When is a Term not a Term?

Thursday, February 28, 2008, 10:34pm
The ADN says that Dr. Peter Mjos is challenging the City Clerk's decision to let Dick Traini run for a fourth term because the charter says you can only serve for three consecutive terms. The City Clerk's decision is based on an opinion written by a hired attorney. The attorney concludes that partial terms were not intended to be counted in the term limit provision and since Traini's first term here (he had served prior to that and then was defeated by then future mayor George Weurch if I recall correctly.) There's lots here to chew on.

1. The political consequences of this lawsuit for this race and the next mayoral race
2. How good is the opinion of the hired attorney?

1. Political Consequences

1. For this race. If I understand it right, there are only two candidates. If Traini were deemed ineligible to run, then his opponent Elvi Gray would win. But it also seems to me problematic to have a candidate yanked off the ballot by the courts and for the voters to not have a choice. This could cause a backlash. What if the courts don't finish by election day, and Traini wins. Then the court says he shouldn't have run? The people voted for the term limit provision, but they also would have voted for Traini despite the term limit provision. They would be saying with their votes that the term limit provision doesn't include partial terms.
2. For the upcoming mayoral race. If, in fact, Mark Begich runs for the US Senate, (and that has gotten more likely while I was writing this) and gets elected, a big 'if', he would leave his mayoral position several months before the next mayoral election. If I remember right, the Assembly chair would become acting Mayor. It seems to me better to decide this issue now in an Assembly election than to have it still an open issue if we have a partial term mayor running.


On the one hand, if the law is ambiguous - and if it weren’t the City Clerk would not have asked for an opinion - it should be clarified. But ideally the timing for the clarification should be such that if a candidate is eliminated, others can run for that office. Levesque’s opinion is dated January 7, 2008. I don’t know when the Clerk made her decision or when it was made public - before or after the closing date for candidates to file. To that we must add the time it would take a citizen to decide to file a law suit, since that isn't a casual decision.

On the other hand, are the additional few months Traini served worth depriving his constituents a choice in the election? Shouldn't there be another way to challenge the meaning of the law so it could be done between elections when it doesn’t have immediate consequences on specific people and specific political races?

Does the motivation of the person filing - for political reasons or to clarify the law on principle - matter? Can we ever know the real motivations? Could it be a mix of both? If it is for political gain - to Elvi Jackson’s advantage if Traini were to be found ineligible - one could also say that Traini pushed the limits by running for a fourth term when there was a three year term limit. (He's not the first according to Levesque's analysis - Ossiander did it on the School Board and Daniel Kendall did it on the Assembly. That doesn't make it right, it just means no one challenged them.) Even if the ruling is technically in his favor, it would seem to violate the spirit of the charter. While an attorney’s opinion went in his favor, only a judge’s opinion or a charter amendment could - as I understand it - be legally binding.


2. Levesque's Opinion

Joseph N. Levesque, the attorney who wrote the opinion for the City Clerk concluded

A review of the language used in the MOA Charter term limit provisions reveals that the term limits for elected offices are for either two full consecutive three-year terms or three full consecutive three-year terms. The meaning of the language is clear and unambiguous, partial time served through either appointment or election does not count for the purpose of counting terms. Both the available legislation history and established precedent support this conclusion.

To write that the language is clear and unambiguous seems to suggest that his client, the City Clerk, is a little dim. If it's so clear and unambiguous, why does she have to hire an attorney to tell her that? But an attorney once told me that if he wrote an opinion, it would be a strong, firm opinion, whichever side of the issue he took. So maybe this just reflects that, once Levesque decided it should go for Traini's position, he went for it strong.

How does Levesque reach that conclusion? Partly by logic and partly by referring to the legislative history and intent. The logic doesn't work for me at all. The history and intent - at least the part he refers us to - is more supportive.

The "Logic"

I'll comment on a few things he writes, the whole opinion is here.

Quote 1: (Levesque cites McQuillin whom he describes as "a legal authority on municipal law")

Although an unambiguous statute prescribing the term of an officer will be construed as written, where the legal provisions prescribing the term is [sic] uncertain or doubtful an interpretation will be adopted that limits the term to the shortest time. (p. 2)

So if the Municipal Charter isn't clear on this, we should adopt an interpretation that limits the term to the shortest time possible. That would mean, not allowing someone to run for a fourth consecutive term even if one term was only a partial term. But Levesque comes to the opposite conclusion quoting McQuillin again as saying "the phrase 'term of office'... means the fixed legal period during which the incumbent may legally hold the office."

Do you think the Charter Commission that wrote this language read McQuillin and knew that this was 'the' definition of 'term'? Levesque's opinion talks about 'terms,' 'full terms,' and 'partial terms." Each one uses the word 'term.' But let's move on.

