. Requiring this notification to voters
during special primary elections evinces the intent of the drafters and the voters that
adopted Ballot Measure 2 that the 64-day replacement deadline applies to special
70
elections.
68 (...continued)
prepare a pamphlet for this special primary election, nor was it required to. But the
related statutory provisions, regarding the information to be published and provided to
voters in a pamphlet, remains useful in discerning the intent of the drafters of Ballot
Measure 2 and of the voters who approved it.
69 AS 15.58.020(c)(2) (emphasis added).
70 The statute does specify that it applies to elections "for a state office or
United States senator" and fails to include a United States representative.
AS 15.58.020(c)(2). The Division, citing AS 15.58.020(a)(13) and (c)(1), which use
similar language but include "United States representative," argues that the omission of
"representative" in AS 15.58.020(c)(2) was a "drafting error rather than an intentional
choice." We agree that the omission of "United States representative" in
AS 15.58.020(c)(2) was likely a drafting error. And although "[w]hen the legislature
makes a drafting error, we do not rewrite the statute," AS 15.58.020(c)(2) remains
(continued...)
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By contrast, Guerin points not to the language of the statute or information
available to the voters, but rather draws support from an affidavit of one sponsor of the
campaign reform measure that eventually became Ballot Measure 2. "But we will not
accord special weight to the stated intentions of any individual sponsor that are not
71
reflected in the content of the legislation itself." The statements in the sponsor's
affidavit do not reflect Ballot Measure 2's relevant statutory language and are not
72
grounded in material that was available to the voters. We cannot, therefore, derive
Ballot Measure 2's intent from the sponsor's affidavit. Rather, we conclude that the
language of the Ballot Measure itself anticipates application of AS 15.25.100's 64-day
replacement deadline to special elections.
B. The Division Failed To Strictly Comply With Election Law Deadlines.
Guerin argues that the Division's failure to abide by other statutory
deadlines that are facially applicable to regular primary or regular general elections
shows the Division has discretion in setting deadlines.
70 (...continued)
indicative of the overall intent of Ballot Measure 2 as applied to special elections
generally. Alaska Airlines, Inc. v. Darrow, 403 P.3d 1116, 1131 (Alaska 2017).
71 Kritz, 170 P.3d at 193.
72 For instance, the sponsor states in his affidavit that the "candidate-
replacement deadline provided in Ballot Measure 2 for regular general elections was
intended to harmonize with the candidate withdrawal deadlines . . . applicable to regular
general elections as necessary to allow a fifth place candidate to be swapped in should
any top four finisher withdraw before that deadline." The sponsor further states that the
Division "is misapplying that deadline . . . in a manner that is completely contrary to the
intent of Ballot Measure 2," stating that the measure "could not contain dates for every
permutation or possible deadline that could arise as a result of a need for a special
election." But none of these assertions were included in the language of Ballot Measure
2 or in the statements of support or opposition.
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It is true that we give greater weight to an agency's interpretation of a
statute when it is "longstanding and continuous."73 However, this tenet merely directs
74
us to "apply a more deferential standard of review." It does not mandate a rejection of
an agency's interpretation that shows inconsistencies over time or across similar statutes
or regulations.
Though the parties did not raise the issue of Dr. Gross's name being
removed from the special general election ballot, we are troubled by the Division's
apparent failure to abide by the statute and its own regulations in this regard. Under our
interpretation of AS 15.25.100, unless a candidate withdraws "after the primary election
and 64 or more days before the general election," the Division "shall place on the general
election ballot only the names of the four candidates receiving the greatest n umber of
75 This language makes clear that, had the Division strictly followed
votes for an office."
the law, Dr. Gross's name should have remained on the special general election ballot.
Similarly, under 6 AAC 25.210(b), the 64-dayreplacement deadline applies
76 Abiding
to removing a withdrawn candidate's name from the general election ballot.
by this regulation would have required the Division to leave Dr. Gross's name on the
73 Alaska Jud. Council v. Kruse, 331 P.3d 375, 381 (Alaska 2014); see also
Vail v. Coffman Eng'rs, Inc., 778 P.2d 211, 213 (Alaska 1989) ("Even under [the
independent judgment] standard, we may give some weight to a longstanding and
consistent administrative interpretation of the statute.").
