A judge on Thursday reversed the outcome of the Democratic primary for the House district that includes the North Slope and Northwest Arctic boroughs.
Superior Court Judge Andrew Guidi ordered the Division of Elections to certify that incumbent Benjamin Nageak of Barrow won the primary over Dean Westlake of Kotzebue by a two-vote margin.
The outcome of the primary could determine who organizes a House majority. While both are Democrats, Nageak caucuses with the Republican-led House majority, and Westlake said he’ll caucus with the Democrats.
The decision reverses the outcome of a recount, which had Westlake winning by eight votes.
Nageak, who is the co-chairman of the House Resources Committee, expressed relief.
“I’m pleased by the court’s result and hopeful it will be sustained during the appeal to the Supreme Court,” Nageak said. “I’m sure that’s where it’s going to go. And I hope this decision will result in improvement of training.”
The outcome hinges on the Kobuk River village of Shungnak, where local election officials wrongly allowed 50 voters to cast ballots in both the Republican primary and in the “ADL” primary for the Alaska Independence, Democratic and Libertarian parties.
Westlake led Nageak in Shungnak, 47 votes to three, after the recount but before the decision.
Judge Guidi decided to subtract votes, based on the average number of Shungnak residents who voted in Republican primaries over the past 10 years.
Guidi subtracted 12 votes based on the idea that they would have voted Republican. He took away 11 votes from Westlake in Shungnak, as well as one from Nageak. He also decided that election officials wrongly allowed both candidates to gain one vote from Kivalina in the recount.
Westlake, who was out fishing, couldn’t be reached for comment.
His lawyer Thomas Amodio said no votes should have been subtracted.
“In our view, all of them qualified,” he said. “None should be disenfranchised. There’s no evidence that any of them would have voted in anything but the ADL primary. Especially with a very contested, close race.”
Amodio argues that the competitive Democratic House race gave Republican voters more of a reason to cross over in the primary than they had in previous years, when there were more competitive Republican statewide races.
Amodio says Guidi’s decision effectively disenfranchises voters in a village that’s 95 percent Alaska Native.
“By his calculations, he’s casting those aside,” he said. “You know, he’s the judge. He gets to decide that. Now, the Alaska Supreme Court gets to decide whether he was right or wrong.”
Under Guidi’s decision, the final outcome would be 815 votes for Nageak, 813 for Westlake.
The winner will take the seat, since there are no general-election opponents.
Nageak said the small margin reinforces the importance of every voter.
“Every vote counts,” he said. “We’ve been saying that for years. And it was borne out.”
Lt. Gov. Byron Mallott, who oversees elections, said in a statement that officials are “disappointed that the Superior Court ruled that a poll worker error in Shungnak was sufficient to change the outcome” of the primary.
He added that they want “absolute clarity” on the issues involved and will follow whatever measures the Supreme Court deems appropriate to secure a fair election.
Division of Elections Director Josie Bahnke has said the division will use this year’s primary experience to improve how the state trains election workers.
The Supreme Court asked lawyers for Nageak, Westlake and the state to file briefs by Saturday, Oct. 8.
Oral arguments will be Wednesday, Oct. 12.
And the Court is expected to rule by Oct. 14, to give elections officials enough time to distribute ballots for the Nov. 8 election.
