Fischer v. Stout

741 P.2d 217, 1987 Alas. LEXIS 283
CourtAlaska Supreme Court
DecidedAugust 7, 1987
DocketS-1953
StatusPublished
Cited by22 cases

This text of 741 P.2d 217 (Fischer v. Stout) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fischer v. Stout, 741 P.2d 217, 1987 Alas. LEXIS 283 (Ala. 1987).

Opinion

OPINION

Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.

BURKE, Justice.

This is an election recount appeal filed pursuant to AS 15.20.510. 1 The principle issue is whether certain votes or classes of votes were properly counted or rejected in the November 1986 election for the state senate in Senate District H.

The election results were certified on November 24, 1986. Republican candidate Rick Uehling was declared the winner with 6,730 votes. The incumbent, Victor Fischer, who received 6,715 votes, requested a recount. Following the recount, Uehling was again declared the winner with 6,738.5 votes to Fischer’s 6,721.5. 2 Fischer then filed the instant appeal 3 and Uehling cross- *220 appealed on certain issues. On January 16, 1987, we issued an order vacating the certificate of election declaring Uehling the prevailing candidate and remanded the matter to the Director of Elections (Director) for a partial further recount. 4 We indicated at that time that an opinion would follow.

I. SCOPE OF REVIEW

On December 4, 1986, following Fischer’s request for a recount, a meeting was held between the Director, Fischer, and Uehling wherein it was explained to the candidates that they would have until December 6, 1986 to make specific challenges to specific ballots or any challenges would be deemed waived. Both candidates appeared to understand these instructions and neither objected to the deadline. Both candidates did submit written comments and ballot challenges by December 6 but, despite the fact that the deadline had passed, Fischer later challenged at least thirty-six additional ballots.

The Director urges us to limit our review in this recount appeal to those individual ballots specifically challenged by December 6, 1986 under the specific error alleged at the time of the challenge. In effect, the Director argues that our review authority under AS 15.20.510 is limited to a review of those ballots upon which the Director has actually made a specific determination. Alternatively, she asserts that Fischer has either waived any challenges not raised by December 6 or that lack of notice should prevent Fischer from asserting new challenges not listed in his original complaint.

While he neither admits nor denies that he has raised new challenges, Fischer argues that candidates are entitled to submit materials for consideration up until final certification of the recount. Any establishment of a deadline, Fischer asserts, is arbitrary and unsupported by statute or regulation. Fischer’s argument is persuasive.

We are unaware of any specific legislative or-administrative pronouncement providing the Director authority to set deadlines for submission of specific ballot challenges. Consequently, the December 6 deadline will not be given effect. While imposition of the Director’s deadline may well have been wise and expeditious, streamlining the recount and providing faster certification, we will not imply from the legislative and administrative silence an intent to provide the Director with the authority to arbitrarily limit the scope of a recount. 5

Our obligation under AS 15.20.510 is to determine whether a “vote was cast in compliance with the requirements of Alaska’s election law.” Willis v. Thomas, 600 P.2d 1079, 1082 (Alaska 1979). 6 That obligation may not be discharged by a limited review of the Director’s specific determinations, but must extend to a review of all ballots questioned on any basis. Accordingly, we hold that our obligation under AS 15.20.510 is to review any and all questioned ballots cast in the election at issue, regardless of whether they were or were not specifically challenged below.

II. BALLOT CHALLENGES: FISCHER

a. Punch-Card, Ballots

Fischer complains of the Director’s decision to count or reject certain punch-card ballots based upon the methods used to mark those ballots. There are eight such ballots, five called for Uehling and three called as blank. In each of these challenges we must examine the ballot to determine whether the voter’s intent can be adequately identified. Willis, 600 P.2d at 1084-85; Hammond v. Hickel, 588 P.2d 256, 274 (Alaska 1978). We conclude that the Director’s call in each case was correct.

*221 Fischer also challenges one ballot, called for Uehling, upon which the voter signed his or her name. Fischer argues that this ballot should have been declared a “spoiled ballot” and destroyed pursuant to AS 15.15.280 — .300 (declaring “spoiled” ballots which have been “exhibited”). We are unable to agree that this ballot was “exhibited” within the meaning of AS 15.15.280 —.300. Accordingly, we affirm the Director’s determination.

Finally, Fischer challenges two ballots, called for Uehling, which were marked entirely with a pen rather than punched. Fischer claims these votes should not have been counted because there was a punch-card machine available. Neither AS 15.15.-360 (rules for counting hand-marked ballots) nor AS 15.20.730 (rules for counting punch-card ballots) require voters to use a punch-card machine if one is available, but only specify the manner of counting properly punched and hand-marked ballots. Moreover, in Hammond, we held that punch-card ballots marked entirely by pen or pencil instead of punched were valid because they provided clear evidence of the voters’ intent. 588 P.2d at 274. Accord, Willis, 600 P.2d at 1084. The voters’ intent on these challenged ballots is clear. Accordingly, we affirm the Director’s decision.

b. Absentee Ballots: Voter Residence in Question

Voters in state and local elections must be residents of the election district in which they vote. Alaska Const, art. V, § 1; AS 15.05.010(4). A person’s residence is that fixed place of habitation to which the individual intends to return if absent. AS 15.05.020(2). It need not be a house or apartment. It need not have mail service. A residence need only be some specific locale within the district at which habitation can be specifically fixed. Thus, a hotel, shelter for the homeless, or even a park bench will be sufficient. See Pitts v. Black, 608 F.Supp. 696 (S.D.N.Y.1984); Collier v. Menzel, 176 Cal.App.3d 24, 221 Cal.Rptr. 110 (1985).

Fischer contests the ballots of five voters who listed as their residence address only “Elmendorf Air Force Base.” Elmen-dorf Air Force Base is a bounded area wholly within Senate District H. Thus, merely listing “Elmendorf Air Force Base” is sufficient to fix a voter’s residence to a specific locale within District H. These votes were properly counted.

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741 P.2d 217, 1987 Alas. LEXIS 283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fischer-v-stout-alaska-1987.