74 State, Dep't of Nat. Res. v. Alaska Riverways, Inc., 232 P.3d 1203, 1216
n.67 (Alaska 2010).
75 AS 15.25.100.
76 That regulation states: "The name of a candidate . . . will appear on the
general election ballot . . . unless . . . the candidate's withdrawal . . . is received . . . not
later than close of business on the 64th day before the . . . general election." 6 AAC
25.210(b) (2022).
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ballot for the special general election. The Division acknowledged this regulation in a
footnote, but argued that "[t]his deadline is not in statute, and including Dr. Gross on the
ballot given his withdrawal would only confuse voters in this election and harm the
public interest." Though the Division may be correct that including Dr. Gross's name
would be confusing, such an assertion alone fails to justify deviation from an election
77
statute or regulation. Furthermore, the Division's assertion that t he rule was "not in
statute" is incorrect. Alaska Statute 15.25.100 provides unambiguous direction to the
director on what names "shall" appear on the general election ballot.
We also note that, in setting the special primary withdrawal deadline of
April 4, the Division may have violated the statutory withdrawal deadline for the special
primary election. Alaska Statute 15.25.055 provides that "[a] candidate's name must
appear on the primary election ballot unless notice of the withdrawal from the primary
is received by the director at least 52 days before the date of the primary election." The
Division set a withdrawal deadline of April 4, which was 69 days, not 52 days, prior to
78 However, as the parties did not raise or argue this point,
the special primary election.
we need not resolve it.79
We are concerned by the Division's inconsistency in applying the above
election statutes and regulations. We remind the Division that election "deadlines are
77 Cf. Vogler v. Miller, 651 P.2d 1, 5-6 (Alaska 1982) (noting that in absence
of evidence of voter confusion, increasing restrictions on ballot access to reduce voter
confusion was improper).
78 One possible interpretation is that the statute establishes the minimum
number of days to permit candidates to withdraw, while giving the Division discretion
to set a longer deadline. We express no opinion on the validity of this interpretation.
79 See Trs. for Alaska v. State, 736 P.2d 324, 327 (Alaska 1987) (describing
"the principle that courts should not resolve abstract questions or issue advisory
opinions").
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mandatory, and therefore substantial compliance is not sufficient, absent substantial
80
confusion or 'impossibility.' " Unless the Division can articulate substantial confusion
or impossibility, it must apply all statutorily mandated election deadlines as written in
the statute.
With this said, the parties did not directly challenge the above
inconsistencies in this matter. And contrary to Guerin's argument, the inconsistencies
do not show that the Division has discretion nor do they justify selective application of
the 64-day deadline outlined in AS 15.25.100(c). Failure to apply the law in one
instance does not justify disregarding the law in another.
C. The Decision Not To Put Sweeney's Name On The General Election
Ballot Does Not Violate Guerin's Constitutional Rights.
As an initial matter, we note that one aspect of Guerin's statutory argument
appears to undermine her constitutional challenge. Guerin argues that because the
Division has some discretion to set the day for the special primary election,81
it therefore
also has the discretion to set other associated special election deadlines, and should, in
this case, have set a different deadline so that the fifth place finisher could be substituted.
As discussed above, we disagree that the Division had discretion to ignore the 64-day
replacement deadline. But assuming Guerin's argument were correct, it necessarily then
follows that Guerin believes the Division can set a replacement deadline. And if Guerin
believes the Division can properly set a deadline, that also means Guerin believes a
deadline, in and of itself, is not constitutionally barred.
80 State v. Marshall, 633 P.2d 227, 235 (Alaska 1981) (footnote omitted)
(quoting Silides v. Thomas, 559 P.2d 80, 86 (Alaska 1977)).
81 AS 15.40.140 allows the Division to set the special primary election on a
day "not less than 60, nor more than 90, days after the date the vacancy occurs." This
gives the Division some discretion on the exact day the special primary election is held.
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Guerin nevertheless argues that application of the 64-day deadline violated
voters' rights to select their chosen candidate and that "[t]he gravity of the
violation . . . triggers strict scrutiny" review. "Although voting is unquestionably a
82
fundamental right, not every burden on the right to vote is subject to strict scrutiny."
