Alaska never actually joined the Texas lawsuit to overturn the election

Gov. Mike Dunleavy. (Photo by Matt Buxton/TMS)

“Alaska Governor Mike Dunleavy announced today that Alaska joined the Texas lawsuit on election integrity.”

That’s how a Dec. 10 news release from the governor’s administration began, proudly announcing they had roped the 49th state into a hair-brained and deeply cynical effort to undo the election results and hand Trump a second unearned term. Turns out that both Texas’ effort to overturn the elections and the administration’s attempt to lend the state’s backing to the effort came up short.

After claiming they didn’t have enough time to review an amicus brief filed by more than a dozen states filed in support of Texas’ lawsuit, they’d said it could all be resolved by simply sending a letter to the U.S. Supreme Court clerks asking them to be added to the list of states trying to tell Wisconsin, Michigan, Georgia, and Pennsylvania how to run their elections.

But as legal observers noted at the time, that’s not how the U.S. Supreme Court works.

“Additional amici may not be added as joining a brief after it has been submitted for filing,” explains the Supreme Court’s rules on amicus briefs, which was referenced in an email to the Alaska Department of Law informing them that their effort to “join” the lawsuit wasn’t possible.

The state conceded that much in a letter sent to the court on Dec. 11—which was only publicly disclosed today by anonymous Alaska legal observer Alaska Cases on Twitter—altering their ask to “support” Texas’ effort, a move that has no legal meaning.

“The State of Alaska hereby writes to support the brief of Amicus Curiae States of Missouri and 16 other states in support of Plaintiff’s Motion for Leave to File Bill of Complaint,” wrote a letter signed by Alaska’s Acting Attorney General Ed Sniffen. “This letter is submitted to more accurately characterize the State’s support of the Brief and correct the case number.”

The thing is, too, that Alaska had other alternatives to actually “join” the lawsuit.

On Dec. 11, while the state was clarifying that it was offering to “support” the lawsuit, Alaska Republican Sen. Lora Reinbold, Reps. David Eastman and George Rauscher, and four other representatives-elect joined several other state legislators to properly filed their own amicus brief supporting the Texas lawsuit.

Alaska Cases points this out, reflecting on what it said about Sniffen.

“Instead of filing a simple 3-page joinder brief (which there was plenty of time to do) Acting AG Sniffen and mislead Alaskans about what they had accomplished. It was unethical and professional misconduct for Sniffen.”

Why it matters

While the whole thing was for naught as the U.S. Supreme Court promptly threw the whole lawsuit in the trash, but it says something about the Dunleavy administration, which has been operating without a permanent attorney general since Kevin Clarkson resigned on Sept. 1 amid a scandal the administration had attempted to hide from the public.

And now the administration has not only supported a widely mocked lawsuit to overturn the elections, dragging Alaska into a mire of conspiracy that undermines its own elections, but by incompetence or by refusal within the Department of Law failed to actually join the suit. The state never disclosed its embarrassing shortcoming publicly.

The Texas lawsuit ran contrary to Alaska’s own elections, where the witness signature requirement on absentee ballots was put on hold similarly to the states targeted by the lawsuit. It was a point that some in Dunleavy’s own administration seized upon in an effort to potentially undermine the state’s elections.

“If TX prevails, Alaska’s 2020 election results also can be revisited: the AK Supreme Court changed election rules for absentee ballots after our voting already had begun,” wrote Department of Administration Commissioner Kelly Tshibaka in a since-deleted post to her personal Facebook page. “Imagine what this could mean for Proposition 2 (where absentee ballots tipped votes in favor of the jungle primary) and for certain State Legislature races? Alaska can throw out all absentee ballots without a witness signature, for example.”

She added in the comments that it could be “leverage” to reverse the results in Alaska’s elections that saw two GOP incumbents lose and election reform measure passed.

“I’m not suggesting we join the suit; I’m saying we leverage the potential victory to fix the problem our court created.”

The lawsuit and Alaska’s effort to support it were failures. While it may be enticing to move on from this farce, the Dunleavy administration has put its willingness—even if incompetently—to go court to meddle in not just another state’s elections but its own elections on the record.

We shouldn’t be quick to forget any of this.

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