Stealing an Alaska Election, Part 1: Counting Ballots

On November 10th, we gathered at a warehouse on the outskirts of Juneau to review more than one hundred thousand write-in ballots. The Division of Elections had initially set the count for November 18th, but the Lt. Governor suddenly moved the date up eight days, causing serious logistical challenges for the review team. We put more than a dozen volunteers on the ground, but when we arrived, found there were 15 review stations. Our organizers were still making contacts when the count began. We flew in more folks from Fairbanks that day.

There were other more technical challenges relating to our preparedness. We never had opportunity to meet with our lawyers until the evening of November 17, and many of the late comers were never trained at all before being thrown into the fray. We would try to give them a quick briefing as we were shuttling them into the counting area. It was by no means an optimal situation. There is no doubt that the Lt. Governor’s dubious decision to advance the vote count left us in the lurch.

In the beginning, some of the DOE employees seemed to have a chip on their shoulder. Evidently, the multi-million-dollar propaganda campaign waged by Murkowski and her minions had convinced some of the folks there that we were malevolent sociopaths. Some seemed surprised that we were actually human. But in time they warmed up when they realized that we had no evil designs. We were just concerned citizens who wanted to see an orderly and lawful outcome.

Among the attorneys assisting on the ground, there were five new faces, four of which the NRSC had apparently recruited and footed the bill for. The first couple days were somewhat erratic due to the fact that there really wasn’t time for any significant training, and the lawyers had some disagreements among themselves over what should and should not be challenged. Their standard for challenged ballots vacillated between challenging technical points to waiving ballots through that were challenged by volunteers and clearly misspelled. It didn’t help any that we had a revolving door at the top. Due to scheduling issues, there were three different lead attorneys designated within three days, thanks to the Lt. Governor’s rush to certification that was ultimately stayed by the Federal District Court.

As things went along, the first day was touch and go. We made some adjustments on the fly, altering an excessively strict decision that one of our lawyers decided to apply challenging name order. Our Alaskan attorney, John Tiemessen, took the lead for the first two days, but had to be back in Fairbanks for a court date on day three. Chip Gehrhardt, an attorney from Cincinatti, Ohio took over on day three and it seemed like we had reached equilibrium. However, when he left the following day to attend to family matters, we were left with yet another lead supervisor. This time things didn’t go so well. When I got back to the hotel, I got an ear full from several volunteers who believed the latest guy in charge was not acting in Joe’s best interest. I had seen some of the ballots he waived earlier and was mildly concerned, but after a volunteer revolt that night over his performance, I secured Joe’s authority to replace him. He had apparently waived numerous volunteer challenges throughout the day on ballots that multiple volunteers insisted were clearly misspelled.

In my view, the NRSC had screwed us once, and I stood idly by while they did it. I wasn’t going to make the same mistake twice. Joe Miller would get the benefit of the doubt on our activities in Juneau. Our “friend” assigned from Washington would just have to sit on the sidelines. I asked him not to even show up at the vote count location because I didn’t want the media talking to him about why he was no longer in charge. Before the day was over, he would convince the rest of the NRSC team to pack it in and go home. He reportedly told them that they weren’t needed or wanted there, a sentiment we never even considered or expressed. In fact, the whole scenario was not a little bit unsettling. Nonetheless, the whole group walked off the floor in the middle of the count that afternoon, leaving us in a scramble to fill their posts.

When I took over as the vote count supervisor and named Bill Peck as my assistant, it had angered our attorneys. But Bill was a known quantity, and I knew I could trust him to act in our interests. At that point, I set clear standards that were executed consistently for the duration. They weren’t new; it was just a matter of uniform application. I instructed the volunteers that if there was doubt about whether a ballot should be challenged, they should err on the side of Joe Miller. The lawyers could sort out the rest later. There had been numerous ballots challenged over the previous days that should not have been challenged, but there had also been an equal or greater number that had not been challenged and should have been.

My standard was to challenge a ballot under the following conditions:

• if the name written on the ballot was misspelled

• if there were extraneous marks or words on the ballot

• if it was an over-vote or under-vote counted by the Director, even if she counted it for Joe Miller; or

• if the name was written somewhere on the ballot other than the line provided as prescribed by statute

We made it abundantly clear, even to our counterparts on the Murkowski team, that we had no desire to steal an election. We simply wanted the law to be followed. It wasn’t long until anybody in the room could have predicted what we would or would not challenge. In fact, many of the Division of Election workers began setting them aside before we even issued a challenge. There was no ambiguity over what we were doing. Toward the end of the count, a Murkowski observer was quoted in the Anchorage Daily News affirming that the Miller team was not making frivolous challenges, as the Department of Law and the Division of Elections would later argue in court. As the count wound down, we knew we did not have enough challenged ballots to change the outcome. We could have picked up the pace, but we opted against it, challenging only the ballots we would have challenged had circumstances been otherwise. It was just the right thing to do.

