The trial ended Monday in a lawsuit over illegal mistakes made in a North Slope primary race in August — but there’s no verdict yet. Superior Court Judge Andrew Guidi told both parties he will email them his decision by Thursday.

Rep. Benjamin Nageak filed the lawsuit against Lt. Gov. Byron Mallott and Division of Elections director Josie Bahnke because of irregularities in voting procedures filed in the House District primary race, which he lost to Dean Westlake by just eight votes.

The most significant polling mistake occurred in Shungnak, where voters were allowed to cast both a Republican and a Democratic ballot. State law requires Alaskans to choose just one.

According to Nageak’s lawyer, Tim McKeever, a similar mix-up occurred in Kivalina, where seven voters were allowed to cast both ballots. In that case, the second ballot was marked as questionable and later thrown out.

McKeever also questioned the validity of some absentee ballots cast in Buckland, where the date and times of when the ballots were cast remains unclear.

McKeever is asking Guidi to throw those votes out or call for a new election. But the Division of Elections says that could create new problems.

“In any do-over of the election, there’s only going to be one ballot or one election for House District 40 and so no voter would have to make that choice, everybody could just vote in that democratic primary,” said Assistant Attorney General Margaret Paton Walsh, who’s representing the division in the case. “There’s a distortion that’s created by not making people choose. In a special election, that distortion will actually be magnified rather than corrected so it doesn’t fix the problem, the problem is sort of unfixable, and then the question really is so, ‘what does the problem mean for the Democratic primary?'”

Paton Walsh said another election could cost the state tens of thousands of dollars.

“If anytime there was any violation of the law in the context of an election however large or small, the entire election was invalidated, it could be very very expensive holding elections over and over again,” she said. “The division’s position is not that it doesn’t matter that the law was violated, that’s not at all what we’re saying, we’re just saying this problem, when you look at it and you look at the Democratic primary through the lens of this problem, we don’t believe this rises to the standard that justifies holding a new election.”

Both Nageak and Westlake are Democrats, and there is no Republican challenger in November. McKeever told the judge he still believes voters could be given the choice of a Republican ballot to replicate the primary voting conditions.

“I don’t think it’s true that in a special election everybody would vote the democratic ballot. I think there’s a way to do the election so that people do not, so that we can do what the law requires and that is that an election requires people to choose which ballot they want to vote,” McKeever said. “This court could ask that the voters be given a choice when they get to the point of voting on the state house race whether you would like the Republican ballot or the Democratic ballot.”

The case is expected to head to the State Supreme Court for consideration. Both parties have asked for an expedited review because absentee voting starts Oct. 24.

Paton Walsh said the division of elections has prepared multiple versions of the ballots, to reflect the possible outcomes of the lawsuit, but that the division needs to know by Friday, Oct. 14, which version to send out.

KTVA 11’s Liz Raines can be reached via email or on Facebook and Twitter.

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