Minutes of the Special Meeting to Certify the Election

Denali Borough Assembly

Tri-Valley Community Center

November 7, 2003




CALL TO ORDER    Presiding Officer Jim Caswell called the Special Meeting to order at 9:14 PM.


ROLL CALL               Assembly meeting members present were:  Jim Caswell, David Evans, Gerald Pollock, Bob Shelton, Cynthia Trytko, Baxter Mercer and Sid Michaels.


AGENDA                   The Chair entertained a MOTION to place Contest of Election as C1 on the agenda.  MICHAELS seconded.  The VOTE was unanimous.


                                    CONTEST OF ELECTION


                                    Denali Borough Attorney, Jim Gorski explained that Mr. Braun filed the Contest of Election affidavit on November 6, 2003.  The Borough staff got a copy to the attorney so that he could inform the Assembly if the Assembly chose to do an investigation.


                                    Mr. Braun’s challenge doesn’t quite fit what the challenges normally do.  In other words he is not challenging a particular seat nor is he asking for a recall it’s just a general complaint of discontent.  Never the less, since he filed it in affidavit form, the Assembly should consider it.


                                    Section II of Chapter 71 states the Assembly may order an investigation or a recount of the ballots or declare the election as to one or more of the offices for or propositions or its entirety invalid and order a new election or declare the affidavit of election contest without merit and certify the results of the election.


                                    Mr. Gorski discussed the affidavit.  Since Mr. Braun left early, it would be appropriate for Mr. Braun to get a response to his affidavit.


                                    Mr. Gorski stated that there is a lawsuit still pending and it has been languishing for a number of months and the ball is basically in their court.  The legal principal is that the Commissioner of Community and Economic Development considered the appeal that was filed by Mr. Braun and a number of other residents of the Borough after the Special Election of 2001.  The decision was to the effect that the reapportionment ordinance for the Assembly, approved by the voters, met the equal representation standards of the Alaska and U.S. Constitution.  As a consequence, barring any order from the court to stay the enforcement, which did not happen, the public process must go on.  That is the status of the reapportionment until such time as the court says otherwise and the matter is on appeal to the court right now.


                                    Item 1, 2, and 3 of the Affidavit:  Amendment XIV Section 1 of the United States Constitution providing for equal protection, Article 1 Section 1 of the Constitution of the State of Alaska providing for equal protection, Alaska Statute AS 29.20.060 A, B, C, and E providing for representation and prohibiting weighted voting are all currently before the court in litigation but has already been determined by the State of Alaska to be without merit.


                                    Items 4 and 5:  the Denali Borough assumption of education powers, it appears that in Denali Borough Ordinance 91-14 the Borough did assume education powers and the voters have been voting for School Board members ever since. 


                                    Item number 6:  29.10.200, what a Home Rule Borough can and cannot do.  He does not articulate, can’t find relevance there.


                                    Item number 7:  AS 29.35.400 simply says that the powers granted to the Borough are to be liberally construed. 


                                    Item number 8: AS 29.10.100 The Charter amendment simply says you must vote to amend the Charter, can’t see any relevance to this particular election.


Item number 9: the Charter of the Denali Home Rule Borough, Article XIV, Charter Amendment is just a restatement of law, again it doesn’t really identify anything with respect to this election or contest.


Item number 10: AS 15.05.020, identifies rules for determining the rules of the voter.  Again these are decisions made by the Clerk and historically have been made by the Clerk by your Code.  To the extent that something has been raised in respect to Mr. Caswell, this has been decided by this body and the Clerk and in the past.


Item number 11: As 29.20.020 is a restatement of the law simply stated the Assembly must adhere to the Open Meeting Act.  With regard to this election, there has been no violation to the Open Meeting Act.


Mr. Gorski continued stating; therefore, it is my belief that with respect to items number 1 through 11 of Mr. Braun’s affidavit, alleged violations of the law, I just don’t see us there.


Mr. Gorski asked the staff to go through their information and presentation addressing the other issues in the affidavit.


Mr. Gorski had one comment on paragraph 1 where it states in the affidavit that according to the Denali Borough Charter and Code, the Assembly and the School Board must be apportioned the same.  Mr. Gorski stated that it does not.  That it does not say that in the Code or the Charter. So there is no support for that statement.


Paragraph 1, Statement:  The following residents asked for and were given questioned ballots:


Answer:  Pieknik stated that Raymond Brooks and Catherine Brooks came up and asked for a different ballot. Therefore they voted a question ballot.  Nyberg stated that she was in attendance when this happened and that this is a true statement. 


