This story was originally published in The Alaska Memo by Matt Buxton.
It was pretty clear from the get-go of last week’s oral arguments that the Alaska Supreme Court wouldn’t throw out the initiative seeking to repeal Alaska’s open primary and ranked-choice voting system. The rules for state initiatives are muddy to the point that it’s unclear what is and isn’t allowed, so the justices were not about to take the extraordinary step of throwing out the initiative that tens of thousands of Alaskans signed.
Still, the oral arguments — like much of the legal challenges against the right-wing effort to return the state to the traditional partisan primary system — documented the latest in a long string of shady-but-not-illegal behavior that will bring the issue to the general election ballot this year. We’ve had a litany of campaign finance violations that resulted in unusually high penalties, totaling nearly $100,000. The messy signature-gathering campaign led a Superior Court judge to throw out over two dozen petition booklets over glaring problems.
In the latest round of oral arguments, the focus was on the Alaska Division of Elections.
Attorney Scott Kendall argued that the state gave the initiative campaign — which is favored by conservative Republicans — special treatment that helped it paper over glaring defects with some 60 booklets that had invalid certifications when submitted. In those booklets, the notary’s commission had expired, and thus, the certification was no good. In previous years, that would have led to the initiative’s rejection and caused the group to miss the deadline to appear on the 2024 general election ballot. Instead, the state allowed the group to retrieve the defective ballots, fix the errors and return them well after the deadline to complete them.
Whether any of that was actually allowed is unclear. State law allows corrections to petition booklets, but the extent to which they’re allowed and the timeline under which they must be completed isn’t spelled out. Instead, it’s left up to the discretion of the Division of Elections in an opaque process that seems to shift based on internal emails. Kendall argued that allowing such flexibility raises the specter of political bias, allowing political appointees to help and hurt different causes.
“To give the Division that much latitude could be decisive,” he said. “It was decisive in this case. So, you have a division that maybe they’ll bend over backward for a particular petition, maybe they’ll just follow (the regulations) and disqualify it. We can’t allow the Division of Elections to have that kind of latitude.”
He also noted that the allowances could lead to even more shady actions, noting that a group could get away with filing petition booklets certified by “Mickey Mouse” and get an additional 60 days to fix it.
“That’s the danger in the discretion,” he said.
Repealing Alaska’s open primary and ranked-choice voting system has been a major priority for conservative, party-aligned Republicans. The system, which ended the practice of state-backed semi-closed partisan primaries, has opened new lanes for moderate Republicans to run and win in districts that once produced reliable Republican team players. That helped lay the foundation for a bipartisan majority in the Senate, which has been a significant headache for Gov. Mike Dunleavy and his Republicans.
Kendall argued that a strict application of the rules would have disqualified the initiative and questioned whether the state would have made the same allowances for a measure supporting abortion access.
It should be noted that this is not at all theoretical.
The Alaska courts have already ruled the Division of Elections has impermissibly put its finger on the scales with progressive causes, such as the 2020 initiative to raise oil taxes or the many roadblocks it set in the way of the effort to recall Gov. Mike Dunleavy (which delayed the whole effort long enough that the pandemic snuffed it out). Much of that has been guided by sketchy legal opinions from the Department of Law, which has not been shy about putting its thumb on the scales.
State attorney Kimber Rogers told the court that what mattered was that the state had been “diligent” about working with the sponsors. However, she acknowledged that very little of the Division of Elections’ correction policy had been spelled out.
“We don’t really know what the division’s practice was at the timeframe,” she said when questioned about a Division of Elections brochure that said initiative sponsors cannot fix problems with their initiatives after submission. She said they didn’t keep such records.
When justices discussed the possibility of the state not allowing a group to correct its errors, Rogers said the groups could simply sue the state if they felt the treatment was unfair. When asked about the Division’s decision to throw out a booklet for the same issues that were allowed to be fixed with the 60, Rogers again fell back to the flexibility allowed to the Division of Elections. She said the initiative had already qualified without that booklet, so it didn’t matter.
“It seems like a lot of mush in there,” said Chief Justice Pete Maassen of the state’s process for correcting errors with initiative petitions.
The problem, however, is that despite all the mush, the justices weren’t particularly convinced that they should apply the deadlines as strictly as Kendall insisted. He argued that a strict reading of the state’s laws and regulations would have disqualified the initiative. Justices doubted the framers of the rules had intended them to be so strict as to effectively make the correction process impossible to implement.
The justices issued their order shortly after the oral arguments, upholding the Division of Elections’ approval of the initiative. It will be interesting to see whether the full opinion addresses the Division of Elections’ actions in more detail.
Matt Acuña Buxton is a long-time political reporter who has written for the Fairbanks Daily News-Miner and The Midnight Sun political blog. He also authors the daily politics newsletter, The Alaska Memo, and can frequently be found live-tweeting public meetings on Twitter.
