Stealing an Alaska Election, Part 3: Activist Judges and Hanging Chads

Early indications of what we were up against in November 2010 came when the Alaska Division of Elections decided to post lists of write-in candidates at the polling places in direct contravention of their own regulations. Upon learning of the lists, the Alaska Democratic Party demanded that the Division of Elections remove them. The Division refused. The Alaska Democratic Party immediately filed suit in State Court for a temporary restraining order to stop this reckless and unprecedented move. The Alaska Republican Party later joined, offering the weight of bipartisan opposition. Party Chairman Randy Ruedrich was quoted in a press release saying, “During this election every candidate and political party has been operating under one set of rules laid down by Alaska law. To now change those rules midstream is inherently unfair to all concerned. This hasty decision both threatens the integrity of the election process, and the legitimacy of every candidate elected.”

In a stunning rebuke to DOE’s bureaucratic overreach, Judge Frank Pfiffner offered the following decision:

For the first time in the election history of the State of Alaska, the Division of Elections has provided a list of the names, party affiliations, and the registration status of write-in candidates to each polling place in the state. The actions of the Division are in clear violation of an Alaska administrative regulation. Plaintiff Alaska Democratic Party and intervenor Alaska Republican Party have clearly shown that they will probably succeed on the merits of their claim. Pursuant to Alaska R. Civ. P. 65, the court hereby grants a temporary restraining order enjoining the Division from allowing election workers and polling place workers to post write-in candidate names, to provide a list of write-in candidate names to voters, or to provide verbally the names of write-in candidates to voters at any place within two hundred feet of a polling place for the November, 2010, general election.

Amazingly, the Division of Elections “illogically” argued at once that its own regulation should be supervened because it was both unconstitutional and a violation of The Voter Rights Act, and that it should be interpreted in such a way that the lists did not constitute “information” as referenced in Alaska Administrative Code, section 6.25.070(b). The regulation reads, “Information regarding a write-in candidate may not be discussed, exhibited, or provided at the polling place, or within 200 feet of any entrance to the polling place, on election day.”

Judge Pfiffner, confirming that there is still at least one honest judge in Alaska, opined that the Division’s “unreasonable and arbitrary interpretation” resulted in the violation of “the plain and clear meaning of the regulation.” He further wrote that the write-in list “clearly provides information,” and “smacks of electioneering,” violating Alaska Statute 15.15.160 which states that poll workers may not discuss any candidate while polls are open.

In an extraordinarily brazen move, the Alaska Supreme Court overturned Pfiffner’s decision, the clarity of the language notwithstanding, and in spite of the fact that the Division of Elections also violated the Voter Rights Act by posting the lists without receiving pre-approval from the US Justice Department. To make matters worse, DOE broke Alaska’a laws relating to the promulgation of new regulations. Alaska Statute requires either temporary emergency regulations to be filed and signed by the Lt. Governor, or an open process for the promulgation of new regulations that affords a public comment period. In a footnote to his decision, Judge Pfiffner explained his charge about the “surreptitious” nature of the Division’s actions:

If, with forethought, the Division decided to adopt a uniform standard of assistance to voters through use of a write-in candidate list, the Division should have followed the procedures of the Alaska Administrative Procedure Act, AS 44.62, proposing a new regulation, taking public comment, and only then changing the law.

Having worked in regulation review in the Lt. Governor’s Office, I knew the procedure. So I decided to look into what the DOE had done, myself. Upon placing a call to the Lt. Governor’s office, I was told that his office was unaware of any emergency regulations relating to write-in lists. And there was never a public comment period. Nevertheless, with respect to charges that were brought against State Senator Albert Kookesh on fishing violations, in a ruling just one month earlier, the state courts ruled Alaska Department of Fish & Game regulations to be null and void because they had not passed through a public comment period.

To my knowledge, the Division never changed its regulations. DOE simply changed the rules governing an election by fiat less than one month before the general election. Both the Lt. Governor and the Governor declined to intervene. In an official statement, Alaska Republican Party General Counsel Kenneth Kirk remarked charitably that “regardless of the actual motivation, making this kind of change for the first time ever, when there is a powerful candidate running a write-in campaign, will raise suspicions that political skullduggery is involved.” He added that in his view, several State laws had been broken.

