Recall back on track after judge ‘inadvertently’ put the effort on hold

Superior Court Judge Eric Aarseth listens to Recall Dunleavy campaign attorney Jahna Lindemuth during oral arguments on Friday, Jan. 10, 2020. (Photo by Matt Buxton/TMS)

Booklets for the second phase of signature gathering are once again due for release on Feb. 10 after Judge Eric Aarseth reversed his order putting a hold on the process, acknowledging that it was done “inadvertently.”

Both sides of the effort to remove Gov. Mike Dunleavy from office were surprised on Tuesday when Aarseth—who found that all but one of the claims against the governor met the legal standards for a recall—approved a motion putting a halt to the issuing of signature booklets. When he had delivered, he had said he wouldn’t entertain a stay on the case and would leave that up to the Alaska Supreme Court.

It turns out that the motion requested by anti-recall group Stand Tall with Mike was accidentally approved. A motion on Wednesday reversed the decision and the Alaska Court System clarified the error on Twitter later in the day.

“On January 21, Judge Aarseth reviewed the Unopposed Motion for Expedited Consideration of Motion for Stay Pending Appeal and the Motion for Stay Pending Expedited Appeal filed by STWM while out of town on a urgent family issue,” explained the court system in a statement. “He telephonically authorized granting the Motion for Expedited Consideration only. The Motion for Stay Pending Expedited Appeal was inadvertently granted as well. To correct the error, Judge Aarseth issued an order vacating the order granting the stay.”

The action means that the Feb. 10 deadline for the Division of Elections to prepare and distribute the booklets for the second round of signature gathering, which requires the collection of 71,252 signatures.

But before you break out the pens, the order could be put on hold once it’s appealed to the Alaska Supreme Court. The statement by the court system also indicates that Aarseth will still review the motion for the stay with a deadline of today for the parties to file their arguments.

“Currently, the Motion to Stay is still pending a decision. The court received RDC’s opposition to the Motion to Stay, and STWM can file a reply by 1/23,” the court statement explains.

Stand Tall with Mike has argued that it and supporters of Dunleavy will be irreparably harmed if the signature gathering process proceeds, arguing that the group will need to campaign against the effort and that Dunleavy will be distracted from executing his agenda (Dunleavy said in a recent interview that it’s “not affecting how I do my job”).

The Recall Dunleavy campaign has countered that the campaign and the Alaskans who signed the initial petition are being harmed. They argued that if the Division of Elections hadn’t unlawfully rejected the recall application that they would have been able to gather the signatures to call the election and potentially replace who gets to oversee this year’s budget.

The State of Alaska has filed a motion that doesn’t oppose the stay. The motion concedes that any harm to the state will be “administrative in nature,” but agrees that the state thinks it’s likely to win in the Alaska Supreme Court. And, at the very least, the state argues issuing petitions before the Alaska Supreme Court weighs in could create additional legal problems.

“The Division is also mindful of the potential for litigation over signatures gathered prior to a decision from the Supreme Court, should that Court’s decision result in further changes to the statement of grounds,” argues the state. “If more, but not all, of the grounds are struck, some voters may have signed the petition based on an invalid ground. The Court may then have to resolve what happens to those signatures, which will extend the length of the litigation and potentially add to the uncertainty.”

The deadline for the briefings on the expedited motion for a stay are due today. There is no deadline for when that decision would be resolved. The appeal to the Alaska Supreme Court is pending the final order on the case.

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