In response to our records request in for previous printed lists, DoE concedes they 'do not exist'

First time such 'assistance' provided to voters in U.S. Senate race...

Brad Friedman Byon 10/26/2010, 2:47pm PT

Over the weekend we covered the dispute between Alaska's Division of Elections (DoE), who has been handing out printed lists of write-in candidates to early voting sites, and the Alaska Democratic Party (ADP) who says doing so amounts to inappropriate electioneering at the polling place for write-in U.S. Senate candidate Lisa Murkowski in support of her challenge against GOP nominee Joe Miller and the Democrat's Scott McAdams.

The ADP went to court yesterday to file for an injunction, an official told The BRAD BLOG late today. The judge will issue his finding on Wednesday morning. But an admission we received today from Gail Fenumiai, Director of the DoE, may make it more difficult for the state to make their case.

As we detailed Saturday, in letters back and forth between the parties, the Fenumiai has been arguing that the list of candidates --- which reminds voters that Murkowski is running, and shows how to spell her name (a potential matter of dispute when determining which write-ballots should be counted or thrown out) --- is required by state and federal law in order to "to provide assistance to voters in the polling place upon request." She claims "The list of write-in candidates is the best way for poll workers to provide consistent information and assistance to voters if requested, regarding write-in candidates."

In response, ADP attorneys argued "There is no statutory or other legal basis for generating and making available to voters a list of write-in candidates and we are unaware, in the fifty-year history of the state, that such a list has ever previously been generated or used."

Indeed, as other names may be written in on ballots, in addition to those on the list, and the deadline is still open for write-in candidates to file a declaration of intent (giving them certain post-election privileges), the procedure seems legally dubious as well as historically unprecedented as ADP attorneys have charged.

To get to the bottom of it, and to find out if, in fact, the DoE has ever taken such action to "provide assistance" in previous elections, as Fenumiai claims is required by both state and federal law, The BRAD BLOG dashed off a public records request for any similar printed lists of write-in candidate provided to polling places during any previous elections.

This afternoon we received our reply from the DoE's Director, denying our public records request because, as she explains, the DoE has never supplied such a list prior to these 2010 general elections, so there are no records to send in response to our request.

Here's the pertinent part of her response [which is linked in full below]...

Dear Mr. Friedman: I am in receipt of your email dated October 22, 2010, requesting documents, under the Public Records Act, from this office. You asked for a list of write-in candidates, and the instructions for sharing that list with voters seeking help to vote for write-in candidates, for elections prior to 2010. Prior to the 2010 general election, the division did not supply a list of write-in candidates to all polling places for workers to share with voters who are seeking assistance with the write-in portion of the ballot. The requested records do not exist and therefore, we must deny your request for copies under 2 AAC 96.335, DENIAL OF REQUEST...

Fenumiai offered no further explanation as to how it could be that state and federal laws required such a printed list, even as her office has never taken a similar course of action in any past election. The issue became a controversy first when one of the list was founded posted inside a polling station, and then when a pollworker had volunteered to show the list to a voter.

Today, the Democrats have filed to have the unprecedented procedure --- which Miller's camp had objected to as well --- put to a halt. The response we received from Fenumiai today is likely to come in very useful in their case.

In addition to our previous coverage of the write-in list kerfuffle over the weekend, in August, after Murkowski lost the GOP primary and then announced her intention to run as a write-in, The BRAD BLOG detailed how her entry as a write-in candidate is likely to test both Alaska's elections procedures as well as its oft-failed Diebold optical-scan paper ballot system.

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Fenumai's full response, sent to us on 10/26/10, denying our public records request for lack of any such records, can be downloaded here [PDF]...

Previous correspondence between the DoE and the ADL as well as a McAdams supporter...

• 10/20/10 DoE replies to ADL's initial objections.

• 10/20/10 ADL replies in kind, citing statues which they feel DoE is violating.

• 10/22/10 DoE's email to a McKinnon supporter, standing by their position.

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UPDATE 10/27/10: AK Superior Court Judge issues temporary restraining order requiring DoE to remove printed list of write-in candidates from polling places. Full details now here...

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