What was just as extraordinary as the Supreme Court’s brazen disregard for the law was the US Department of Justice turning a blind eye to the whole debacle. The Alaska Division of Elections had undoubtedly violated federal law, and the Department of Justice never raised objection. In fact, DOJ’s response was quite the opposite. After a suit was filed over the violation of federal laws, DOJ expedited the approval process and rubber-stamped the changes after the fact, but a day before the election. Our lawyers commented that it was highly unusual to get DOJ to act so precipitously. It was evident that there was an intervention on DOE’s behalf by someone very high up in the Justice Department, or perhaps even the White House. Could it have been related to a rumored meeting that Murkowski had with the White House in September, or an explanation for why Murkowski was the only Republican member of the US Senate to vote for every major piece of legislation in President Obama’s lame duck agenda? We’ll likely never know.

Next on the docket was the Fairbanks North Star Borough personnel records case. After contents of Joe Miller’s confidential files were illegally leaked, the Alaska Dispatch filed suit to force them into public view. The Fairbanks Daily News-Miner and the Anchorage Daily News later joined the suit.

But even more astounding was the Court’s handling of the matter. In an act perhaps unprecedented in the history of the Alaska Court System, the Chief Justice of Alaska’s Supreme Court, Walter Carpeneti, personally intervened and appointed a retired judge to decide the case. In so doing, the Chief Justice apparently circumvented the random appointment process required under Alaska Court rules. Taking charge of the media’s late filed request, Judge Winston Burbank immediately fast-tracked the case, holding his first hearing on a Saturday. Our attorneys told us that they had never seen the Alaska Court System hold a Saturday hearing in a civil case, except for emergency child endangerment cases. Even the Anchorage Daily News, a party to the suit, acknowledged the fact, calling it “an unusual weekend hearing.” In short, the judge was essentially advocating on behalf of the plaintiffs. Incidentally, Burbank received his judicial appointment from Governor Frank Murkowski.

The facts of the case are just as disturbing. Burbank offered only a verbal decision, tailored specifically to Joe Miller, perhaps to avoid making precedent. In it he ruled “Mr. Miller’s right to privacy is outweighed by the public’s significant interest in the background of a public figure who is running for the U.S. Senate.” He gave no arguments, just a verdict. It was an extraordinary move, given the Alaska Constitution’s clear and unequivocal right to privacy that “shall not be infringed.” Joe Miller was not a public official, he was a part-time attorney, a position that is not elected or appointed. He was just a public employee like any other private citizen who works for state or local government. Our Attorney Tom Van Flein made an impassioned appeal stating, “It’s not correct to argue that merely by running for the U.S. Senate, that somehow everything in your past: your school transcripts, your medical records, your birth certificate, or your personnel file, suddenly magically convert to public records.” But it was all to no avail. Apparently, Joe Miller’s case deserved different treatment than President Obama’s.

Burbank’s decision was handed down despite the fact that the primary piece of information sought by the media, the disciplinary action, and one of the documents ordered released, did not even legally exist. The conditional disciplinary action, signed by both parties, explicitly stated, “This letter of Disciplinary action shall be removed for [sic] your personnel file no later than two years from the date of this letter, provided there are no further incidents.” There were no further incidents, but the adverse personnel action remained in the file.

Had the Borough kept faith with its contract, the disciplinary material would have been destroyed no later than March 28, 2010, weeks before Joe Miller ever declared his candidacy for the United States Senate. In essence, the Borough was holding illegal documents, and the judge ordered the Borough to disclose them, in spite of the fact that it had no legal right to possess them.

Later at a Christmas party, Judge Burbank asked someone connected with Joe Miller’s campaign why we had not appealed the decision. The clear implication being that even Burbank knew it was wrong. But it didn’t matter. The verdict was so late in the election that an appeal would have been just as politically damaging as the decision itself.

When the post-election legal festivities commenced, we were right back where we started with the write-in list case. We had an explicit state statute that was being ignored in favor of a bureaucratic order. Nowhere in Alaska Statute was there any reference to “voter intent.” The Division, with the help of miscreants at the Department of Law, trotted out some obscure judicial “precedent,” a ghost of elections past unrelated to the write-in statute in question, to justify their rogue behavior. And true to form, the Alaska Court System backed them up.

Knowing our chances of success would be more remote in State court, given previous decisions, we filed in Federal court first. Although some of our claims related to state law, there were critical federal issues at stake. But Federal District Court Judge Ralph Beistline ordered the case back into the State courts for adjudication, staying certification and preserving jurisdiction over the case until all State legal questions were resolved.

After two inexplicable judicial recusals, Judge William Carey, from the Murkowski’s hometown of Ketchikan, took the case. Upon graduation, Carey had interned at Cook Inlet Native Association and later clerked for Birch, Horton, and Bittner, a firm owned by fabled members of “the Alaska Mafia,” the very people who were invested in Joe Miller’s defeat. But apparently Judge Carey and Chief Justice Carpeneti thought there was no conflict of interest.

At issue in the saga of the write-in process was the clarity of existing law. The text reads as follows:
AS 15.15.360(a)(11) states: “A vote for a write-in candidate . . . shall be counted if the oval is filled in for that candidate and if the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided.”

Judge Carey’s rendering of the above statute singled out the term “appears,” and proceeded to catalog the scope of dictionary definitions. “The use of ‘appears’ allows variations of the write-in candidate’s name to be accepted,” Carey said. “’Appears’ does not mean ‘exactly,’ ‘precisely,’ or ‘perfectly,’ but rather ‘close to,’ ‘like,’ or ‘resembles.’”

The more grammatically viable definition of the statutory usage of the term “appears,” was the definition offered by Miller: “To show itself or be plainly set forth in a document.” Clearly the text referred to a particular manifestation of the name, that written in the declaration document. While the judge acknowledged that the definition put forth by the Miller team was instructive, he held that it was not conclusive.

I might remind Judge Carey of one of the first canons of classical textual interpretation relating to the meaning of terms: “The meaning of a term is not determined by etymology or morphology; it is determined by context.” The immediate context of the write-in statute has three uses of the term at issue. In the same statute, there is an identical use in section (12), and an additional use in section (7) unequivocally supporting a constructive definition of the term as defined by the plaintiff, and lending unity to the text.

As the courts construed the term, it no longer had an internal statutory referent. Under the new definition of “appears,” the referent was something never mentioned in (or intended by) the text. It was the perception of the voter. By cherry picking a definition that did not comport with the immediate context of the statute, the judge had subtly shifted the referent of the term from the concrete document upon which the write-in candidacy was declared, to the perception of the voter. Moreover, it was completely contrary to DOE’s past application of the statute.

Imagine the legal ramifications of the absence of concrete referents in other contexts. Suppose I decided to purposefully disregard, or through an honest mistake violated, a (hypothetical) hunting regulation established by ADF&G banning moose harvests along a particular game management boundary. Do you suppose the alternate definition of “appears” deployed by the courts in both of the above mentioned cases would save my hide when I stood before the judge, given that I would be using it, contextually, in an almost identical manner as the courts? Of course not. After imposing a stiff penalty, Judge Carey would rightly laugh me out of court. It just doesn’t pass the red face test. Of course, neither did Carey’s decision in Miller v. Campbell. If similar legal definitions were allowed to proliferate, investing individual citizens with perceptual legal trump cards, societal chaos would ensue. It would essentially be the end of the law.

Other serious charges of fraud and irregularity were summarily dismissed for lack of evidence by the Alaska Supreme Court, despite sworn affidavits. We were not asking for summary judgment on the issues, only for discovery. In essence, we were asking the State to investigate the claims of fraud based upon the sworn testimony of eyewitnesses. If that is insufficient evidence for discovery, it is hard to imagine what the bar might be. Our attorneys were stunned that discovery was not granted. In most cases, with the evidence we presented, it would have been a foregone conclusion.

It is interesting to note that the law clerk who wrote Judge Carey’s decision bumped into Joe and Kathleen Miller in a coffee shop in Ketchikan during the summer of 2011. In a curious display of imprudent exuberance, he asked to have a picture taken with Joe, bragging that the decision “launched his career.” He claimed that he was being appointed to a position in the District Attorney’s office as a direct result of the work he did on the Miller case.

The Alaska Supreme Court’s ruling in Miller v. Treadwell was slightly more sophisticated, but transparently a conclusion in search of an argument, failing to overcome the internal contradictions outlined in Judge Carey’s decision. The members of the court unanimously opined: “The word ‘appears’ relates to a pseudonym’s possible presence on the ballot, not the particular form of the vote, and demonstrates that the statute is inclusive.”

As evidence for this interpretation, the Court pointed to the ‘nickname’ field on the declaration of candidacy form, suggesting that “appears” only applied to said anomaly, in spite of the fact that the declaration form had no inherent relationship to the text of the statute. There is no statutory reference to nicknames, making the argument primarily a dispute over regulatory discretion. Last I checked, Administrative law reposes on Statutory law, not the other way round. Further, the pattern of punctuation would lead one inexorably away from such an interpretation, not to mention the fact that by bringing up this point they had shifted the referent away from the voter’s perception back to the declaration document, thus mitigating the lower court’s decision and affirming Miller’s definition of the term “appears.” However, it illogically affirmed the lower court’s decision anyway.

The Supreme Court’s insistence that the pseudonym argument “demonstrates that the statute is inclusive – it is designed to include, rather than exclude, votes” also contradicts section (b) of the statute, which states explicitly: “The rules set out in this section are mandatory and there are no exceptions to them. A ballot may not be counted unless marked in compliance with these rules.”
A reasonable common sense standard would dictate that Miller’s interpretation was, in fact, the correct interpretation of the statute. Any other interpretation sets the statute at variance with itself, and renders it untenable under constructive cannons of interpretation.
The Alaska Supreme Court in Miller v. Treadwell affirmed the earlier ruling of Judge Carey in Miller v. Campbell that the write-in statute as it existed should be interpreted to be inclusive of disputed ballots. What is troubling about the court rulings is neither the fact of inclusion, nor the presence of a “voter intent” standard. Rather, it is the fact that the rulings clearly do not comport with the specific language of the statute established by the representatives of the people.

In an inherently undemocratic power play executed under the guise of democratic enfranchisement, the courts have swept the constitutional authority of the state legislature aside, and enshrined in its place their own “moral” imperative.

Further complicating the State’s position was the simple fact that there was precedent for Miller’s interpretation of the write-in statute. In past elections, the Division of Elections interpreted the statute the way Miller did. In 1998, gubernatorial candidate Robin Taylor had almost 8% of his ballots disqualified because they did not meet the statutory standard for write-in votes. There was no write-in precedent relating to “voter intent.”

Though the Alaska Supreme Court argued its decision was based upon such “bedrock principle” as one’s fundamental right to vote, and a prejudice against “wholesale disenfranchisement of qualified electors through no fault of their own,” the protest was specious on its face. The suit was never about one’s legal right to cast a ballot, or wholesale disenfranchisement of voters through no fault of their own. It was about the plain construction of the law which everybody involved knew and understood, and whether legal voters and legally cast votes would be disenfranchised by illegal voters and illegally cast votes. It was that simple, obscure case law notwithstanding.

The Supreme Court’s decision went on to say, “In light of our strong and consistently applied policy of construing statutes in order to effectuate voter intent, we hold that abbreviations, misspellings, or other minor variations in the form of the name of a candidate will be disregarded in determining the validity of the ballot, so long as the intention of the voter can be ascertained.” Here was the crux of the issue, both in terms of what the court was doing, and what the real issue was. First of all, the court openly admits to having a “policy of construing statutes in order to effectuate” their favored outcome, irrespective of what they believe the law to actually say, or mean. Even entertaining the question of “voter intent” reflects the court’s activist interference with a law that plainly means what it says, and says what it means. It was never questioned until a powerful sitting US Senator decided to run for office as a write-in candidate. It was a matter of constructive law, and equal justice under the law. There is no doubt in my mind that the statute would have been constructively interpreted and applied if Joe Miller had been the write-in candidate.

When the State Supreme Court inevitably ruled against us, we returned to the US District Court. Judge Beistline was clearly uncomfortable with trumping the state courts with the federal constitutional issues that had been raised, and opted to punt. In his dismissal, he merely stated that though the charges were not frivolous, and Miller’s statutory interpretation was “easy to understand,” the Federal Court declined “to second-guess the Highest court of the State.” He concluded that the “the Alaska Supreme Court is the final expositor of Alaska law.”

Beistline essentially opined that the DOE had formulated a methodology, that “some process was necessary” to count write-in ballots, and that the process was constitutional because the Alaska Supreme Court said so. The premises may have been true on some level, but the conclusion does not follow. In fact, it is no conclusion at all because it is not the resolution of an argument. It is simply an assertion. There would be no reason for a federal appeal if things were true merely by virtue of a fiat passed down from the State Supreme Court.

While I may grant judge’s the claim of the existence of a methodology to be meritorious on some level, I would also note, as I have in a previous chapter, there was not a uniform standard, despite the fact that there was a sole arbiter, as Judge Beistline noted. To argue that there was on that evidence alone is simply a non sequitur. Surely the fact that only one arbiter, rather than two or three or more, was making inconsistent and sometimes contradictory judgments, does nothing to change the fact that the decisions were arbitrary and capricious.

