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HomeMy WebLinkAbout10122020 City Council Laydown - Mail Ballots 30r0 I LA-nowt MAIL bA (.(5T_s Brenda Ballou From: Brenda Ballou Sent: Monday, October 12, 2020 4:28 PM To: bballou@cityofseward.net ('bballou@cityofseward.net) ('bballou@cityofseward.net') Subject: Tonight's Council Meeting Agenda - Please remove Election Results from Consent Attachments: 20201012 City Attorney Memo re One witness instead of two.pdf; By Mail Ballot Envelope - Back Side BLANK.pdf Mayor&Council, Please remove the Certification of Election Results from the consent agenda tonight. Reason being,there were five (5) ballots that were rejected by the Canvass Board for having one witness signature rather than two (which is something stated on the envelope, but not defined in city code). One of those voters submitted a complaint in writing, stating that they believe one witness signature should be sufficient and that all five ballots should be counted. I requested advice from the city attorney,and received the attached memo in response. I concur with his recommendation. Can one of you please make the motion: "I move to order a recount of the five absentee ballots rejected for having one witness". If that motion passes, council would then appoint the recount board (SCC 4.05.130). Members of the original canvassing board are eligible to be on the recount board. I have contacted members of the Canvass Board and there are at least three that are available to reconvene as early as tomorrow morning, if council wishes. The recount board for those five ballots must convene quickly, and then we must also schedule a special city council meeting to certify the election very quickly thereafter.SCC 4.05.125 (a) says the election has to be certified nnot later than one week following the canvass, so that would be Thursday this week.The code doesn't indicate that if council orders a recount we gain more time to certify, so I'm assuming a one week deadline (unless the attorney says different). Further, in order to avoid having this situation ever reoccurring, I would like to receive council direction on ONE of the following choices: • Direct the city clerk to obtain new ballot envelopes that require only one witness signature and destroy any existing stock of the old envelopes, OR • Direct the city clerk to bring forward an ordinance to change city code to create the requirement of having two witness signatures over the age of 18 years, when an authorized officiant is not available Thanks for your help with this! Thanks, Brenda Cc: City Attorney,City Manager, ACM BRENDA J. BALLOU, MMC CITY CLERK PUBLIC INFORMATION OFFICER NOTARY PUBLIC 1 BOYD, CHANDLER, FALCONER & MUNSON, LLP ATTORNEYS AT LAW SUITE 302 911 WEST EIGHTH AVENUE ANCHORAGE, ALASKA 99501 TELEPHONE:(907)272-8401 FACSIMILE:(907)274-3698 bcf@bcfaklaw.com MEMORANDUM TO: Brenda Ballou City Clerk 6--S -490'3 CacA-00--- FROM: Brooks W. Chandler, City Attorney RE: Witness Requirements for Absentee Ballots DATE: October 12, 2020 You asked us to review absentee ballot witness requirements of city code to determine if absentee ballots rejected for not having two witnesses should have been counted. Based on our review of applicable city code provisions we have concluded the answer is YES. Based on this conclusion we have the following recommendations: 1. Election results should not be certified. 2. The city council should appoint a 3 person recount board and order the recount board to: a. count absentee ballots previously rejected for not having two witness signatures b. prepare a new tally of the election results after the additional ballots are counted. The reasons for this conclusion and recommendations are set forth in greater detail below. FACTS The City of Seward allows voters to vote by mail using absentee ballots. After the voter marks the ballot it is inserted into an envelope. The outside of the envelope requires the voter to supply either a social security number or a voter identification number. The voter must sign a certification declaring they; 1) are a qualified city voter; 2) are entitled to vote; 3) personally marked the ballot(unless prevented by disability); 4) have not shown their marked ballot to any other person; 5) have not asked for an absentee ballot from any other city; and 6) are not voting Witness Requirements for Absentee Ballots October 12,2020 Page 2 in person. The envelope also contains this statement: If I had this certification attested by a witness other than an authorized official, it was because no official empowered to administer an oath was reasonably available The envelope states"YOUR SIGNATURE MUST BE WITNESSED" and an arrow points to two forms called WITNESSING AFFIDAVIT--- OPTION 1 and WITNESSING AFFIDAVIT OPTION II. The OPTION I form has a space for an"official authorized to administer an oath"to sign. The OPTION II form has two"Witness Signature"lines and says,"If no authorized official is reasonably available,your certification may be witnessed by two persons over the age of 18". The City of Seward held a municipal election on October 6. Five voters submitted absentee ballots inside envelopes with one witness signature in the OPTION II witness form. These votes were rejected by the canvassing board at its meeting on October 8. Also on October 8, the five member canvassing board submitted the Final Certificate of Results for the City of Seward Regular Municipal Election". On October 9 the city clerk notified voters whose absentee ballots were rejected. The notice