Alaska Supreme Court upholds ranked voting, non-partisan primaries day after hearing challenge

The Midtown Mall polling location was packed on Monday, Oct. 19, 2020, which marked the first day of early in-person voting for Alaska's general election. (Photo by Matt Buxton/TMS)

The day after the Alaska Supreme Court heard a generally muddled challenge against the slate of voter-approved election reforms instituting ranked-choice voting and non-partisan primaries, the court has upheld the law.

The order, which was issued this afternoon, clears the way for this year’s election to be conducted with a voter-approved system that backers believe will create more room for moderate, centrist candidates to compete in an increasingly divided political climate.

“Ballot measure 2 as passed by the voters is the law,” said Scott Kendall, the attorney who worked on the Ballot Measure 2 campaign and argued in front of the Alaska Supreme Court, “and there’s no way to change that before election day.”

The Alaska Constitution prohibits the Legislature from repealing or significantly altering voter-approved initiatives for two years following their passage.

The changes will impact both state and federal races in Alaska, requiring that all candidates regardless of political affiliation participate in an open primary with the top-four finishers advancing to the general election.

The general election would, then, be conducted with ranked-choice voting where voters can rank as many candidates as they wish. The results would then be tabulated with an instant runoff system where if no candidate has a majority on the first round, the lowest-performing candidate would be eliminated, and their votes would be redistributed to the remaining candidates according to those rankings. This process would continue until a candidate either achieves a majority or the most votes once it gets down to two candidates (because voters can opt to not rank some candidates, you can still have a race where no one reaches a majority).

While the changes have been hailed by many as a path toward representation that’s more widely acceptable, it’s faced stiff opposition by some political parties who’ve argued the system would undermine the political party’s role in driving elections.

It was those concerns that were core to the challenge brought by Libertarian candidate Scott Kohlhaas. Kohlhaas was represented by attorney Kenneth Jacobus, who delivered rambling arguments that state attorney Laura Fox—who was arguing in defense of the measure—said seemed like he was driven by a dislike by the system more than constitutional concerns. Jacobus spent much of his time arguing that the court got it wrong when ruling that Ballot Measure 2 didn’t violate the single-subject clause, that the ranked choice voting system was deceitful (“Communists can run as Republicans!”) and that voters were essentially tricked into supporting the system because it was packaged with widely popular measures to attack dark money.

None of those seemed to sit all that well with the Supreme Court justices, who spent much of the hearing questioning the underlying reasoning behind Jacobus’ statements with, at one point, Chief Justice Daniel Winfree telling Jacobus to get back to the point. When asked if he had any evidence that the voters were “tricked” into supporting Ballot Measure 2’s ranked voting provisions, Jacobus pointed to the failure of a 2002 ballot measure that proposed a somewhat similar system and claimed “nothing’s changed since then.”

“Well, there’s been 18 years of change in the world, hasn’t there?” Justice Susan Carney replied. Jacobus agreed and then spent his limited time noting that things like California have changed and that “the whole country has changed from Trump to this whole disaster with Biden”

Both Fox and Kendall argued that the voters should be able to dictate how elections are run, arguing that some of the remedies suggested by Jacobus and other challengers were supported by law and, in some extreme cases, would bar non-partisan candidates—like former independent Gov. Bill Walker, who’s running for election this year—from running for election.

Today’s order is not a full order explaining the Supreme Court’s full rationale for its decision. A full order is expected at a later date.

The order

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