And "the mere fact that a State's system 'creates barriers . . . tending to limit the field of
candidates from which voters might choose . . . does not of itself compel close
83
scrutiny.' " Rather, we turn to our three-part balancing test to assess the propriety of
84
such a statute.
When presented with a constitutional challenge to an election law, we "first
85
determine whether the claimant has in fact asserted a constitutionally protected right."
If the claimant has done so, we apply "a flexible test" balancing three factors: "the
character and magnitude of the asserted injury to the rights"; "the precise interests put
forward by the State as justifications for the burden imposed by its rule"; and "the fit
86 "[A]s the burden on
between the challenged legislation and the state's interests."
constitutionally protected rights becomes more severe, the government interest must be
more compelling and the fit between the challenged legislation and the state's interest
82 Sonneman v. State, 969 P.2d 632, 637 (Alaska 1998).
83 O'Callaghan v. State, 914 P.2d 1250, 1254 (Alaska 1996) (alterations in
original) (quoting Burdick v. Takushi, 504 U.S. 428, 433-34 (1992)).
84 State, Div. of Elections v. Green Party of Alaska , 118 P.3d 1054, 1061
(Alaska 2005).
85 Id. (quoting O'Callaghan, 914 P.2d at 1254).
86 Id.
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87
must be closer." When voters' and candidates' First and Fourteenth Amendment
"rights are subjected to 'severe' restrictions, the regulation must be 'narrowly drawn to
88
advance a state interest of compelling importance.' " However, "when a state election
law provision imposes only 'reasonable, nondiscriminatory restrictions' upon the First
and Fourteenth Amendment rights of voters, 'the State's important regulatory interests
are generally sufficient to justify' the restrictions."89
We recognize that Guerin has asserted a constitutionally protected right, as
restrictions on ballot access implicate both rights of free association and the right to
90
vote. As we have previously noted, "[r]estrictions on ballot access impinge not only
91
on the rights of the potential candidates, but on those of the voters as well." The right
to vote is integral to the functioning of our democracy: "[t]he right of the citizen to cast
[a] ballot and thus participate in the selection of those who control [the] government is
one of the fundamental prerogatives of citizenship and should not be impaired or
92
destroyed by strained statutory constructions."
We now turn to the three-part balancing test, and first examine "the
87 Id.
88 Sonneman v. State, 969 P.2d 632, 638 (quoting O'Callaghan, 914 P.2d at
1254).
89 Id. (quoting O'Callaghan, 914 P.2d at 1254).
90 Vogler v. Miller, 651 P.2d 1, 3 (Alaska 1982) (citing Williams v. Rhodes,
393 U.S. 23, 30 (1968)).
91 Id.
92 Carr v. Thomas, 586 P.2d 622, 626 (Alaska 1978) (quoting Sanchez v.
Bravo, 251 S.W.2d 935, 938 (Tex. Civ. App. 1952)).
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93
character and magnitude of the asserted injury to the rights." We hold that the injury
is not substantial in this instance.
In Vogler v. Miller we held that a statute requiring independent candidates
and those from smaller political parties to submit petitions including a number of
signatures equivalent "to 3% of the vote cast at the last election" unconstitutionally
94
infringed on association and voting rights. We emphasized that "[c]ompetition in ideas
and governmental policies is at the core of our electoral process and of the First
Amendment freedoms."95 And, pointing to federal ballot-access cases, we determined
that "the state must show a compelling interest in order to justify infringements" upon
96
ballot access.
But the application of a 64-day withdrawal and replacement deadline is not
analogous to the statute challenged in Vogler. In Vogler our concern about ballot access
was rooted in the principle that "[t]he right to form a party for the advancement of
political goals means little if a party can be kept off the election ballot and thus denied
97 We were most concerned that "the state ha[d]
an equal opportunity to win votes."
effectively eliminated a political party's access to the ballot."98
93 State, Div. of Elections v. Green Party of Alaska , 118 P.3d 1054, 1059
(Alaska 2005) (quoting O'Callaghan, 914 P.2d at 1254).
94 Vogler, 651 P.2d at 3. Candidates f rom political parties that had "polled
10% or more of the vote at the preceding gubernatorial election" only needed to file a
declaration of candidacy and pay a filing fee. Id.