stated"Your ballot was witnessed by only one person, instead of the two required witnesses". Rejected absentee ballots remain unopened in the envelopes in which they were submitted. It would be physically possible to identify by mail absentee ballots rejected for having one signature and open and count those ballots. Two council members were elected from amongst 4 declared candidates. The Final Certificate shows the second council member elected received 245 votes with the third place candidate receiving 191 votes. Official certification of these results is on the consent agenda for the October 12,2020 city council meeting. LAW A. Seward Municipal Code 1. Absentee Ballots. SMC 4.10.030 governs absentee voting by mail. SMC 4.10.030(d) states: Upon receipt of an absentee ballot by mail,the voter, in the presence of a notary public,commissioned officer of the armed forces including the National Guard, 'Most commonly a notary public. Witness Requirements for Absentee Ballots October 12,2020 Page 3 district judge or magistrate,United States postal official,or other person qualified to administer oaths,may proceed to mark the ballot in secret,to place the ballot in the small envelope, to place the small envelope in the larger envelope in the presence of an official and will date his signature. If none of the officials listed in this subsection are reasonably accessible, an absentee voter may have the ballot witnessed by a person over the age of eighteen. (Emphasis supplied) The process of counting votes is governed by Section 4.05.115. Subsection(b)(1)places responsibility for judging"applicability of absentee and questioned ballots"with the canvass board. Subsection( c) states: (1) No questioned or absentee ballot shall be counted if the voter has failed to properly execute the certificate,if the witness or the officer or other person authorized by law to administer the oath fails to affix his signature, or if the voter fails to enclose his marked ballot inside the small envelope provided. (Emphasis supplied) 2. Procedure for Certifying or Contesting Election Results. The city council meets within a week of the election"to certify the election or order a recount or investigation of the election."SMC 4.05.125. Recounts are based on claims of a mistake made by"a defeated candidate or ten qualified voters". The claim of mistake must be submitted in writing by 5 pm on Monday October 12. SMC 4.05.130(a). If such a complaint is received,the council"shall appoint a recount board of three or more qualified voters to,as soon as possible,conduct the recount of ballots of those precincts cited in the application for recount". SMC 4.05.130(c). If the recount fails to reverse the election results those requesting the recount when the difference between the wining and losing votes is more than two percent are responsible for the recount costs. SMC 4.05.130( e). In addition to or as an alternative to a recount a defeated candidate or ten qualified voters can contest election results based on"malconduct, fraud,or corruption of an official sufficient to change the result of the election"or"existence of a corrupt election practice as defined by the laws of the state sufficient to change the results of the election". SMC 4.30.135(a)(1),(3). An election contest also requires a written statement contesting the election to be delivered by 5:00 p.m. on Monday October 12. If a written contest is received,the council"shall order such investigating action as it deems appropriate." SMC 4.30.135(c). Defeated candidates or a group of ten voters can appeal the results of recounts or election investigations to Superior Court. SMC 4.05.130(f),4.05.135(f). Witness Requirements for Absentee Ballots October 12,2020 Page 4 B. Court Decisions We are not aware of any Alaska decision allowing an individual voter(as opposed to a group of voters)to obtain a recount or initiate an election contest. The Alaska Supreme Court decisions hold that even if state law has been violated in a "significant manner",an election will not be voided and a new election ordered to be held unless it is shown that the violation of the law was sufficient to change the election results. The mere fact that a violation of the law"impeached the integrity of the election process and placed the true outcome in doubt"is not sufficient to overturn the results of an election. E.g., Hammond v. Hickel, 588 P.2d 256,260(Alaska 1978). See also, Boucher v. Bomhoff, 495 P.2d 77, 80-81 (Alaska 1972). In the Hammond v. Hickel case,which arose out of an extremely close primary election between Walter Hickel and Jay Hammond for governor,the irregularities included the following: 1. Discarding of all ballots that had been voted in entire villages and submission only of summary sheets of election returns. 2. Giving 2,000 questioned ballots to a 17-year old boy,who took them home and left them in his car overnight before driving back to the elections office the next day. 3. Misplacing 247 questioned ballots from a district in Anchorage. The existence of these misplaced ballots was not discovered until after the certification of the primary election nominees had been made. 4. The discovery of a bag of ballots in Juneau 11 days after the completion of a recount. 5. The counting of votes cast by 57 unregistered voters. 6. Improperly counting 38 additional ballots. 