Editor’s note: This coverage has eaten up my day and with the national news as shitty as it is, no promises about a Friday–or Saturday–in the Sun column. Take care everyone.
The Alaska Division of Elections has been cleared to proceed with a deeply controversial, likely illegal change to the general election ballot after arguing in front of the Alaska Supreme Court, “We are where we are.”
Democrat-backed independent Alyse Galvin brought a legal challenge against the state for a secretive change to the general election ballot design that wiped away the fact that she and several other congressional and legislative candidates are, in fact, independent or in some cases belong to a party. Her legal effort, which was launched Wednesday, called for the ballots to be reprinted, an order that was denied by the Alaska Superior Court and later affirmed by the Alaska Supreme Court.
The change—which aligns closely with Republican talking points against these Democrat-backed independents—was quietly disclosed only after more than 800,000 ballots were printed and less than a week before a federal deadline calls for ballots to be mailed to overseas voters.
In front both the Alaska Superior Court and the Alaska Supreme Court, the state at times seemed to acknowledge that the decision—or at least the last-minute disclosure of it—was an error but ultimately said that it would be far too difficult to fix the ballots before sending them to voters.
“We are where we are,” said Laura Fox, an attorney for the state. “The cure shouldn’t be worse than the disease. … It can’t be the case that any problem with the ballot always justifies blowing up the election as a remedy, assuming there is a problem.”
Kevin Feldis, the attorney for Galvin, said he doubted the state’s assertion that reprinting the ballots would blow up the election, noting that it’s based on the testimony of Division of Elections Director Gail Fenumiai—the very person who’s allegedly solely responsible for the decision to change the ballot. He noted that the immediate need could be met with paper already in hand and that the federal deadline for mailing ballots to overseas voters specifically includes an exemption for legal challenges.
Feldis noted that the decision conveniently plays into the hands of Republicans, who’ve focused their attacks on Galvin and other Democrat-backed independents by arguing they’re just Democrats. He said the ballot, as designed by Fenumiai, gives voters the impression that Galvin is a registered Democrat.
“You know, this ballot does exactly that,” he said, comparing it to a recent bus ad that suggests Galvin is in the pocket of U.S. Speaker of the House Nancy Pelosi. “In this political climate, that has to raise a red flag.”
He argued in favor of a wholesale reprinting of the ballots, arguing that suggestions of supplemental information would be open the door for more disinformation. The Alaska Supreme Court has already ruled the state created a biased summary of an oil tax initiative, upholding a lower court’s finding that former oil company Lt. Gov. Kevin Meyer had his fingers on the scales.
Asked if the state had any reason to justify the change from the ballots used in the 2018 elections and the 2020 primary, Fox said the state didn’t have to offer any justification because they believe the new ballot design is within the law.
“I don’t think the Division needs to show something was wrong with the prior ballot,” she said.
The state has also argued that Galvin’s “nonpartisan” voter registration—of which nearly 90,000 Alaska voters are registered as—is essentially meaningless, without substance and doesn’t qualify under the requirements for the ballot to include a candidates “political affiliation.”
Supreme Court justices asked why, then, candidates who do have a party and reached the ballot through nominating petition—such as Libertarian legislative candidate Scott Kohlhaas—had their voter registrations similarly wiped away in the move. Fox deflected, instead focusing on Galvin.
Neither of today’s orders are the end of the road for the issue, which will continue to be litigated in the Alaska Superior Court, but it means that at least 8,000 ballots sent to overseas voters will go out as is this weekend without any additional information clarifying the candidates’ voter statuses.
One Supreme Court Justice asked Feldis what might happen if that is the case.
He said it’s too early to say but that they could potentially bring a lawsuit challenging the results of the election.
What about other pending litigation, like the witness signature lawsuit? Would that “just” involve reprinting return envelopes?