Quote 2: Here Levesque is citing a case called Pope.

"No person shall be elected as a member of the city council for more than two four-year terms..." According to the courts [sic] reasoning, the words 'elect' and 'appointed' have different meanings and a 'four-year term' is not the same as a 17-month term. (pp. 2-3)

But in the Pope case the law specifically said 'elected' and in the Anchorage charter, the word is NOT 'elected' it's 'served.' "[a] person who has served on the assembly for three consecutive terms may not be reelected to the assembly until one full term has intervened."

Note: it says "three consecutive terms" (not full terms) but it also says, "until one full term has intervened." So when they were writing this, they were aware of the difference between full and not full terms. When they wrote about how many consecutive terms someone could serve, they didn't use the word full. But they did use it when they wrote about how much time must intervene before one can be reelected. I would guess this is the precise language on which Mjos is basing his challenge.


Quote 3 - I include this under logic rather than intent, because it is so logically flawed.

Morever, if the intent was for the term limits to include partial terms then language addressing partial terms would have been included. (p. 5)

Don't buy a used car from this guy. You could just as easily make the opposite argument: "If the intent was for the term limits to only be full terms, then language addressing full terms would have been included." This is pure sophistry. And since they did, as I pointed out just above, include 'full term' when talking about how long one had to wait before being elected again, one could logically imagine that they didn't intend the consecutive terms to be full terms or they would have said so.

Since Levesque himself uses the term ‘partial term’ and the charter talks about ‘three year term[s]’ and “two year term[s]” (for mayor), it would seem that the word ‘term’ means time spent serving as assembly member, however long that turns out to be. There could be partial terms, two year terms and three year terms, but all are ‘terms.’ Thus a partial term is a term. The charter prohibits three consecutive terms.


Legislative History and Intent

Levesque cites the original Charter Committee Report #4 and the Charter Review Commission Report to get to the intent of the ordinance. This is after citing legal precedence that legal intent trumps the literal meaning of the law.

He has two citations that logically support his position that one has to serve consecutive FULL terms before term limits apply. (Or should I say "full term" limits apply?)

Intent Quote 1: On page 6 of Levesque's opinion, he cites Committee Report #4:

The charter will limit the Mayor to two successive full terms. A policy question for the Commission is whether a limit on successive terms of Assembly members should be imposed...

He has already decided that what applies to the Mayor regarding full or partial also applies to the Assembly (and School Board) and that from this it means the Commission clearly intended it to mean full terms.

My problems with this are:

1. This is plucked out of Report #4. I'd have to know how many reports there were and what they said (did a Report #6 change its mind?) and read the context of this quote to be sure it means what he says it means. And given some of the other stuff he's written here, I'm not inclined to do that without checking.
2. If the Commission discussed full terms and partial terms and were conscious of this distinction, why, in the end, didn't they say 'full term' when they wrote the Charter? Perhaps at the end, they voted to strike the term 'full.' Of course, I'm playing devil's advocate here. The rest of the context may well support his contention.

Intent Quote 2: On page 8 Levesque writes:

The Charter Review Commission recommended that the term limit provisions be evaluated and voted on by the public, but that any adopted term limits be applied prospectively allowing any incumbent eligibility "to run for two additional full terms."

From this he concludes that they meant (for the Assembly) consecutive 'full' terms. I didn't know you could run for partial terms. And this is talking about what the limbo Assembly members (those serving when the rules were being changed) could do.

It's possible the Charter members did mean what Levesque says the meant, but it isn't possible logically, from these scraps of evidence to jump to the conclusion that Levesque presents:

A review of the language used in the MOA Charter term limit provisions reveals that the term limits for electd offices are for either two full consecutive three-year terms or three full consecutive three-year terms. The meaning of the language is clear and unambiguous, partial time served through either appointment or election does not count for the purpose of counting terms. Both the available legislation history and established precedent support this conclusion.

Personal Note

Anchorage is a small town. Dick Traini was a student of mine and I respect him and have voted for him. But Elvi Gray's positions are closer to mine and I have contributed to her campaign. Furthermore, I know Dr. Peter Mjos and even posted a picture of him on the ski trail not too long ago. I'm also trying to balance my desire to share all I know with my obligations to respect the confidentiality of personal conversations I've had with friends. The rules about sources are being debated for professional journalists, and as a citizen blogger, the trust of my friends and family trumps my obligations to my readers. I don't want my friends to stop talking to me if they fear I'll blog it. If I can find an independent source of information, I might use that but not confidential conversations.

