On a chilly Thursday afternoon outside the Boney Courthouse in downtown Anchorage, Tupe Smith and her husband, Mike Pese, were joined by members of Alaska’s Samoan community and those outraged by the state’s drive to make an example out of them.
Smith and Pese have become the face of the State of Alaska’s effort to prosecute nearly a dozen Samoan U.S nationals living in Whittier with felony voter fraud, cases that attorneys for the couple say boil down to honest confusion over the voting rights of people from American Samoa. They’re Americans by name, but don’t have voting rights in the country due to long-standing — patently racist — legal precedent.
That – along with Alaska State Troopers descending on Whittier in 2023 – was an unwelcome surprise to many who are now facing up to 10 years in prison.
While they knew they were barred from voting in federal races for president, they said they had been under the impression, largely due to advice from local officials, that they could vote in local elections. That, and the lack of a “U.S. national” box on the voter registration forms, led them to check the “U.S. citizen” box, which is all the state argues is needed to bring voter fraud charges.
Attorneys for the couple argue that their lack of intent to mislead or deceive the state should matter.
“What’s striking about where the case is at now, in the state’s position, is they even acknowledge that Miss Smith had been told by a public official to check the box saying she was a U.S. citizen,” Neil Weare, co-director of Right to Democracy, a nonprofit group focused on defending and advancing the rights of people living in U.S. territories. “The state is taking a very aggressive position that all that matters is she provided information she knew to be false on that voter registration form, and that, as a result, she could face up to five to 10 years in jail.”
That question of intent was at the heart of Thursday’s arguments before the Alaska Court of Appeals, a legal effort running parallel to the state’s criminal prosecutions of Smith and 10 others. The narrow question before the Alaska Court of Appeals is what exactly the “intent to mislead or deceive” referenced in state law actually means, and whether someone needs to be “willfully” trying to mislead or deceive the state or, as the state argues, simply knowing that the information is wrong is enough.
Whitney Brown, a partner at Alaska law firm Stoel Rives, argued on behalf of Smith, noting that the surrounding law and legislative discussion around the law suggest that intent does, in fact, matter. She said that the laws should be read as “willfully” attempting to break state law, which she argues the state hasn’t even tried to prove.
Kayla Doyle, Assistant Attorney General in the Office of Criminal Appeals, argued for a simpler and more straightforward application of the law where all that needs to be proven is that they knew they were not U.S. citizens. Still, she conceded that Smith and others’ arguments that they were misled by election officials could be an effective defense, but that it should be left up to a jury trial to decide.
“It should be litigated at trial, and a jury of Miss Smith’s peers can look at the facts when they are fully developed and determine whether or not that is a credible statement,” she said. “I think a jury of her peers gets to determine if that is a credible defense.”
But judges on the Alaska Court of Appeals seemed less convinced by the state’s arguments.
“I think the strongest argument that they have is that we are supposed to be interpreting legislative intent, and it’s clear here, this legislature, for whatever they meant intentionally to mean, it does not mean knowingly,” said Chief Judge Marjorie K. Allard during Doyle’s arguments, noting other neighboring sections of law use the term “knowingly” instead of “intentionally.” “So I mean, at least for me, I don’t think it can possibly mean knowingly. It has to mean something else. But what that something else is is where I think it’s difficult.”
Judge Allard also noted that the interpretation of the law – whether it requires willful intent to deceive — could have played a major role in the indictment process. Had the stricter definition of “willingly” been applied, perhaps a grand jury wouldn’t have indicted them in the first place.
Weare said he expects a ruling from the Court of Appeals in the next few months, but during that time, the criminal cases against Smith, Pese and others are expected to move forward. He said the state seems hellbent on making an example out of the family.
Outside the Boney Courthouse, Smith and Pese were surrounded by members of the Samoan and Pacific Islander communities, as well as many others who felt that the prosecution was an unjust effort by the administration to drum up the voter fraud cases that conservatives claim are running rampant.
“This prosecution should not be happening. It is not a good use of state resources; we have limited state prosecutorial resources and should not be used to go after U.S. nationals when it was ultimately an administrative mistake,” said East Anchorage state Sen. Forest Dunbar, adding that he and other legislators were looking at ways to protect the community in the future.
For Smith and Pese, the day and the support shown by their community were bittersweet. Both have said they’ve felt alienated and withdrawn from Whittier after everything, and that they’re not comfortable participating in community events, at the school or at the fire department, in the ways they once did.
“We give back to our community,” Pese said. “We have this sense of servitude to the community made with your home, and it’s like a little family for us. So we still want to continue doing that, but being prosecuted by the Alaska government has made us feel unwelcome, us feel alienated, us feel like every good thing that we did and we’ve done for the community has been thrown away.”
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 Bluesky.
