Update: The Alaska Supreme Court has upheld the lower court’s decision, placing a hold on the state’s witness requirement law. The order upholds a lower court order that doesn’t require anything to be reprinted. Ballots will still say a witness signature is required but the state has been ordered to count the ballots regardless of the signature.
The state can’t possibly waive the requirement for by-mail absentee ballots to have a witness signature because it would confuse voters and undermine the integrity of the elections, the state argued in front of the Alaska Supreme Court today.
“It’s not enough just for the election system to actually be secure or for the courts to think it’s secure. We also need everyone to trust that it’s secure and believe that the election results are valid,” argued state attorney Laura Fox. “We need everyone’s buy-in for the election to work.”
But the fact that today’s arguments come just weeks after the state was in front of the Alaska Supreme Court arguing that a secretive last-minute redesign to the ballot was permissible wasn’t lost on attorney Natalie Landreth, who as arguing to uphold a lower court’s ruling that put the requirement on hold for this election.
“Numerous significant changes in just the last three weeks including yesterday that undercut the argument that nothing can be done mid-eleciton cycle and no changes can ever occur otherwise the system is damaged,” she said. “No one has done more harm to the perception of (the Division of Elections) than the (Division of Elections) themselves this year.”
She noted that just since the case that upheld the state’s secretive last-minute changes to the ballot, the state has reprinted nearly 100,000 physical ballots, resent some overseas ballots because the first dispatch didn’t include the correct candidate, reprinted a supplement to the voter pamphlet after one candidate was left out and acknowledged it didn’t know voters lived in a village thereby preventing them from voting in the primary election.
Fox argued that the integrity of the election rests in the public trust in the Division of Elections, arguing that potential damage to the integrity of the election overrides any potential concerns about contracting the virus. Landreth said the opposite, arguing that making it easier for people to vote without risking their health will help with the success of the election.
“Telling voters they don’t need a witness signature so that everybody can be safe and just stay home helps the perception of the Division of Elecitons,” Landreth countered. “Now, they would have us believe this is very naïve but it’s really beside the point. The point is it doesn’t cause any further harm because you’re making it possible for more people to vote without this additional requirement.”
Landreth is with the Native American Rights Fund and was arguing the case on behalf of individual plaintiffs who say they may not vote if they have to risk their health, the League of Women Voters of Alaska and the Arctic Village Council, which is currently under a strict lockdown. They argue that the state’s witness requirement, which even the state concedes has never played a role in identifying voter fraud, places too high of a burden on voters during the pandemic.
She said it’s wrong to make people choose, particularly for populations where covid-19 has been particularly deadly.
“The harm is in the choice. The harm is in, ‘is it worth it for me to really risk it?'” Landreth. “Alaska Natives are 14% of Alaska’s population and 43% of the (covid) deaths. Arctic Village is 233 air miles away from the nearest hospital so when they look at risk, they look at it very differently than we do. That’s why the burden of the harm is so enormous. … Alaska Natives and villages are uniquely situated to be at much higher risk. That’s the problem here. Why are we making voters do this?”
Fox countered this point by doubting that forcing isolated people, no matter their risk category, to go out and find a witness signature didn’t present any risk as long as they follow health guidelines. She argued there’s no evidence that getting a signature while wearing a mask is a risk, so the Alaska Supreme Court shouldn’t even consider it, and that the people could simply reach out to grocery store clerks to witness their signatures.
The Alaska Supreme Court justices peppered both attorneys with questions about their positions but seemed to be particularly skeptical of the case made by Fox (though, admittedly, they also seemed skeptical about the case she made in the ballot design case before siding with her). Justice Dario Borghesan, who’s the newest addition to the court, seemed particularly unconvinced.
He asked if the state’s position was “that a mild burden that is completely unjustified by objective reasons still has to stand and the court can’t provide relief because it might undermine public confidence?”
Fox agreed, noting that if the case had been brought earlier in the year that perhaps the state would have been able to make the changes without protest.
Landreth had already addressed that point during her arguments. She had noted the state would have preferred they brought the case in May, when the total cases were still under 100. She noted that over the last weekend, alone, there had been more than 500 new cases.
“Why would we have sued here?” she said holding up a chart and pointing to the flatline of the cases in the early stages of the pandemic.