7. Denying two voters the right to vote. 8. A difference between the number of ballots cast and the number of signatures on the voter registration list. 9. Numerous other alleged irregularities, including computer breakdowns during the count of punch card ballots, early counting of punch card ballots,handling of absentee ballots and allowing 532 voters working in Prudhoe Bay to have"personal representatives"(who were really union officials)obtain absentee ballots on their behalf. Witness Requirements for Absentee Ballots October 12, 2020 Page 5 Despite these departures from correct election procedure,the election results were upheld by the Supreme Court. The Hammond v. Hickel case is an excellent example of the amount of things that can go wrong during an election. It also is an excellent example of the extreme reluctance of a court to overturn the results of a close election,based on things being done incorrectly in the conduct of the election. On October 5,2020 Superior Court judge Dani Crosby entered an order requiring the State of Alaska to eliminate the absentee ballot witness requirement for the November 2020 election2. An appeal from that order is being heard this afternoon by the Alaska Supreme Court. It is likely to be overturned based on the United States Supreme Court decision issued last week staying a similar injunction order issued to the State of South Carolina.3 ANALYSIS The absentee ballots witnessed by one person should have been counted. There is no provision of city code requiring two witnesses to a by-mail absentee ballot. Instead city code uses the phrases"a witness" and"the person". This language of the code cannot be changed by the language on an envelope. If the city wishes to require two witnesses a code amendment is required. The city council is not legally required to order a recount unless the error identified above is the basis of a formal request for a recount from either a defeated candidate or ten qualified voters. That is a reasonable requirement of city code designed to favor finality of election results and to limit the situations in which a recount is legally required. If ten voters or a defeated candidate request a recount because of the rejected absentee ballots we recommend the city council waive the expense obligations of SMC 4.05.130(e). Whether the city council has inherent authority to order a recount could be viewed from two perspectives. On the one hand,nothing in code prohibits the council from ordering a recount on its own. On the other hand, nothing in code recount provisions mentions the city council initiating a recount in the absence of a request from ten voters or a defeated candidate. And the intent of the recount and election contest provisions in the code is to limit the situations in which a recount occurs. RECOMMENDATION Z Arctic Village Council League of Women Voters v.Meyer,Case No.3AN-20-07858(October 5,2020 order granting preliminary injunction)(appeal pending). 3 Andino v.Middleton,Case No.20A55(October 5 order staying grant of injunction). Witness Requirements for Absentee Ballots October 12,2020 Page 6 In this instance, the improper exclusion of five absentee ballots cannot possibly impact the outcome of the election. The law does not require a perfectly conducted election and the city is not liable to individual voters for errors in the count of absentee ballots. However,we believe an individual right to vote is the foundation of a democratic system of government. Counting 5 ballots and recomputing the tally of election votes is a relatively simple task. The delay of certifying the election results can be minimized through a special city council meeting. Where errors are obvious and easily corrected, we believe Council should make the effort to ensure every eligible vote is counted and included in the election tally and certification. This is not a matter of doing what is legally required it is a matter of doing what is right. The motion to make is"I move to order a recount of the five absentee ballots rejected for having one witness". If that motion passes, the council would then appoint the recount board. Members of the original canvassing board are eligible to be on the recount board. In the future, either the absentee ballot envelope should be changed to indicate one witness is required or city code should be amended to require two witnesses. YOU MUST PROVIDE AN VOTER CERTIFICATION IDENTIFIER I declare that I am a citizen of the United States and a qualified voter in the City of_ ;that I am (or) (or) entitled to vote the enclosed ballot(s);and that,unless prevented by physical disability,I have personally marked the enclosed ballot and have not unnecessarily exhibited the marked ballot to any other person.I have not requested a ballot from any other Voter# SoC. Sec# city and am not voting in any other manner in this election. If t had this certification attested by a witness other than an author- ized official,it was because no official empowered to administer an oath was reasonably available. I certify that the foregoing Birthdate is true and accurate. VOTER'S SIGNATURE YO MUST SIGN I BY LAW, YOUR BALLOT CANNOT BE COUNTED UNLESS YOU INCLUDE YOUR SIGNATURE, HAVE IT WITNESSED, AND PROVIDE Canvass Board Use Only YOUR SIGNATURE WITNESSING AFFIDAVIT--- OPTION I Count: Reject:— - _ MUST BE WITNESSED Official Authorized to Administer an Oath Comments: SUBSCRIBED AND SWORN TO BEFORE ME: This day of _ - at __ _ Registered OFFIC AL'S SIGNATURE: in Dist/'rec. OFFICIAL'S TITLE: WITNESSING AFFIDAVIT--- OPTION II II no authorized official is reasonably available,your certification may be witnessed by two persons over the age of 18. WITNESS SIGNATURE: WITNESS SIGNATURE: ____ City,State:_ Date: