Kodiak Superior Court Judge Stephen Wallace did not make a decision Monday requested by local attorney Mel Stephens that would change the fate of how to fill two Assembly seats — one that is vacant and one that is soon to be.

Wallace heard testimony from both Stephens and Kodiak Island Borough Attorney Scott Brandt-Erichsen and Borough Clerk Alise Rice, who oversees borough elections.

Stephens argued that the two seats should be placed on the Oct. 5 municipal ballot to allow voters to select who will represent them in the Assembly. 

He also said that the borough clerk did not follow proper procedure in notifying the Assembly that the election process was a two-step process: appointment of someone to the seat followed by placing someone on the ballot to fill out the remainder of a specific seat’s term.

Former Assembly Member Duane Dvorak submitted his resignation on July 15 and dated it for Aug. 5, with the intended goal of having his replacement decided on the Oct. 5 ballot; the Assembly accepted his resignation at a July 29 special meeting. Assembly Member Julie Kavanaugh submitted her resignation Aug. 10 and plans to step down Sept. 2. The Assembly accepted her resignation at an Aug. 19 regular meeting.

Dvorak’s seat has one year remaining on its term, while Kavanaugh’s seat has two years. Stephens said he used a self-altered declaration of candidacy form to file for Dvorak’s seat on Aug. 16, the last day a candidate could file to be on the ballot. He said he altered the form because the clerk’s office did not have a declaration form for a one-year term.

Stephens asked the injunction to include both Dvorak’s opening with his name as a candidate and spots for write-in candidates, and that Kavanaugh’s seat be on the ballot be for write-in candidates only.

The window to file as a write-in candidate opened Aug. 17 and closes Oct. 4, the day before the election.

Stephens also said his first priority was to ensure voters had the right to vote on who would represent them for the remainder of the respective seats’ terms, and that appearing on the ballot himself was secondary.

Rice testified that the borough code stipulates specific timelines that the clerk’s office must adhere to, including publishing a notice of available seats in the local newspaper. She added that the publication must be provided to the newspaper three days before publication. 

Other specific timeframes include the window in which each candidate can file their paperwork to appear on the ballot. 

She said there are also specific windows in which to mail out election pamphlets to both residents on the road system and to the villages, specific periods in which to print computer-readable ballots, and timeframes for sending a memory card to Dominion Voting Systems to be programmed with information corresponding to the ballot.

Rice said that new pamphlets and new ballots would have to be printed if both Dvorak’s and Kavanaugh’s seats were included, which would require 10 business days to complete. 

When asked by Brandt-Erichsen if the ballots could be printed in Kodiak, Rice said a local company didn’t have the ability to meet the borough’s requirements. Ballots are printed by a company in Homer and shipped to Kodiak.

Rice said that ballots are also required to be in its hands at a specific time to comply with the start of the early voting period, which starts Sept. 14. Early voting period, she said, is relatively new to the Kodiak Island Borough, having occurred in 2020 and again this year, at least in part, as a response to the COVID pandemic.

Stephens asked why the borough published a supplementary notification on July 23 that Dvorak’s seat would be vacant. 

The notice stipulated the vacancy would be available “if the Assembly accepts that resignation prior to Aug. 1, there could be a one-year vacancy to be filled at the Oct. 5, 2021, regular Borough election.”

Rice said the decision to place the supplementary notice was done following conversation with the borough mayor based on the understanding that the process in which to fill the seat would be decided upon at a July 29 special meeting. 

However, at the July 29 meeting, the assembly voted 6-1 to fill Dvorak’s vacancy by appointment, with Dvorak the only no vote. At that point the clerk was directed to begin advertising notice of the vacancy.

Stephens said Rice failed to prepare the required notice for the ballot, but Rice said the decision not to advertise was based on the Assembly’s direction to fill Dvorak’s seat by appointment.

In his argument, Brandt-Erichsen said the state doesn’t oversee borough or city elections, leaving those details to local clerks’ offices. The Alaska Division of Elections cites that “city and borough clerks are responsible to administer local city and borough elections following procedures set out in their municipal ordinances.”

Brandt-Erichsen said that placing either seat on the ballot wasn’t reasonable. While Dvorak’s resignation was accepted July 29 it wasn’t effective until Aug. 5, after the 75-day notification period. Kavanaugh’s resignation, while accepted on Aug. 19, isn’t effective until Sept. 2.

Brandt-Erichsen also said that Stephens as the plaintiff would not “suffer any permanent injury” if the court denied the injunction. 

However, the injunction would “irreparably harm the borough,” the clerk’s office and voters because the public could potentially be confused and consider the borough isn’t putting out accurate election information.

Wallace said he would need time to digest all the information, but said he would attempt to rule sooner rather than later given the immediacy of the upcoming election. The judge added he would issue either a written ruling or set an upcoming court calendar date.

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