Incredibly, the Division of Elections provided no orientation for ballot observers. They simply stated a few ground rules at the beginning of the count, but by the time the count was underway it had become evident that the rules were ad hoc, and could be changed on the fly at the slightest provocation. Over the first couple days, there was a constantly changing environment. For instance, at the outset the press was barred from the floor and had to watch from a distance. But after the review began and we started challenging ballots, the Director politicized the process by allowing the press to have free range inside the review area, and to take pictures of the challenged ballots. We, on the other hand, were prohibited from taking pictures of the ballots being counted by the Director, or the Murkowski team. It took days before I saw any of those ballots make their way into the press. As a result, by design, only one side of the story was getting out. But by that time, the narrative had spread far and wide that Joe Miller’s team was making frivolous challenges.

Of course, the press was primarily taking pictures of ballots in the box challenged by Miller volunteers. Many of those ballots, however, were never ultimately challenged, because they were waived by floor supervisors. For reasons I cannot explain, the attorneys raised no objection to the rule until the end of the fourth day of the vote count. As I watched the Department of Law take pictures of votes we had challenged, it dawned on me that they were building a case against us. I called our Anchorage attorney Tom Van Flein, and asked him about the legal grounds for an appeal based upon equal access. He thought it was a good point and gave me the green light. I subsequently appealed to the Director. Upon consultation with the Department of Law, they relented, and allowed us to take pictures on day five. But it didn’t matter. We had already lost in the court in public opinion.

Other protocols were fluid as well. For instance, many of the volunteers had to stand opposite DOE employees while they sorted the ballots, placing them in boxes facing away from the volunteer observers. I was initially at one of those tables. When I protested and asked that the boxes be turned so I didn’t have to review ballots upside down, the Murkowski observer immediately intervened. The DOE employee ruled against me. It was as though they were trying to keep us from seeing the ballots clearly. The practice was later overturned.

The Division of Elections was never forthcoming on its standard for counting misspelled or otherwise questionable ballots. We heard various standards articulated. Some Division of Election floor workers suggested it was a two letter standard, three would disqualify a ballot. Attorney Gary Kreep, in a sworn affidavit, reported the following:

“Gail Fenumiai came over to view the challenged ballots at my table. She took three of the ballots away from the table so that she could discuss them with her staff. While simply sitting there, I could overhear what they were discussing. The male attorney, Mike, told her that there were three syllables in Murkowski, and as long as two of the syllables were ok, she should over-rule the challenge. The spelling of Murkowski, according to the context of the comment, is meaningless to the DOE, as long as the sounds are there.”

The Lt. Governor came out publicly and affirmed that it would be a phonetic standard. But from the Director’s actual decisions, one could not discern any concrete pattern being followed. We were not alone in our bewilderment. “Even [the Murkowski team] seemed unsure of the exact standard Ms. Fenumiai was applying,” said New York Times reporter Bill Yardley in a Nov. 10, 2010 article. He went on to quote Murkowski spokesman John Tracy saying, “it appears to me that there’s about a three letter standard.” At the end of the day there were ballots counted that didn’t meet any of the standards. Anyone now suggesting that there was a clear and uniform standard for determining which votes would count is involved in some very creative revisionist history.

We watched as the Director huddled over and over again with Department of Law attorneys trying to decide whether to count a ballot. In the early stages, their attorney’s kept a list of acceptable spellings. In time, the Director quit consulting the list. We all knew she was just winging it. It was no longer a matter of measuring against some intelligible standard; it was “discretion” without parameters. In fact, it was so arbitrary that we joked that she was “divining” intent. To my great amusement, Becky Boher of the Associated Press later used the term in reference to a new statute passed by the legislature granting statutory authority to the same “discernment” process exercised during the Senate vote count.

Whatever the “standard” actually was, it is difficult in the extreme to figure out by any definition of “phonetic,” or its cognates, how the Director arrived at the decision to count the following ballots for Lisa Murkowski: “Muskisk,” “Moukoky,” “Murcosaga,” “Mulkalkie,” “McKoskie,” “McKowkie,” “Mucoskie,” “Murski,” “Murkusk,” “Muskieawe,” “Murkousi,” “Matkoski,” “Marceuski,” “Murkoshi,” “Maruski,” etc. Apparently, if it started with an M and had two or three letters in common with Murkowski, it was good to go. I even saw one that didn’t start with an M that was ostensibly counted.

