The case of Rep. Ben Nageak, D-Barrow, vs. Lt. Gov. Byron Mallott and Director of Elections Josie Bahnke will start on Tuesday. Superior Court Judge Andrew Guidi has ruled that the trial must begin next week and end no later than Oct. 3 so that the Division of Elections will have proper time to mail ballots ahead of the general election.

Attorney Stacey Stone, representing Nageak, requested additional time to put together a comprehensive witness list, as rural witnesses must be both properly vetted and logistically organized, continue the discovery process, and issue the necessary subpoenas.

“The reality is that absentee voting starts on Oct. 24,” countered Assistant Attorney General Margaret Paton-Walsh. “That means ballots need to be mailed out by Oct. 17 which means we probably need a decision by the Supreme Court by Oct. 14.”

In order for that to happen however, Guidi would need to make a decision by Oct. 7.

“This sort of litigation is always expedited. That is something that the plaintiffs have to embrace when they file a lawsuit like this,” said Paton-Walsh.

“We assert that the Division of Elections violated the law,” said Stone. “Essentially they created this issue,” she added, referring to the need to expedite proceedings.

Tom Amodio, counsel for Dean Westlake, who defeated Negeak by eight votes in the Democrat primary after a recount, said his client supports the state’s position.

The District 40 race does not have another candidate for the seat, meaning the winner of the primary will be heading to the Legislature next year. The election was marred by improper distribution of ballots which included some voters being given both the Republican and Democrat ballots.

Bahnke, Nageak attorney Tim McKeever and Assistant Attorney General Elizabeth Bakalar all appeared in court by phone.

McKeever requested that a dozen “special needs ballots” — submitted by elders of Buckland — be forwarded so that his team may inspect the originals prior to the start of trial, specifically for unobscured signatures. The judge ordered that copies be forwarded and originals be sent via courier to the Department of Law.

Referring to the request as a fishing expedition, Paton-Walsh did not understand the concern, saying that redacted copies have already been provided.

“I don’t understand why they are particularly concerned about these ballots,” she told the Journal following the status hearing. “I don’t think there is any basis for suspicion about the special needs ballots at all.”

What happens next

House District 40 has various “absentee voting in person” locations that need to have ballots available by Oct. 24. If the case is not resolved by the Supreme Court by Oct. 14, Westlake will appear on the ballot, creating potential disenfranchisement, and at the very least, confusion on the part of voters if it turns out that Nageak is the actual candidate, Paton-Walsh explained to the Journal.

Furthermore, if there needed to be a special election because deadlines were not met, then it becomes an election where it’s just this one race on the ballot. In that case, she said, “far fewer people turn out to vote” as those who came out for the primary in August may not be able to come to a special election.

Stephanie Prokop can be reached at stephanie.prokop@alaskajournal.com.