The group challenging the integrity of the April 4 Anchorage citywide election sent a May 23 notice to the Anchorage Assembly urging the elected representatives to seriously consider their allegations that the election may have been compromised by “malconduct.” In a 9-3 vote at its May 23 meeting the Assembly rejected any consideration of these concerns.

Sent to the Assembly on May 23 by Attorney Joe Miller, who is providing counsel for the election challengers, the notice states the following:

Given the Clerk’s May 16, 2023, Report addressing the substance of the May 4, 2023, Notice of Election Contest (“Notice”), the Anchorage Municipal Assembly (“Assembly”) may be tempted to go straight to the merits of the proposed Election Contest. But that would be premature. Rather, the Assembly should instead determine whether Petitioners have alleged sufficient grounds for an Election Contest and, if so, vote to hear it.

In other words, the Assembly should determine whether, on the face of the materials from Petitioners, they have alleged a case of “[m]alconduct . . . of an election official sufficient to change the result of the election.” Anchorage Municipal Code (AMC) 28.100.010A1.

Petitioners submit that their allegations squarely satisfy the legal prerequisite for an Election Contest.

Petitioners’ Notice states that there “were 235,564 eligible active registered voters for the April 4, 2023 [mail-in] municipal election.” It further states that “actual ballot packages were sent to [only] 201,029 registered voters,” a difference of 34,535, or over 15% of the registered voters in the Municipality of Anchorage. It is a matter of record that only several hundred votes separated candidates in several assembly races, and other candidates were separated by only a few dozen votes.

No municipality-wide candidates were separated by more than 10,000 votes. This was a “mail-in election” where an enormous number of registered voters were never mailed ballots, a much greater percentage than has been seen in past elections.

Petitioners have clearly alleged sufficient votes at issue “to change the result of the election.”

The second question that the Assembly must answer is whether “malconduct” on the part of election officials has been alleged by Petitioners. “Malconduct” is not defined in Code and is not generally used in common parlance. However, “mal” is derived from the Latin word “malus,” meaning “bad.” So, literally, “malconduct” means “bad conduct.” The Century Dictionary expands on this literal definition, explaining that “malconduct” means “[w]rong, faulty, or improper conduct; especially, maladministration of public affairs: as, malconduct in office.”

Petitioners submit that it was wrong, faulty, bad, improper and/or a maladministration of public affairs for municipal election officials to not send ballot packages to all eligible active registered voters in a broadly-advertised “mail-in” election.

Given the very small percentage of in-person votes in mail-in elections, it is transparent that failing to send ballot packages to all eligible active registered voters results in fewer voters not casting votes in a mail-in election. Petitioners allege that this failure is bad administration by municipal election officials, chiefly Election Administrator Jamie Heinz and her supervisor, Municipal Clerk Barbara Jones (collectively, “Election Officials”).

Whether such Election Officials have a defense to this prima facie case of malconduct is, yet again, subject to the Election Contest.

Importantly, Petitioners spent significant effort prior to filing their Notice trying to determine why the Municipality failed to send ballot packages to tens of thousands of eligible active registered voters. What they discovered reflects even more malconduct by Election Officials, including the following: (1) failure to maintain an accurate “voters receiving ballots” list (“VRB list”). By the Clerk’s admission at the Public Session of Canvas on April 20, 2023, the VRB list includes numerous errors including duplicate names and bad addresses; (2) removal of the unique identifier (ascension number) assigned to each name in the State of Alaska Division of Election database. Election Officials report that they use that database to determine which voters are to receive ballots, but their removal of the ascension numbers only serves to prevent public oversight of Election Officials’ decisions regarding the distribution of ballot packages; and (3) refusal to provide transparency regarding why ballots are sent to some voter and not others, claiming that disclosure would endanger “critical infrastructure.”

To reiterate, attempting to assess the merits of a future Election Contest at this stage is improper. This is acknowledged by the Assembly Informational Memorandum for today’s Assembly Meeting which states that “members . . . may not ask about the substance of the matter” when considering whether to vote to hear the Contest. However, Petitioners contend that even mere consideration of the merits is improper at this stage since no sworn testimony has been submitted in response to their allegations. In other words (and with all due respect), the Assembly should completely disregard the Clerk’s unsworn May 16, 2023 Report.

As Petitioners have alleged sufficient grounds for an election contest under AMC 28.100.010, the Contest should be heard by the Assembly. A transparent process, consistent with the Code, will help restore faith in the election process and municipal institutions.

The meeting begins at 5 p.m. The election challenge is listed as item 12. Click here for meeting details.TAKING ACTION — Click here to contact Anchorage Assembly members.Click here to support Alaska Watchman reporting.