I also don't believe in term limits. I recognize that the system tends to favor incumbents, but term limits imply the public is too dumb to vote right and so we have to prevent them from reelecting someone. But it is the law, and we should follow the law or change it. One way to do that is to challenge it when one has legal standing to do that.



My Conlusion

My conclusion is that this is not clearcut and that a hired attorney is not how we determine law. Getting this to a judge gives us a final decision. But it is also problematic that this decision is coming so late in the game that if Traini were determined to be ineligible, another candidate could not run. I also think that things could get seriously messy if the decision is not final before the election and/or Traini should win and then be declared ineligible. It would put a cloud over Elvi Gray if she got elected that way. It would be better for her to ask the voters, as part of her campaign, to show the meaning of the term limits by voting for her and not voting for a candidate who, if elected, could serve more than nine consecutive years, which would seem against the intent of the term limits.

But I think it will be messier if this issue is not resolved before the next mayoral election when there could potentially be a candidate running who will have served a partial term. If reelected, would that person be able to run for a third consecutive term? (Mayor is limited to two terms.) We need to get this cleared up. Unfortunately, it appears that the only way to do that is to challenge a candidate who is running for a fourth term.

In in the big scheme of things, if someone can serve an extra year, even two, it probably is no big deal. But I don't think that things are nearly as unambiguous as Levesque would have us believe.

Election Traini Wreck

Kyle Hopkins at the ADN blog reports that Judge William Morse has ruled that Dick Traini is termed out and cannot run again for the Assembly. That leaves candidate Elvi Gray-Jackson as the only real candidate on the ballot, but Traini's name will also still be on the ballot. Unless, of course, the Alaska Supreme Court overturns Morse's decision.

So, we will see now whether the voters really wanted term limits or just wanted term limits for candidates they didn't like.

I'm not happy with this whole situation. While I'm not a fan of term limits - I think voters should be allowed to vote for any eligible candidate - it is the law. Rather than stepping down gracefully and following the spirit of that law, Traini chose to challenge the law on a technicality (When is a Term not a Term?) saying his first term wasn't a 'full term' and the Muni contracted attorney agreed with him. Now the judge has said the law does not permit him to run again.

This gets messy for several reasons:
1. His name will be on the ballot. (Muni says it's too late to print new ballots. We still have two weeks. I think they mean it's too expensive.)
2. The Supreme Court could overturn the ruling and say he is eligible. If that happens - and he loses the election - do we have another election?
3. He could get more votes than his opponent. In which case the next Assembly person will have lost the election, but won the seat.
4. The people of my district have only one real candidate to vote for.

But I think a challenge was necessary because:

1. The decision will probably affect the School District and Mayor elections too.
2. The Mayor is planning to run for Senate and if he won, would leave office early.
3. If that happened, the person - Assembly President - filling his seat would be faced with the same issue when he/she ran for reelection the second time.
4. Debbie Ossiander has already served more terms on the School Board and Dan Kendall did it on the Assembly, but no one challenged them. This will give us the final answer on whether this is ok.
5. This was a risk Traini took, knowing he could be declared ineligible, and knowing his incumbency would prevent other qualified candidates from putting their hat in the ring.

So, what the Supreme Court rules will clarify the ground rules. It is unfortunate that the only way this can be done is by challenging a candidate who decides to run for a fourth term (for Mayor a third term.)

So, I'm hoping the people in my district will choose Elvi Jackson-Gray, giving her a mandate to be a good Assembly person, and demonstrating that we believe in term limits, we believe in the law, and that we can elect a strong woman candidate who, because of her years as the Assembly budget analyst, is one of the most qualified candidates to run for the Assembly in a long time. [Yes, I have supported her candidacy with a check.] Doing this will clean up a potential mess that Traini's decision to run, the Clerk's decision to allow him to run, and the Superior Court's decision to not allow him to run have all set in motion. Let's get it behind us.

And the Supreme Court's decision on the appeal will let us know what the rules are for the future and, if Jackson-Gray wins comfortably, won't result in a political mess that will cost the residents of my district all sorts of grief. The Assembly and the people of Anchorage have more important work to get done.

Can we act like adults now? Or are we going to try to make this really messy? Yes, I'm sure there are people who think Jackson=Gray or any liberal candidate means the end of the world, but consider what years of Republican dominance have done to this state. Jackson-Gray on the Assembly will be just fine. Your lives won't come crashing down around you.

Traini's Back In

It seems my mid town vote matters after all. According to an ADN story by Kyle Hopkins, the Supreme Court has decided that Traini is eligible to run.

I've already written on this extensively. It's unfortunate that the only way, apparently, to clarify the ambiguity in the law, was to legally challenge someone running for office for an 'extra' term. I've looked at the Municipal Charter and at the Muni's hired attorney's opinion, and think that he shouldn't have been eligible. But the reasoning Kyle reports the SC used - when there is a doubt in the law, interpret for the candidate - does make some sense too.