Statement:  The following person was denied a questioned ballot:  Jenasy Jensen


Answer:  This statement is false because according to an election worker, Jenasy Jensen never asked for a question ballot.


Paragraph 2:  The following residents between MP 252.5 – 269 voted a MP 252.9 – 269 ballot and voted at the Healy Precinct.  The ballot consisted of Northern Assembly seats and West Central School Board seats per Borough Ordinance.


Answer:  One person on the list did not vote.  One person on the list came to the West Central District to vote and it was explained to him that his voting precinct was located at the Rochester Lodge and if he wanted to vote in the West Central District he would receive a questioned ballot.  The gentleman stated that he would go to his precinct and vote.  Witnesses to this event were Mayor Talerico and Amanda Nyberg.


Paragraph 3:  Statement:  The following persons were allowed to vote questioned ballots.  It mentions 5 people who voted questioned ballots at the Healy precinct.


Answer:  The Statement is true.


Statement:  The following persons were denied questioned ballots: 


            The statement mentions one person plus Mr. Braun.


Answer:  This statement is false.  According to the election workers, Mr. Braun asked for a McKinley Park ballot.  The election worker stated that they did not have McKinley Park ballots that he would have to go to the McKinley precinct to vote that ballot.  She also stated that he could speak with the Borough staff, which he never did.


Paragraph 4:  Statement:  The following (the affidavit mentions two people) voted in the East Central District when their residence is in the South District according to the maps used at the polls.


Answer:  According to the precinct register, they voted an East Central ballot and they are registered as living at Mile 224 Parks Highway.  According to the maps, Mile 224 is in the East Central District. Therefore, they voted the correct ballot.


Paragraph 5:  Answer:  According to the voter registration list prepared by the Division of Elections, James W. Caswell’s residency is Mile 216.5 Parks Highway, Cantwell, Alaska.


Paragraph 6: Answer:  The Denali Borough has seven separate and district precinct registers.  The Division of Elections prints the precinct registers and they are correct.


The Clerk’s explained that each polling place is given precinct registers of the people that are registered to vote in that district. This is produced by the State of Alaska. There is the West Central precinct register and this register is placed in Healy, there is a Mile Post register, which includes Mile Post 262.5 – 269, and these are for the people who live in that area.  The Mile Post register is placed at the Healy polling place. Their ballots include the Northern Assembly members and the West Central School Board seats.  There is an Anderson North and a Clear North.  Their polling place is at the City building in Anderson and at the Rochester Lodge respectively.  This is to follow the State of Alaska polling places.  Both registers cannot be at both polling places because people could then double vote.  There is a South register.  The South register is placed at the Cantwell polling place.  The East Central has two precinct registers.  One register is titled Denali Park/East Central and the other is East Central.  The ballots are the same.  This goes back to when the State had a Denali precinct.  The precinct registers are both kept at the McKinley precinct.


Mr. Gorski explained that the Denali Borough’s Districts are different from the State of Alaska’s District’s and therefore we have different precinct registers.  The Denali Borough must use the same voting precincts as the State of Alaska.


Paragraph 7 and 8:   Mr. Gorski stated that Mr. Braun has challenged the drafting of the maps by Mr. Venechuk.  Mr. Venechuk has prepared a legal description of where the boundaries are for the various districts.  Mr. Gorski continued stating that we have asked for maps from Mr. Braun to substantiate his complaint and we have been waiting two months for something from him and nothing has been forthcoming.  We did get a map with colored districts but we couldn’t tell where the voting districts were or what census blocks were in the colored blocks.


Mr. Gorski continued discussion on Mr. Braun’s comment about the fact that he (Mr. Braun) has exhausted administrative remedies. Mr. Gorski stated that indeed Mr. Braun has. 


MICHAELS MOVED to declare the Contest of Election without sufficient merit and to proceed to Certify the Election.  MERCER seconded. 


MERCER stated that the motion stated that there wasn’t sufficient merit.  There are some parts that he agrees with Mr. Braun that people are voting in the wrong places, for whatever reasons, and the maps are hard to understand.  When we amended the Charter, when we changed the Borough boundaries, it wasn’t written that way on the ballot. It should have said a Charter amendment.  He agrees that he didn’t present sufficient grounds to Contest the Election on what he’s got, but there are some points that need to be cleared up.  So he would not vote to appeal or oppose. The roll call vote was unanimous.


MICHAELS MOVED to Certify the Election results as presented to us by the Canvass Committee. TRYTKO seconded.  The roll call vote was unanimous.


ADJOURN                 The Chairman declared the Special meeting adjourned at

                                    9:50 PM.       




                       Borough Clerk                                                   Presiding Officer