The equal protection case was modeled after Bush v. Gore, which found that there was unequal treatment of ballots from county to county, therefore constitutional guarantees of equal protection had been violated. In our view, the primary difference between Bush v. Gore and the present case was that by analogy, in the former case the hanging chads were not counted, and in this one they were. Bush sought to keep the chads from being counted. We were trying to get the chad count overturned. But Beistline didn’t buy it, opining that our case failed on its merits by the Bush v. Gore precedent because, unlike Florida, there was a single board regulating the Alaska’s state-wide election, and a single arbiter discerning intent. However, the ruling ignored sworn affidavits of multiple witnesses testifying that ballots with identical spellings or characteristics were indeed treated differently.

Judge Beistline also denied the unequal treatment of ballots relating to hand counts (Murkowski) vs. Diebold machine counts (Miller and McAdams), claiming that Judge Carey’s ruling in the State Superior Court had settled the question. In the earlier case, the State claimed that all the ballots were individually examined and hand-counted. Division of Elections Director Gail Fenumiai reportedly submitted an affidavit to the Superior Court claiming this to be true. If she in fact did, she perjured herself, because the intent could only have been to mislead the Court. While the statement may have been true with respect to the technical accuracy of the language employed, it was a false claim on its face relating to the merits of the case. The write-in ballots were hand-counted separately, while the rest of the ballots were hand-counted as one aggregate number. So Joe Miller’s ballots, in fact, did not receive equal treatment, and a segregated hand-count of his ballots was never conducted, nor tallied. Objectively, we proved that Murkowski’s hand-count exceeded the write-in Diebold machine count by thousands of ballots, but apparently none of the courts cared that votes cast for Joe Miller had less value than those cast for Murkowski. So much for equal protection and “one man (or woman), one vote.” As George Orwell so famously penned in his novel, Animal Farm, “All animals are equal, but some animals are more equal than others.”

Beistline also made a key error in analyzing the merits of the case with respect to equal protection by offering support for the State’s conclusion relating to the equal weighting of ballots by quoting a decision from the Eleventh Circuit which states, “manual recounts in some counties, while identical ballots in other counties are counted and recounted only by machine, and the inevitable variances that this will produce, do not in themselves severely burden the right to vote.” Beistline fails to distinguish between inter-jurisdictional and inner-jurisdictional weighting. Alaska is a single-jurisdiction. Therefore any inequity in ballot weighting is an inner-jurisdictional matter that constitutes a violation of the equal protection clause.

But in the end it didn’t matter who was right, any appeal was headed for the Ninth Circuit. We knew our fate. But it didn’t make the unwillingness of the courts to judge the case on its merits any easier to swallow.

Beistline also suggested that the Alaska Legislature clarify the write-in statute. While the Legislature did act on the recommendation, they merely added new “voter intent” language without defining it. It is clear that the nomenclature of intent by itself does nothing to preclude future legal issues similar to those the State of Alaska faced in the aftermath of the 2010 US Senate race. Without providing clear and objective standards by which intent may be discerned, the law fundamentally fails to provide a bulwark against such legal challenges, or to protect the integrity of the process from the whim and will of over-reaching bureaucrats and activist judges. But in the end, it was never about a flawed statute; it was about a series of willfully flawed decisions.

The Superior Court’s final ruling of the election came in on June 24, 2011. Joe Miller was required to pay the State of Alaska legal fees, despite of the fact that the Federal Court had ruled that Miller’s interpretation of the law was viable, his case was not frivolous, and it raised “serious issues” in State law. In essence, he was paying for the bad faith of the Alaska Judiciary. In one final display of arrogance and contempt, Judge Carey revealed his bias with a gratuitous insult of Joe Miller, stating, “The main thrust of this action was not, in this court’s view, to altruistically promote and preserve constitutional protections, but to win an election, with the political and pecuniary benefits that would accrue thereby.”

A black robe does nothing to make sense out of nonsense. The court rulings we witnessed in the 2010 Alaska Senate race are illustrative of what is eating away at the foundations of self-government. It is precisely the kind of sophistry that will lead to a crisis of confidence in our judicial system if it is not stopped. It is time for men and women of good faith to say enough is enough. And it is time for our legislative and executive branches to reassert their constitutional powers as equal branches of government.

Click HERE for Part 1 of “Stealing an Alaska Election”

Click HERE for Part 2 of “Stealing an Alaskan Election”