The decision clarifies this for future races, which is good and was clearly necessary. Unless the charter is changed again, 'term' does not mean 'partial term.'

I'm sure all this put a damper on Traini's campaign - as Kyle's post says - and Traini may challenge the election if he loses. I still think it is contrary to the spirit of the term limits. He will have served, if he wins and completes his term, more than nine years.

Demboski, Croft, Traini, Dunbar Look Like Winners, Other Races Closer

Demboski, Croft, Traini, Dunbar  look like they are winners.


The South Anchorage race is too close to call.

Bettye Davis is likely the winner in her School District race, the other race is too close.

The Tax proposition is likely to pass - this is the one former mayor Dan Sullivan supported.

The props look mostly yes.  The school bonds are not certain.  The Girdwood proposition looks shaky.  Marijuana tax is a landslide.

You can see the exact numbers for Assembly and School Board here.  And the propositions here.
(These links update, so the numbers you get will depend when you link.  I'm linking now to the 21:57pm edition.)

SB91, Anchorage Assembly, Public Anger Over Crime

I went to the Assembly public hearing Saturday October 8, 2017 to allow the public to give their opinions on Senate Bill 91 which was intended to curb the rise in prison population by cutting back many of the penalties for low level crime and by increasing rehabilitation for those convicted.  

Dick Traini

This is a state law and hearings were set in Juneau, but Anchorage Assembly chair Dick Traini felt most people wouldn’t testify in Juneau and had a special session in Anchorage which was videotaped     
The pictures are most of the people who testified when I was there.  I just wanted people to get a sense of the number of folks and a sense of what they looked like.  But I must say that a number of folks surprised me and reminded me not to judge people by appearances.    Everyone was civil, most were pretty rational and they focused on the facts of their experience with crime and the police response.










I missed the first 20 minutes or so, but what I heard was a lot of . . . anger was there, but mostly it was frustration.

Frustration that the reduced penalties of SB91 for many crimes under $1000 had been put in place, but not the rehabilitation.  So criminals know that nothing can happen to them, that police won’t bother for low level crimes.  Two different people told stories of people regularly taking power tools from big box stores and just walking out and employees are told not to do anything.  They have to just watch them get in their cars and go.  The speakers said this went to barter for drugs and/or other items.  One big box store employee said it happens daily and losses have been in the $800,000 per year range.

Lots of people complained about home break-ins and stolen cars where police didn’t come for hours.  Where they are told on the phone, “There’s nothing we can do.”

There was concern that sex workers wouldn’t report crimes because they, not the criminals would be arrested.

There was also testimony  from people who had served time or the children had and the importance of good rehabilitation to their lives.

Amy Demboski got credit from some for recognizing these problems early on.  And she said she wasn’t for abolishing SB 91, but for fixing it.

One man said there were three things that needed to be done:
1.  Rebuild Neighborhood watch
2.  Put God back into schools
3.  Bring back the death penalty

Most people were rational, had facts, and recognized this was a complex problem .  A few just wanted the repeal of SB 91, but most wanted it fixed - most notably that people convicted of crimes get rehabilitation, job training, and hope and help to find employment when they got out, so they aren't forced back to crime and drugs or alcohol.

There were maybe 100-150 people who were in the chambers during the 4 hour session.  Not that many, but they were all very passionate.  The Assembly listened carefully, sometimes asked questions.

During a break, I asked if there were any police in the room to hear the anger toward the police for not showing up for hours and for saying, “Our hands are tied, there’s nothing we can do” about people who committed crimes.  Later, Assembly Member Chris Constant said there had been a representative of the police department there for a while.

This past Tuesday, the Assembly passed a resolution that didn't call for a repeal of SB91, but did call for fixing it.  From KTUU:

"All members but Amy Demboski voted for changes only, specifically an increase in funding for alcohol and drug treatment, probation, police, corrections officers, and prosecutors.
“I’m afraid if we say repeal this it will not be revisited. I think these were very courageous legislators who did this and I don’t know that we have that now. After seeing this beat up no one is going to touch it again.
We’ll be back to a system that has simply failed and wasn’t working,” said Assembly Member John Weddleton.
The resolution also recommends restoring probation limits for some misdemeanor offenses, time that was cut down to less than a year under SB91. When it came to recommending a full repeal all members but Demboski felt it was better to fix what exists today."

