In one of the more preposterous court hearings in a while, Anchorage Superior Court Judge Gregory Miller heard oral arguments on Monday in a lawsuit challenging the election reforms approved by voters in Ballot Measure 2. And while it’s always a risky endeavor to guess at an outcome based on oral arguments, it sure doesn’t look like Ballot Measure 2 and its election reforms are going to be going away anytime soon.
The arguments brought by attorney Ken Jacobus seemed to shift between an incorrect understanding of how ranked-choice voting works, legal arguments that have already been settled by the Alaska Supreme Court and appeals better suited for talk radio than the court room. Aside from the inappropriate “But the Outside money!” arguments over policy, Jacobus’ core complaints seem to fall into two categories: That the top-four primaries infringe on a political party’s right to put candidates on the ballot and whether or not people are effectively voting twice with the ranked-choice system.
“What is voting in ranked choice voting? Is it a single vote or is it a series of votes?” he said, stumbling through his talking points. “You count once, if you don’t reach an appropriate decision you drop off the person at the bottom and then that person’s votes are transferred up to the other candidates but the people who voted to for the other candidates are not allowed to change their votes. … That’s not appropriate because it doesn’t allow the voters for the winning candidates to switch their votes.”
At this point Judge Miller interrupted to point out that a ruling from a 2011 case said “exactly the opposite of what you’re saying now.” After a while Jacobus conceded that he wasn’t familiar with the specifics of the case but closed by telling Miller that, “This is going to be difficult for this court to decide, I believe.”
His other argument hinged on the associational rights of political parties and that people, such as communists, could trick voters by adopting a party label like “conservative Republican.”
Alaska Assistant Attorney General Margaret Paton-Walsh deconstructed much of this during her arguments, noting that there’s currently nothing stopping people from misleading voters by getting creative with labeling. As for the associational rights of the political party, she argued that there’s nothing that entitles a party to have their candidates elected by voters and there’s nothing in Ballot Measure 2 that stops parties from endorsing, supporting and campaigning for their preferred candidates.
“The plaintiffs claim that an attack on political parties or harm to political parties harms the right of free political association, but that is not a self-evident proposition. The fact that political parties may become less relevant in this new system does not mean there’s a constitutional violation. The constitution protects people’s right to associate freely to promote their political aims, it does not guarantee that association’s relevance in the larger political framework,” she said. “Whether Ballot Measure 2 is good or bad for political parties is not the question, the question has to be is there an actual restriction on people’s ability to freely associate to promote their political gain? There’s nothing in Ballot Measure 2 that does anything to control that.”
As for the Jacobus’ point highlighted above regarding the whole double-voting claim, Paton-Walsh said at one point that it appeared Jacobus didn’t really understand how ranked-choice voting worked and Scott Kendall, the attorney representing the ballot measure group, piled on in his closing statements.
“Mr. Jacobus gets into this idea of people who want to switch their vote. He has yet to articulate in a clear way, and I don’t think he did today, under what circumstances would someone change their vote? he said. “Under what circumstances would you vote for person who’s in first place, they’re still in first place but because another fourth-place candidate was eliminated, you want to change your first place vote? It belies any sense of logic.”
Kendall closed the oral arguments by noting the entirety of Jacobus’ case could be summed up by that faulty legal thinking.
“It really feeds into what the closing of his argument just now was, which was very telling. He went back to policy arguments. He said, ‘I don’t like it. It’s just terrible.'” Kendall said. “Well, more Alaskans decided the other way. Ballot Measure 2 became the law of the land and it offends no constitutional provision”
Miller didn’t rule immediately on the case.