Federal judge asks question of higher court

Posted: Tuesday, April 22, 2003

ANCHORAGE (AP) -- A federal judge in Anchorage wants a three-judge panel from the U.S. Ninth Circuit Court to consider what action to take in a lawsuit challenging a new election law in Anchorage.

The lawsuit challenges a measure that lowers the minimum proportion of votes needed to win the mayor's office from more than 50 percent to more than 45 percent.

U.S. District Judge James Singleton sent a critical question about the law to the higher panel Monday.

Mayoral candidate Mark Begich, a former Anchorage assemblyman, won the April 1 election with 18 votes more than the 45 percent needed to win. Incumbent George Wuerch got 37 percent and has requested a recount, which began Monday.

Attorney Ken Jacobus filed the lawsuit on behalf of client Deborah Luper. The suit claims that Ballot Proposition 2 is not valid because it did not get a mandatory review by the federal government before the election. The city has since applied for an expedited review by the Justice Department, the Anchorage Daily News reported.

''It seems to me this is more a tempest in a teapot than serious litigation,'' Singleton said early in a hearing Monday afternoon.

The judge said all case history suggests that the Department of Justice will approve the change and case law suggests federal review after the fact is acceptable.

The plaintiffs' attorneys, Jacobus and Stephen McAlpine, who is working for Wuerch's campaign, argued that the question should go to a panel of three judges. Under the 1965 Voting Rights Act, only such panels, not a single judge, could overturn the vote on the proposition.

In the meantime, Jacobus said, Singleton should prevent the change from taking effect, a move that would mean a runoff between Begich and Wuerch on May 6.

But Singleton said he does not have that authority. Thus his recommendation a 9th Circuit panel to consider what action to take on Proposition 2. He said rulings from the U.S. Supreme Court say that until such a panel makes a decision, the status quo -- in this case the 45 percent standard -- stands.

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