Assembly Repeals New Labor Law. Mayor Vetoes Their Vote

Anchorage Assembly Meeting - click to enlarge

The Assembly voted 7-4 to repeal Assembly Ordinance 37 which squeaked by last year after Assembly Chair Ernie Hall cut off public participation.  The ordinance pretty much gutted collective bargaining in Anchorage and Ernie Hall nearly got voted out of office by a write in candidate who came within several hundred votes after joining the campaign two weeks before the election.   Some have argued this was similar to the anti-union ordinances that have been pushed by the Koch brothers in places like Wisconsin.  It was a hugely divisive ordinance. 

Tonight, after a lot of testimony, the Assembly voted 7-4 to repeal the old ordinance.  This was possible because Tim Steele was elected over appointed Assembly person Cheryl Frasca and because Adam Trombley and Bill Starr, who both voted for the original legislation, tonight said there were flaws in the bill and they were willing to work with others to make a better ordinance.   Trombley and Starr voted with Dick Traini, Elvi Gray-Jackson, Paul Honeman (who was there by teleconference), Patrick Flynn, and Tim Steele. 

You can see all the Assembly profiles here. 

Mayor Sullivan (r)

However, as soon as the bill passed, the Mayor immediately vetoed it and had his veto already written, printed, and ready to hand out. 

The no votes sounded pretty adamant about their votes and to override the Mayor's veto requires eight votes.



Here's the veto.  I saved it as very big file so you can read it easily if you click on it.

For me the big question is why did Starr and Trombley change their votes?  Both were strongly supported by the mayor and have voted with him on most if not all critical votes.    Both said they were willing to meet with those who so strongly opposed 37 and work out a better ordinance.

Yet I can't help think that after watching how Ernie Hall almost got beaten in the last election - by a write-in candidate no less - that they are looking out for the next election in April 2014 when their terms expire.  They can say to the unions that they voted to repeal the ordinance.  And if they did their homework and counted the votes, they knew that the ordinance would stay in place with the mayor's veto.  Starr comes from Eagle River which tends to vote pretty conservatively, so perhaps that isn't his motive.  On the other hand, I don't know how many union voters live in Eagle River and Municipal elections don't have that much of a turnout usually.  Trombley represents East Anchorage which is a lot more volatile and former state legislator Pete Petersen has already said he was going to run against Trombley.

I generally stay away from Assembly meetings.  The ones I've gone to have sucked a lot of blogger time out of me.  If I went regularly I'd have no time for anything else.  We went to the discussion on democracy and the role of government upstairs, and after we stuck our heads in to see how things were going.   So I'm not completely clear on the timeline of this.  But a petition to repeal Ordinance 37 got enough signatures.   In a video interview I did with Assembly member Dick Traini during a break in the meeting [see below], he said the Assembly plans to put the repeal measure on the April municipal ballot.  He also says the mayor plans to veto that, but he's sure the Assembly will win in court.  The elections are handled by the Municipal Clerk who works for the Assembly, not the Mayor.




But if the ballot included repeal of 37, then a lot of union folks are sure to vote.  Municipal elections - especially when there is no mayoral race - have turnouts under 20%.

So Assembly members Trombley and Starr had some incentive to repeal the measure already.  That would keep it off the ballot and not as many union members would vote.  And this way they can say they already voted to repeal it.

Interesting dynamics.

[UPDATE Jan 18, 2014:  Judge sided with the Mayor on his ability to veto the vote.]

When Is A Conspiracy Not A Conspiracy?

It's easy for people to take a few facts and jump to conclusions.   On election day, a man came into our polling place and exited the voting booth and asked why there wasn't an Assembly race on the ballot.  We hadn't notice that and at first were concerned.  But then we realized not every Assembly seat is up for reelection this year.

But he said that his wife, who has the same address, voted early at Loussac and she'd voted for an Assembly candidate.  We couldn't explain what happened at Loussac, but we checked and found out that he lives in Patrick Flynn's district and Flynn wasn't up for reelection.

But in checking things, I found a link on the Municipal Elections webpage that got me to all the different Sample Ballots (there were about 48 different ballots to take care of all the Local Road Service Area elections) and a list of each polling place which said which ballot was to be used at each polling place.