95 Id. at 3.
96 Id.
97 Id. at 5 (quoting Williams v. Rhodes, 393 U.S. 23, 31 (1968)).
98 Id.
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There is a significant difference between restricting altogether a candidate's
ability to run in an election and requiring a candidate to demonstrate some substantial
support before advancing to the general election ballot, as the United States Supreme
99 In that case, the Court upheld
Court explained in Munro v. Socialist Workers Party .
Washington's blanket primary against a challenge by a candidate who did not advance
to the general election ballot because he failed to obtain sufficient support during the
primary election.100
It reasoned that "[i]t can hardly be said that Washington's voters are
denied freedom of association because they must channel their expressive activity into
101
a campaign at the primary as opposed to the general election." And "because
Washington affords a minor-party candidate easy access to the primary election ballot,"
it determined that the "effect on constitutional rights is slight."102
Though "Alaska's constitution is more protective of rights and liberties than
is the United States Constitution,"103 we find Munro instructive given the similar facts
and access-related arguments addressed in that case. Here, as in Munro, any qualified
candidate may appear on the special primary election ballot provided the candidate files
a timely declaration of candidacy.104 This ease of access to the primary election ballot
99 479 U.S. 189, 197-99 (1986).
100 Id. at 192-93.
101 Id. at 199.
102 Id.
103 State, Div. of Elections v. Green Party of Alaska , 118 P.3d 1054, 1060
(Alaska 2005).
104 AS 15.25.030.
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105
entirely avoids the problems that concerned us in Vogler. Guerin had a full
opportunity to associate with and vote for the candidate of her choice. Therefore, any
injury to her rights caused by the later application of the advancement or withdrawal
process was slight, if it existed at all.
Furthermore, Guerin's particular objection is not to the broader structure
of the primary system and advancement process, but to the specific application of the 64-
day candidate replacement deadline in special elections. The withdrawal deadline
imposes only a minute restriction on Guerin's associational rights and right to vote. It
106
is a "reasonable, nondiscriminatory restriction" on constitutional rights. It does not
107
deny any particular party or person an "equal opportunity to win votes." Instead, it
restricts only the permissible timing for the replacement of a withdrawn candidate's
name. The fifth-most vote-getter, after all, had an equal opportunity to gain as many
votes as the top four, and failed to do so. The 64-day withdrawal deadline only impacts
a fifth-place candidate and their associated voters if a candidate with more votes
withdraws.
Having established that the injury to the rights asserted is slight, we now
turn to the second and third factors in the analysis: the justification for the restriction and
the fit between the restriction and the justification. 108 The State argues that any slight
burden on constitutional rights is justified by "important regulatory interests in the
orderly, timely performance of its duties to run elections." We agree.
105 Vogler v. Miller, 651 P.2d 1, 5 (Alaska 1982).
106 Sonneman v. State, 969 P.2d 632, 638 (quoting O'Callaghan v. State, 914
P.2d 1250, 1254 (Alaska 1996)).
107 Vogler, 651 P.2d at 5 (quoting Williams v. Rhodes, 393 U.S. 23, 31 (1968)).
108 Green Party of Alaska , 118 P.3d at 1061.
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As recognized in Munro, "the State's interest in preserving the integrity of
the electoral process and in regulating the number of candidates on the ballot [is]
109
compelling." The Munro Court further reasoned that legislatures "should be permitted
to respond to potential deficiencies in the electoral process with foresight rather than
reactively, provided that the response is reasonable and does not significantly impinge
110
on constitutionally protected rights."
Though in some cases generalized interests such
as avoiding ballot overcrowding and "holding orderly and efficient primary elections"
111
on associational rights, here
may be "too abstract to justify a substantial restriction"
these interests are sufficient to justify the minor restriction that AS 15.25.100 imposes.
We conclude that the Division's adherence to AS 15.25.100's 64-day
replacement deadline posed no violation of Guerin's constitutional rights.
V. CONCLUSION
Because the superior court correctly construed the relevant election statutes
in applying the 64-day replacement deadline, and because adherence to the deadlines at
issue did not violate Guerin's constitutional rights, we AFFIRM the superior court's
decision granting summary judgment in favor of the Division.
109 479 U.S. 189, 194 (1986).
110 Id. at 195-96. We adopted this reasoning in Green Party of Alaska , 118
P.3d at 1065-66.
111 Green Party of Alaska , 118 P.3d at 1066.
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