These and many more of the ballots we saw counted by the Division of Elections could hardly be described, even with considerable license for embellishment, as “minor misspellings” or “penmanship issues,” as the Department of Law stated in court. It was simply not true. According to Miller volunteers, there were also a number of rather vulgar mutations and permutations not fit for polite company that the Director mysteriously divined to be intended for Murkowski. Many of them were obviously intended as protest votes, but intent was a one-way street.

On many occasions, the Director also counted over-votes (votes with more than one oval filled in). There were votes counted where the whole ballot was filled out in pencil, except the US Senate portion which was written in ink. Others had been filled out in one color of ink with US Senate votes cast for Joe Miller or Scott McAdams, only to have the oval crossed out and Lisa Murkowski written in in another color of ink. There were all kinds of variations on the theme, but the point is, generally such ballots would be disqualified, especially when there is an appearance that the ballot may have been tampered with. But apparently the Director could divine the motives of these voters as well. To be sure, on a few occasions over-votes were counted for Joe Miller too, but it was a much less frequent occurrence, and we challenged those ballots along with the others. I even saw the Director count an under-vote (a vote with no ovals filled in) for Murkowski on one occasion. It was a faxed ballot with the oval circled rather than filled in. At the end of the day “intent” turned out to be whatever the Director said it was.

One of the issues that would later be raised in court was that the write-in ballots were treated differently than those that were cast for candidates actually on the ballot. All the ballots were counted, but only the Murkowski ballots were hand-counted separately. The other ballots were counted together, but their individual totals came directly from the Diebold machine count and became the official tally. It would have taken little effort for the Joe Miller ballots to be segregated and counted separate from Scott McAdams’, ensuring that there were no inequities in the process. It is truly mystifying that this wasn’t done, and it defies common sense when one considers the notorious issues raised about the reliability of the Diebold Voting machines.

A later internal audit of 5% of precincts revealed 160 extra ballots. If those numbers were extrapolated out across the state and held out, there would be 3,200 extra ballots. Presumably they would have all gone to someone who was on the ballot, which means that Joe Miller may have made serious gains. At least enough to destroy the mootness argument later raised in court.

In spite of the way we were pummeled in the press by Alaska State government officials, then-Lt. Governor Craig Campbell told me during a private conversation that he didn’t blame Joe Miller for what he was doing. “If I was him, I’d probably do the same thing,” he said. I knew that was his way of telling me that it wasn’t personal. He was just doing what he had to do. But I found it rather disturbing that he didn’t appear to have any convictions about the decisions he was making. It was reminiscent of Groucho Marx’ quip, “Those are my principles, if you don’t like them I have others.”

In numerous precincts there were ballots that appeared to be filled out in the same hand. In some precincts it was only dozens, in others, it was hundreds. The Division of Elections dismissed it out of hand, insisting it was nothing to be concerned about. They claimed the Voter Rights Act provides for voter assistance to be offered to the disabled, and to speakers of other languages. But legally, the weight of evidence is on the Division of Elections to account for such anomalies. They never did.

Several other precincts came in with ballots pre-sorted by US Senate candidate with all the write-in ballots segregated. Some of them also lacked the requisite signatures over the seal from supervising election officials, a standard operating procedure to ensure that the seals are not tampered with, and the integrity of the ballots not violated.

What made this especially disturbing was the fact that Division of Elections had entrusted ballot security to a private firm, Goldbelt Security, whose parent corporation, Goldbelt, Inc., had ostensibly received hundreds of millions of dollars’ worth of federal no-bid contracts under the Small Business Administration’s 8(a) program. Joe Miller had openly challenged the 8(a) no-bid contracts, and had pledged to reform the system. The parent corporation was disciplined in 2008 by the SBA after an Inspector General’s report revealed they had failed to fully disclose the financial interests of their non-native partners, in violation of their Participation Agreement, information that may have affected their eligibility status for the contracts in the first place.

