Mike O'Callaghan appeals the superior court's grant of summary judgment in favor of the Director of Elections and Jack Coghill, arguing that Coghill was a "disqualified" candidate under AS 15.25.110 and that the Director of Elections unlawfully placed his name on the 1990 general election ballot. The single issue which we address is whether AS 15.25.110 prohibits a person's name from appearing on the general election ballot when that person withdraws as a candidate for one political party to accept another party's nominating petition. We conclude that AS 15.25.110 does not prohibit a candidate who withdraws from having his or her name placed on the ballot as the candidate for a different political party. Consequently we affirm the superior court's grant of summary judgment.
In the 1990 state primary election, Jack Coghill sought and won nomination as the Republican party's lieutenant governor candidate. John Lindauer and Jerry Ward won the primary election nominations as the Alaska Independence Party's (hereafter AIP) governor and lieutenant governor candidates. Mike O'Callaghan was also a candidate for governor on the Political Party ticket.
Initially Coghill joined Arliss Sturgulewski, the Republican governor candidate, to form the Republican party ticket. However, on September 19, 1990, just before the statutory 48-day deadline, Coghill withdrew as the Republican candidate and joined Walter Hickel to form the new ticket for the AIP. Earlier that same day, Lindauer and Ward had withdrawn as the AIP candidates, apparently to create a vacancy so that the AIP central committee could nominate Hickel and Coghill by party petition.
On September 28, 1990, O'Callaghan filed a complaint against the Director of Elections, then Lt. Governor Steve McAlpine, seeking a temporary restraining order to prohibit McAlpine from printing Coghill's name on the general election ballot as the AIP's lieutenant governor candidate. Judge Michalski denied this request. Coghill then moved to intervene in the case, and his motion was granted. O'Callaghan petitioned the court for a hearing on the proper interpretation of AS 15.25.110. The trial court chose to treat the petition as a motion for summary judgment. Coghill and the Director cross-moved for summary judgment.
Argument at the summary judgment hearing focused exclusively on the proper interpretation of AS 15.25.110. The court denied O'Callaghan's summary judgment motion, but granted the cross-motion filed by Coghill and the Director after concluding that AS 15.25.110 did not bar Coghill from appearing on the ballot. This appeal followed.
O'Callaghan argues that a candidate who has "withdrawn" his name from one party's nomination is "disqualified" under AS 15.25.110 and cannot have his name placed on the general election ballot as the candidate of any party. The statute provides:
AS 15.25.110 (1991 Supp.) (emphasis added). O'Callaghan maintains that a candidate is "disqualified under this section" when he or she "dies, withdraws, resigns, becomes disqualified from holding the office for which the candidate is nominated, or is certified as being incapacitated." Id. Under his interpretation, the Director of Elections is prohibited from placing a candidate's name on the ballot as a candidate for any office if the candidate creates a vacancy under the statute.
This question is purely a matter of statutory construction.
The words "qualifications" and "disqualified" are used in several places in the election code. See AS 15.05.010, AS 15.05.011, AS 15.15.210, AS 15.25.056, and AS 15.25.110. Except for the challenged usage in AS 15.25.110, it is perfectly apparent that the words are used to refer to the statutory or constitutional qualifications for voters or candidates; namely age, citizenship, and residency.
However, O'Callaghan contends that the legislature intended to give "disqualified" a different meaning in the last sentence of AS 15.25.110. He argues that the sentence specifically refers to disqualification "under this section" whereas the other uses of the term do not. He also points out that the last sentence was added as part of the 1962 amendment along with the language concerning incapacitation. The precursor to AS 15.25.110 was the 1960 session law, § 5.11 which stated in pertinent part:
Ch. 83, SLA 1960. The 1962 amendment added the underlined portions to § 5.11:
Am. ch. 125, § 18, SLA 1962. O'Callaghan argues that "disqualified under the provisions of this section" must have been intended in its broadest sense because "provisions" is plural not singular.
O'Callaghan's argument has some merit since, under our rules of statutory construction, we presume that the legislature has not used superfluous words. See City of Homer v. Gangl, 650 P.2d 396, 399 (Alaska 1982). The 1962 amendment is troubling and makes the subsection ambiguous.
Thus, the names of Ward and Lindauer, who withdrew as AIP candidates, may not appear on the ballot as viable candidates of the AIP, and Coghill's name may not appear on the ballot as a candidate of the Republican party. However, it is not necessary to conclude that these candidates could not appear on the ballot as candidates of another party if they accepted that party's nominating petition. Jack Coghill did just that.
We consider this to be the most reasonable interpretation of AS 15.25.110 because it prevents a candidate from appearing on the ballot as the candidate of two different political parties.
Despite O'Callaghan's claims to the contrary, there is nothing in the legislative materials to suggest that the legislature meant to prevent a candidate who withdraws after the primary election from being placed on the ballot as the candidate of another party.
It is quite likely that the legislature never contemplated the turn of events that occurred in the 1990 election. Therefore it is not surprising that the election code fails to clearly address the policy concerns raised by O'Callaghan during oral argument before this court.
The superior court's order is AFFIRMED.
Although these new arguments are not dependent on any controverted facts, they could not have been gleaned from O'Callaghan's complaint not were they closely related to the statutory construction issue argued below. O'Callaghan never questioned the procedure Coghill employed to fill the AIP vacancy. At one point during the hearing, he stated:
The filing fee and the party affiliation arguments are clearly a new and different attack on Coghill's candidacy. O'Callaghan also attacks the legitimacy of Gov. Hickel's candidacy, a party who is not involved in this appeal. Basic due process considerations mandate that we not entertain these arguments for the first time on appeal.
The 1989 amendment changed this section to read:
AS 15.25.030(a)(14) (Supp. 1991). AS 15.25.180(a)(14), a related provision, was similarly amended. This change was explained by Sen. Pourchot, the amendment's sponsor:
House Judiciary Committee, Minutes of Meeting held April 19, 1989.
The Senator's comments certainly indicate that the legislature was unconcerned with candidates doing exactly what Jack Coghill did, at least during the period before the primary. Each subsection of the election code should be construed in light of every other subsection to create a harmonious whole. Anchorage v. Scavenius, 539 P.2d 1169, 1174 (Alaska 1975). Therefore the 1989 amendment supports our conclusion that dual candidacies are prohibited by AS 15.25.110, but that the statute does not prohibit a candidate from withdrawing as the nominee of one party to accept another party's nominating petition.