Update: The Alaska Supreme Court has affirmed Henderson’s decision, allowing the state to send out the ballots as prepared.
Judge Jennifer Henderson said the Division of Elections may very well be violating state law by concealing the voter registration of independent candidates like the Democrat-backed Alyse Galvin from the general election but stopped short of ordering a wholesale reprinting of the ballots.
Henderson, speaking shortly after noon today, rejected Galvin’s request to issue a preliminary injunction against the state ordering them to reprint more than 800,000 ballots ahead of the Nov. 3 general election because she said she was concerned that the order would interfere with the election itself.
“I am very troubled by what a preliminary injunction in the current form would do to the prospects for any sort of organized or successful election,” Henderson said. “I understand, I’m not ignoring, that from Galvin’s perspective that it was a problem created by the Division of Elections and yet this is a standard that I need to look to.”
That decision was based on the testimony of Division of Elections Director Gail Fenumiai, who made the unilateral decision to change the ballots back in June but concealed the change from the public until sample ballots were posted online over the weekend. The timing of the reveal came after the state had already printed the ballots, with less than a week before the first round of ballots are slated to be sent out to overseas voters.
Fenumiai told the court that the paper couldn’t be delivered to Alaska until the end of this month, but when questioned by Galvin’s attorney Kevin Feldis said she had only made a call to the printer the state has a contract with, had not reached out to other potential printers and had not inquired about the method of delivery.
Fenumiai’s decision reverses course from the 2018 ballots and the 2020 primary ballot that both designated Galvin’s voter status as non-affiliated. The move also had the impact of erasing the party registration of Libertarian candidates who reached the general election ballot through nominating petition, who are listed as “nominating petition” candidates and not Libertarians.
The decision also falls right into the hands of Republicans, who’ve focused their attacks on painting Galvin (and independent U.S. Senate candidate Al Gross) as a Democrat. Feldis argued that the impact of the ballot design is to force the appearance that Galvin is a registered Democrat in her challenge against Republican Rep. Don Young.
“Clearly this is a political strategy and how could the Division of Elections not see that?” he asked.
Henderson did acknowledge that Galvin is likely to face irreparable harm if the ballot goes forward and her challenges are ultimately successful but lamented that the lack of time has complicated an already complicated issue.
The case now heads to the Alaska Supreme Court, where Galvin has appealed, and will be heard at 1:15.