Sunday, April 14, 2013

Hall 4296 Moe 3978

I checked about midnight last night before I went to bed, but the old April 2, 2013 unofficial elections results were still up.

Even though the "updated unofficial results" are marked '6:18pm' I only saw them when I checked again this morning.

I had the sense when I was watching the count of the absentee-by mail votes being counted that Hall was gaining votes, but it wasn't at all clear.  I know there are a lot of votes for Moe that were challenged and are not in the count.  Enough to overcome a 318 vote lead by Hall?  I don't know.

Most of them are the write-ins that have Nick Moe (or a close variation) written in, but the voter left the oval blank.  At the end of yesterday I would have guestimated that there were at least 100 like that.  If we say that each 26 precincts in District 3 averaged 6 like that, it would come out to 156 more uncounted votes for Moe.  The ordinance specifically says that the oval has to be filled in, at least with some mark.  The Alaska Supreme Court said in the Miller v Treadwell decision (on the Murkowski write in vote) that even those clearly written in without the oval marked wouldn't count.  The Muni ordinance follows the State law on this closely. 

There were also some ballots where people who live in District 3 voted out of precinct on ballots that didn't have the District 3 race on them.  They still wrote in Moe.  So, these were people who were eligible to vote in that district, but did not vote in their home district.  These votes weren't counted either.  I'd guess there were 15-30 of these at most.

Then there were a lot of votes for variations of "Nick Moe" that were not counted.  The Election Office had a list of acceptable and unacceptable misspellings of "Nick Moe."

Acceptable Unacceptable
  • Nic Moe
  • Nik Moe
  • Nick Mo
  • Nic Mo
  • Nick Mow
  • Nick Moh
  • Knik Moe
  • Knick Moe
  • Nick Moo
  • N. Moe
  • N. Moa
  • N. Mow
  • Nicolas Moe
  • Moe
  • Nick
  • Mo
  • Moo
  • Moa
  • Nick Smith
  • Click Moe
  • Pick Moe
  • John Moe
  • Tommy Moe

There were, of course, a lot more variations that showed up that the Municipal Clerk had to decide on.  Things like Rick Moe and many others. 

There were also a couple where both the Ernie Hall oval and the write in oval were filled in, Nick Moe had been written in and Ernie Hall had been crossed out.  The Clerk ruled these were overmarked which is explicitly not allowed in the rules. 

I know the attorneys for the two candidates kept track of all the disqualified votes.  They'll know for sure if there were enough thrown out votes to keep Moe in contention.  It will be up to the Moe team to decide whether to challenge the election. 

I learned that Hall's attorney in this, Scott Kendall, was Murkowski's attorney when Miller challenged her write-in votes.  He had argued in court that the ballots that had Murkowski written in but without the oval marked should count.  If this election were to go to court, he would be in the position of arguing against what he argued last time.  I got some well-appreciated confirmation when he told me that my post on what might happen in a lawsuit over the questioned ballots was a good, accurate piece.  I figure he should know.  He went on to add to what I'd written the idea of subjective and objective measures.  Once you allow for the possibility of slight misspellings in the name, what is acceptable and unacceptable is subjective.  And the law didn't clearly say the write in had to be spelled right.  However, the law clearly says the oval must be marked and you can objectively see that it has or hasn't been.  He thought it would be pretty hard to get them to change that decision.  He did say that he had put in my arguments - that writing in the name showed intent and that with a write-in vote you didn't really need to fill in the oval to show which candidate you wanted - and they rejected them.

On the other hand, he didn't have the Court's strong language on voter intent,  the importance of enfranchising people, and the need to overlook minor mistakes, because of the variable backgrounds and abilities of Alaskans if their intent is clear. 

But if there aren't enough challenged votes for Moe to overcome the 318 vote deficit, this is all moot.  However, the Assembly ought to look very carefully at these issues and see if there are some changes that could be made to the Ordinance to increase people's ability to have their votes counted without compromising the integrity of the count. 

The Election Commission still has to certify the election and the Assembly has to officially except the results. 

I'd note that I left City Hall yesterday late afternoon before the final tallies were totaled.  So did most people.  While the results are marked 8:15:31pm, I couldn't pull them up around midnight last night.  I don't know what the totals were for the different categories of ballots that were counted - absentee-in person; absentee mail in; questioned ballots, etc.  But both candidates' attorneys were there and I have no question about the integrity of the vote count.  There were things that shouldn't have happened - like the Election Commission not counting the questioned votes when the voting official failed to sign the questioned ballot form -  but altogether the Municipal Clerk, in my mind, kept the process as transparent as she could.  Every decision she made was after explaining her understanding of what happened and the how the Ordinance applied and listening to the two attorney's offer their takes.  And she went way out of her way to preserve all the votes and even to identify where there might be write-in votes for Moe, even though she had ruled them ineligible, so that should there be a court case, all the votes were preserved and the candidates' attorneys knew where they were. 

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