And as I looked at the sample ballots I saw the candidates for the Assembly races and School Board races.  As you can see, the School Board races are all city wide seats, so they all show up on every ballot.  Some of the Assembly races had only one candidate. (For the sake of space I left out JOHNSON, Jennifer)

ASSEMBLY - DISTRICT 5 - SEAT H  HONEMAN, Paul Write-in SCHOOL BOARD - SEAT A SMITH, Don DAVIS, Bettye Write-in SCHOOL BOARD - SEATB NEES, David W. CROFT, Eric CORNWELL-GEORGE, Stephanie Write-in

ASSEMBLY - DISTRICT 3 - SEAT D HALL, Ernie Write-in SCHOOL BOARD - SEAT A SMITH, Don DAVIS, Bettye Write-in SCHOOL BOARD - SEATB NEES, David W. CROFT, Eric CORNWELL-GEORGE, Stephanie Write-in

ASSEMBLY- DISTRICT 2 - SEAT A  MULCAHY, Pete DEMBOSKI, Amy LUPO, SCHOOL BOARD - SEAT A SMITH, Don DAVIS, Bettye Write-in SCHOOL BOARD - SEATB NEES, David W. CROFT, Eric CORNWELL-GEORGE, Stephanie Write-in

ASSEMBLY - DISTRICT 4 -SEAT F CLARY,Andy TRAINI,Dick Write-in SCHOOL BOARD - SEAT A SMITH, Don DAVIS, Bettye Write-in SCHOOL BOARD - SEATB NEES, David W. CROFT, Eric CORNWELL-GEORGE, Stephanie  Write-in

HTML Tables

As I looked at the contested races, the candidate order on the ballot  seemed to favor Mayor Sullivan's candidates.

Don Smith was first in his race with Bettye Davis.
Nees was first in his race against Croft.
Mulcahy was first in his race.  (All seemed to be Conservatives and I wasn't sure who was endorsed by the Mayor, but Mulcahy had been appointed to the Planning and Zoning Commission by the Mayor so that seemed a safe bet.)
Clary was first in his race with Traini.

Whoa! I thought.  I knew that the first position on the ballot gets an advantage at the polls, because a certain number of people, if they aren't familiar with the candidates in the race, will just vote for the first one.  The best way to deal with that is to rotate the order on different ballots.  Then each candidate is first on an equal number of ballots.
Not only were the ballots not rotated, but the Mayor's preferred candidate seemed to be on top in each race.

This had conspiracy written all over it.   But first, some of the research on positional advantage on ballots.


From Northwestern University's Kellogg School: 

"Specialists in the mechanics of voting have long recognized that the order in which candidates’ names appear on a ballot influences voters’ decisions. Typically, candidates listed at the top of a ballot earn a greater share of the vote than they would receive in any other position, regardless of their policies and personalities. Now research on voting patterns in local state elections coauthored by a Kellogg School researcher has taken the issue a stage further. It concludes that the first listing on the ballot also increases a candidate’s chances of actually winning office—by almost five percentage points."

Stanford Professor Jon A. Krosnick describes the positional effect and how they've demonstrated it:

"How do we know this? Well, consider this: In California’s 80 Assembly districts, candidate name order is randomly assigned. In 1996, Bill Clinton’s vote tally was 4 percentage points higher in the Assembly districts where he was listed first than in the ones where he was listed last — a difference that persisted even after we took into account pre-existing Democratic registration levels in the districts.
In 2000, George W. Bush’s vote tally was 9 percentage points higher in the districts where he was listed first than in the districts where he was listed last — again, persisting with registration taken into account."

He adds this note which suggests the magnitude of the impact:

"In Florida, for instance, candidates from the governor’s party get top billing, which is why in 2000 and 2004 George W. Bush was listed first on every ballot. (His brother, Jeb, was governor.) "

Other states, he adds, order their ballots in different ways.  Some require rotated positions, some require the previous winning party to be listed first, Minnesota requires the party with the least votes in the previous election to be on top.  Some do alphabetical by party, some alphabetical by candidate's last name. Some random. 


I looked up the state law:

"(6) The names of the candidates for each office shall be set out in the same order on ballots printed for use in each house district. The director shall randomly determine the order of the names of the candidates for state representative for each house district. The director shall rotate the order of placement of the names of candidates for governor, lieutenant governor, United States senator, United States representative, and state senator on the ballot for each house district."

But this gets complicated.  There was a Supreme Court decision in 1998 where a candidate sued the Division of  Elections because he was disadvantaged by having a lower place on the ballot. [If the link doesn't work, start here at the Supreme Court site, link Alaska Case Law Service, then click "By Party Name" and write in "Sonneman"] The case said that the State had switched from rotation to random order with a 1998 amendment.  From the Court's decision:

The amendment was recommended by the Lieutenant Governor's Election Policy Transition Team. Its report stated that the amendment would save “between $150,000 and $250,000 per election cycle.” However, the actual cost of ballot rotation in the 1994 primary and general elections was $64,024. The amendment was also intended to eliminate the confusion of voters who relied on single-order sample ballots and were confused when they found a different rotation of candidates' names on their actual ballots. The team also concluded that “[r]esearch indicates that the order of candidates' names on American ballots does not significantly influence voters.”

