What's Wrong With Judge Guidi's Decision That Ben Nageak Should Be The District 40 Democratic Candidate?

In Friday's ADN a Nathaniel Herz article reports that Judge Guidi overturned the house district 40 election, deciding that Ben Nageak should have won.  Based on that article* I have some problems with the decision.

Map of house district 40 from elections website, I added Shungnak

Let's look at the key points I have issues with.

"But in the small Northwest Alaska village of Shungnak, which went 47-3 for Westlake, Guidi found poll workers acted with 'reckless disregard of the requirements of law. . .'

. . . And Randy Ruedrich, the former chairman of the Alaska Republican Party, testified on Nageak's behalf as an expert witness during the trial. 

Guidi's decision, in fact, hinged on an analysis by Ruedrich of how the double voting in Shungnak affected the outcome of the election. . ."

Note, we have a long-time Republican Party chair working on behalf of one of the Democratic candidates.  That's because while Nageak is a Democrat, he caucuses with the Republicans, which is why the Democratic party supported his opponent, Dean Westlake, in the primary.

"Westlake had his own witness — his campaign manager, John-Henry Heckendorn — but Guidi wrote that Ruedrich's testimony was more "authoritative and reliable." And in his decision, Guidi calculated 12 "contaminated votes" in Shungnak should be thrown out — 11 for Westlake and one for Nageak, based on the existing split in votes between the two candidates."

I would grant that Ruedrich is more knowledgable about voting in Alaska.  He's a very bright man and has spent many years studying districts and precincts around the state.  He was very much involved with the redistricting process in the most recent redistricting and in past ones.  Few people know Alaska elections like Ruedrich.

However, I would argue that Ruedrich isn't acting as a political scientists here, studying the facts and coming up with the most reasonable interpretation and solution.  Rather he was acting as a strong political partisan, finding a scheme that would sound reasonable to the judge, that would result in his favored candidate winning the election.

In fact, were the vote counts switched, and Westlake had challenged Nageak using the same argument Ruedrich used, Ruedrich would have argued against that reasoning, because Ruedrich's goal is to find an argument that will get his candidate elected, not one that is most reasonable.  (And as a party operative, that's what he ought to be doing and it's the judge's job to decide.)

Citing Ruedrich's testimony, Guidi ruled those dozen voters would have picked the Republican ballot — on which Nageak and Westlake didn't appear — based on historical averages."

Here's the part I have the most heartburn with.  Perhaps there were a dozen Republican voters in Shungnak.  But there were no house candidates on the Republican ballot.  The most contested election in the primary, the only one on which the voters of Shungnak might make a difference, was the Democratic** primary. It was the only race where voters in Shungnak could make a difference.

Republicans in Alaska are allowed to vote on the Democratic ballot.  The 'historical' 12 Shungnak Republicans knew they would have no impact on any of the statewide Republican primary contests.  The odds are that they all would have picked Democratic ballots so they could vote in the district 40 house primary.  But, Ruedrich would point out, there was no Republican ballot in 2014 or 2013 and still about a dozen people voted Republican.

I would counter that this was NOT like other 'historical' elections.  In 2012 there were four candidates on the Democratic ballot and Nageak won by four percentage points over the runner up.  In 2014, he beat Westlake by nearly 7% of the vote.  While these aren't landslides, they're comfortable margins.

What was significantly different this year was that the Republicans were backing Nageak and the Democrats were backing Westlake in the primary.  A lot of money was spent on this election.  It had a lot more publicity than in the past.  There was a candidate who was nominally a Democrat, but was had been caucusing with the Republicans and would in the future.  His opponent was going to caucus with the Democrats.  This was NOT by any stretch a typical election where 'historical average' ought to be used.

From what I can gather from the article, Judge Guidi has disenfranchised those 12 Republican voters in Shungnak.  Maybe they would have taken a Republican ballot.  But maybe not.

• They had the right to vote in the Democratic primary
• They chose their preferred candidate
• Any votes on mistakenly given out Republican ballots would have had no effect on any of the state wide primary races

 Since they had the right to vote in the Democratic primary why should their votes be taken away?

Why would Guidi choose to invalidate the Democratic ballots rather than the Republican ballots which Shungnak's Democratic voters had no right to use?

Furthermore, the reasoning Ruedrich used, if I read Herz' article correctly, and he reported correctly, was that we should look at how they voted in the past.  

By that logic, we could skip elections altogether, and just go by what voters did in the last election.  

I understand Judge Guidi's concern about election workers giving everyone both ballots.  That's totally unacceptable.  But so is Guidi's decision.

Essentially, Guidi disenfranchised 12 Shungnak voters.  

If he truly believes the results were tainted by giving out both ballots to all voters, the only fair option is to let both candidates run against each other once more in the general election where more voters are likely to vote.  Since there were no Republican primary candidates, or any other party candidates, this would pit Nageak against Westlake against each other once again.  One could argue that's unfair to the original winner Westlake, but it's a lot fairer than Ruedrich and Guidi second guessing the voters of Shungnak.  

If there had been a Republican candidate, this would have been a messy solution.  But there isn't so this would be the cleanest option if you truly believe that the primary was tainted.  

Now it's up to the Alaska Supreme Court to decide how this election will go.  

[UPDATE October 13:  Yesterday the Supreme Court threw out Judge Guidi's decision and Westlake will go to Juneau representing District 40.]

*Since I'm taking an online class called Journalism Skills For Engaged Citizens, I'm acutely aware that this post would have been stronger had I gotten a copy of the judge's decision and not just relied on the article.  I tried.  I did get to the case online, but couldn't figure out how to get a copy of the decision.  And it's after hours so I can't get help.  Next time I'll do better.

**I use Democratic primary, but technically it's called the ADL primary.