Goldbelt also had multiple board members who were employed by Sealaska Corp., another sworn enemy of Joe Miller. Sealaska directly contributed one hundred thousand dollars to Alaskans Standing Together, a Super-PAC that spent a reported $1.7 million, and whose sole reason for existence was the election of Lisa Murkowski, or perhaps more accurately, the defeat of Joe Miller. Further, Sealaska board member Byron Mallott was Lisa Murkowski’s campaign co-chair. Other prominent Murkowski backers also had ties to Sealaska, including Sealaska board member and State Senator Albert Kookesh, who was also Co-Chairman of the Alaska Federation of Natives, an organization that donated more than three hundred thousand dollars to the efforts of Alaskans Standing Together. Representative Bill Thomas, Co-Chair of the powerful House Finance Committee in the Alaska Legislature was also a Sealaska board member and prominent Murkowski supporter. The campaign manager for Alaskans Standing Together, Jerry Mackie, was Sealaska’s lobbyist.

Sealaska’s support for Murkowski was driven, not only by Joe Miller’s promise to reevaluate the 8(a) no-bid contracting scheme, but by the sitting senator’s pet legislation designed to give large tracts of land in the Tongass National Forest to the Sealaska Corporation. The old growth timber alone was worth untold millions, but it also included future hydroelectric sites that raised the stakes even higher. Again, DOE insisted it was much ado about nothing.

I personally witnessed ballots come in pre-sorted without DOE signatures during the first day of the count, notifying our lawyers and DOE officials alike. Initially I wasn’t going to make a scene, but when I noticed it was a precinct from the Murkowski’s hometown of Ketchikan it raised suspicion. It only heightened my concern when I overheard Murkowski campaign manager Kevin Sweeney tell his observer, “This could be a problem.” Our lawyers later called on me to write an affidavit to be presented at a press conference on site, alleging potential fraud.

I was unprepared for what came next. Bill Yardley from the New York Times openly questioned the veracity of the affidavit on national television, implying that my word was inherently unreliable because I worked for Miller. I was taken aback by his cynicism. Everybody who worked in that room had a stake in somebody’s cause, including the Division of Elections.

Later, as I walked back to my work station, I was accosted by Dan Springer of Fox News. He asked me if we had any evidence of fraud. I told him he needed to talk to our press people. Then he held up the affidavit, almost shouting, “This is garbage! This is garbage!” I just walked away. My attitude was that he was supposed to be a professional. If he didn’t believe what I said, then he didn’t have to report it. But I found his apparent emotional investment in Murkowski’s cause inappropriate for someone passing himself off as a news reporter. I stand by my story. It should raise questions for any impartial observer.

There were also reports of Murkowski intimidation both toward our volunteers, and most importantly, toward some of the Washington DC lawyers who had come to work on our behalf. One lawyer claimed that the Murkowski observer at his table had a dossier on him, which she revealed. That lawyer was later overheard telling the Murkowski observer that he hadn’t challenged very many of the write-in ballots. What could go wrong there? A Washington DC attorney who depends on work in the Capitol for his livelihood being sent the message that a powerful member of the United States Senate knew who he was, and where he lived? They ostensibly had even shown him information relating to his property holdings in his home state, and who knows what else. Perhaps the more disturbing question is how they knew that particular lawyer would be there. The only plausible explanation was that the NRSC, whose executive director had described it as “an incumbent retention organization,” had shared the information.

One night during the count, some of our folks happened to stop into the bar at the infamous Baranof Hotel. They reported seeing the Lt. Governor, DOE staff, Murkowski staff, and members of the press drinking together. Such incidents didn’t tend to make our folks feel any better about the situation. It only fed an overwhelming impression that something was badly amiss.

Notwithstanding our issues with DOE decisions and process, most of the workers were professionals and treated us very well. Before the week was over, we had even forged positive relationships with many of the Murkowski folks. After a long and bitter campaign, there was a surprising level of civility among the observers. It was a grand example of the spirit in which disputes ought to be settled in a free society.

For us, the whole process was never about stealing elections, disenfranchising voters, or fighting over hanging chads. There were foundational principles at stake that also happen to be at the core of Western Civilization: the rule of law, equal justice under the law, elections integrity, etc. It was a fact the press never acknowledged. But after all the salacious nonsense coming from our own press corps, there was one very unlikely voice of reason cutting through the white noise in Juneau. I was transfixed as I stood and listened to a reporter from Al Jezeera TV (of all people) tape his evening report on site. The narration began, “This is more than just a dispute over ballots. It is a battle of ideas.” And so it was; realism versus nominalism. It was the most trenchant analysis I heard during the whole debacle.

It is a sad commentary on the state of American journalism when we have to look to Al Jazeera for a word of truth. It bespeaks the insipid nature of American education. In ages to come, I suspect the story of Western Civilization will be told along such lines. The only question that remains is, “Will it end on our watch?”

(Click HERE for Part 2 of “Stealing an Alaska Election”)