Sonneman lost his case.  The Court decided that since the order was random, everyone had an equal chance for the coveted first spot.  I couldn't tell if it had been changed back since and that was why it said rotational in the statute I found.  I was going to see if I could call up Sonneman to see if he knew, but I got his obituary.  I don't have the app that lets me call the departed. 

So I called the Municipal Clerk's office to find out how it was done in Anchorage.  She was ready for that call.

Later, I videoed Deputy Clerk for Elections Amanda Moser explaining how the order is determined so you can listen to hear and/or read below.




Names are placed on the ballot in random order.  They have a written procedure and, in fact, the Clerk, Barb Jones, and her staff, and the Municipal Ombudsman were there as witnesses.  Here's  the procedure:

Procedure for Letter Drawing
Anchorage Municipal Code 28.40.010  Form
C.    The names of all candidates for the same office shall be on one ballot with spaces for write-ins equal to the number of offices to be filled. For each municipal election, the clerk shall determine the random alphabetical order in which the candidates' last names are placed on the ballot, regardless of the office sought, by conducting a chance selection of each letter of the alphabet. The sequence in which letters of the alphabet are drawn shall be the sequence of letters utilized in establishing the order in which the candidates' last names appear on the ballot.

1. Ensure that all 26 letters are present
2. One person will draw a letter from provided container.
3. A second person will read aloud the letter drawn.
4. A third person will record the letter drawn.
5. The fourth person is an observer.
4. Continue until all the letters are drawn.
5. After all letters are drawn the Clerk and other observers will sign sheet provided.
6. The Deputy Clerk will post on the Municipal Website.

And here's a copy of the list they made when they did the drawing.  Note, the date was January 24, 2013.  That's before people filed to run for office.

So, for each race, once they had candidate names, they went through this list.  Any Q's?  No?  M's?  etc.  In one case they had two candidates running for the same School Board seat whose names began with C - Croft and Cornwell-George.  Which should come first?  O comes before R in the alphabet, but they had to use this chart instead of the alphabet.  If you check the list, R is number 20 and O is number 24.  So Croft came first.

And when I looked further into this, I found out that in Eagle River, Demoboski, not Mulcahy was the Mayor's favorite.  And on the ballots with Ernie Hall's race, there were actually two Assembly races because Harriot Drummond had resigned to take her seat in the State House.  In that race, when I checked, Tim Steele's name was before the Mayor's candidate Cheryl Frasca.


So, you ask, if nothing was wrong, why write this post?  A reasonable question.  Here are some reasons:
1.  Don't jump to conclusions. It's always good to be reminded that one should do one's homework and get all the facts before jumping to conclusions, especially negative conclusions.  It reminds us that we see what we are looking for instead of what's actually there.  This is a good example of that and finding out there was no conspiracy, even though, at first glance, my evidence pointed in that direction.  

2.  We should write about good things as well as bad.  When the media only report things that go wrong, we get an unbalanced sense of how the world is.  The Clerk's office had thought through how they were going to do this, wrote up a procedure, and did the order randomly before they even knew who the candidates were.  And when a blogger called them up to check on what they did, they were prepared for me.  Their foresight on this should be recognized.

3.  I had all this information.  I didn't want it to go to waste.  A lame reason, but I'm trying to be honest here.


Final Thoughts

If the bump in votes due to position on the ballot is as big as the research says, then that's a pretty good argument for rotating the names.  But I think the research also needs to tell us if there is a population threshold when it rotating the ballots makes sense.  In my polling place we used less than 20% of the ballots.  Even if the names had been rotated, would we have used enough ballots to get to a different name order?  Should different parts of town get a different order for the School Board races - since they show up on all the ballots?

And I still have to find out what the current state law is - random or rotational? 

About 5000 Votes Still To Be Counted In Anchorage Election

I talked to the Municipal Deputy Election Clerk (that means she works in the Clerk's office and is the Deputy Clerk in charge of the elections) Amanda Moser this morning.  I had two questions:

1.  How come there were already 2076 votes already posted on the 20:03pm unofficial election results?  [Those results are no longer available online, but I put them up at that link.]  Where were these votes from?

2.  How many votes were still to be counted?

Let me answer Question 2 first.  It's a much shorter answer and comes up again in Question 1. There are about 5000 votes to be counted.  These include absentee by mail that came in yesterday and today (and will trickle in for a few more days), absentee in person, and questioned ballots.  Absentee in person means people voted at one of the polling places, like Loussac library, before the election.  Questioned votes are for people who voted out of their precincts or didn't have ID, or other irregularity that caused the precinct worker to have questions about the voter.

Question 1:  What were those 2076 votes already counted before any of the precincts had brought their boxes to election central?

