Judge recommends Supreme Court should uphold House District 1 recount results

Official observers representing House District 1 candidates Bart LeBon and Kathryn Dodge watch the recount process at the Alaska Division of Elections office in Juneau on Nov. 30, 2018. (Photo by Annie Bartholomew/KTOO)

A Superior Court judge has recommended that the Alaska Supreme Court stick by the findings of the Alaska Division of Elections that made Bart LeBon the winner of the House District 1 race by one vote.

Judge Eric Aarseth was appointed to be a special master to review the case and make recommendations to the Supreme Court, which will hear the case on Jan. 4. He was expected to deliver a report on Friday.

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

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

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

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

The Dodge side challenged a questioned ballot from a voter whose address changed when he registered for the Alaska Permanent Fund dividend last year. Under the new law, registering for the permanent fund dividend automatically updates one’s voter registration address. The voter, unaware that his voting address had changed, showed up to vote in District 1 but was not on the roster. He voted for Dodge anyway, but election officials later rejected his ballot.

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

The judge quoted the statute requiring voters to be signed up in 30 days before the election. He also noted that voters are assumed to understand that their PFD registration will register them to vote at the address they provide.

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

Aarseth kept the scope of the hearing quite narrow, using only evidence and testimony about the Nov. 30 recount of the House District 1 ballots, rather than the election itself.

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

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

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

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

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

Aarseth will release his written report Friday, recommending that all the rulings by the Division of Elections be upheld by the Supreme Court. If they do so, the vote count will remain the same, with LeBon winning by one vote. The Supreme Court hears arguments in the case on Jan. 4.

Correction: An earlier version of this story misspelled the special master’s last name. It’s Aarseth, not Arseth. 

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