Amanda Moser told me that these were absentee by mail votes that the Clerk's office had received BEFORE Tuesday.  The office decided that since they had them already, it might be interesting to just get them up right away after the election, so people would have some numbers to look at as soon as the polls closed.  I didn't remember that from previous elections and Moser confirmed they hadn't done that in previous elections.

You can see those early numbers in my first post from last night.  They were much more conservative than the actual outcome.

ASSEMBLY - DISTRICT 3 - SEAT DPERMAN, Ira 40 11.66%DARDEN, Dustin 11 3.21%CROFT, Eric 114 33.24%TROMBLEY, Adam 178 51.90%Write-in Votes 0 0.00%

Trombley was leading with 51.9% of the vote among these early voters.

In the last count, he got 33% to winner Croft's 45%.

ASSEMBLY - DISTRICT 4 - SEAT FALLEVA, Ron 111 39.78%TRAINI, Dick 164 58.78%Write-in Votes 4 1.43%

This race ended up Traini 62% to Alleva 35%.  Not as big a change.  

ASSEMBLY - DISTRICT 5 - SEAT HDUNBAR, Forrest 188 45.97%GALES, Terre 219 53.55%Write-in Votes 2 0.49%

Gales went from 53% over Dunbar's 45%  in this first set of ballots to Dunbar 60% and Gales 39% in the latest count.  

ASSEMBLY - DISTRICT 6 - SEAT JSCHIMSCHEIMER, Mark 76 13.82%WEDDLETON, John 170 30.91%TAYLOR, Treg 301 54.73%Write-in Votes 3 0.55%

The latest count in this race has Weddleton ahead 43% over Taylor's 40%.  Weddleton leads by 290 votes.  There are 5000 or so votes yet to count city wide.  The total counted so far is 43,000 and this Assembly race had 10,800 votes, just under 25%.  So, there are maybe 1200 votes left to be counted from the absentee by mail and in-person votes.  For Taylor to win, he'd need to get 300 more votes than Weddleton.  It would have to be at least 750 to 450.  Or, put another way, he'd have to pick up 62% of the remaining votes.  (And there was one more candidate in the race I'm not even considering.)   That's highly unlikely.  He didn't even have that big a margin in this early vote that was clearly leaning right.  


SCHOOL BOARD - SEAT A
DAVIS, Bettye 840 44.03%
HUGHES, Brent 1050 55.03% Write-in Votes 18 0.94%

This one really turned around.  Davis won with 56% of the vote to 42%.  

SCHOOL BOARD - SEAT B
SCHUSTER, Kay 693 37.77%
NEES, David 604 32.92%
MARSETT, Starr 519 28.28%

I didn't even know who Kay Schuster was.  Her website is pretty bland.  But there was a Republican Women's fundraiser for her at McGinley's pub with supporters including former Mayor Sullivan.  Nees has run as a  conservative in the past.  

The last count had Schuster with 35% and Marsett with 34%.  

This one is still too close to call.  With 5,000 votes outstanding in this city wide race , Marsett would have to get 40% of the remaining votes.  Not as big a challenge as Treg Taylor has in his Assembly race, but still a formidable challenge.  Particularly if the remaining votes - mostly absentee by mail or in person - have any sort of conservative leaning as the first set of absentee by mail votes had.  


So, either conservatives are more likely to vote by mail, or the Republicans did a better job of getting their voters to vote by mail.  In either case, that first set of votes we got last night had a significantly more conservative tinge than the eventual outcomes.  

Some other issues from yesterday's elections came up in my conversation with Amanda Moser, but I need to review my notes more carefully before I post on that.  It involves aging voting machines and memory cards which caused machines not to read people's cards the first, second, or third times, and required some complete recounting for some precincts.


[Blogger notes.  When I realized that answering Question 2 first made more sense, why didn't I just make that one Question 1?  Good question.  I thought about switching the question numbers around.  But Question 1 really was my first question, the one that got me to call the Clerk's office to ask.  

I'd also note that I did contribute to two of the candidates mentioned in this post.  I know old time journalists got taught that to remain impartial, they shouldn't ever contribute to a campaign.  Some even believe they shouldn't vote.  I already had trouble as an academic about having to use language that imagined that I was some objective observer who had no opinions.  Of course reporters have opinions.  Some can step back and write reasonably objectively and some can't.   I think it's better to just state your biases up front and let the reader consider how that bias might have impacted the story.  

In this case, my reporting on specific races is as objective as it can be - just citing numbers and probabilities.  And where I mention loaded words like ' conservative' and 'liberal,' I'm not voicing any opinion that hasn't been voiced already by people seen as on the left or on the right.  So I don't think it's necessary to mention the specific candidates I wrote checks for.  Readers who need to know, can look it up on the APOC website. I doubt it will be a surprise to regular readers.]