Lawsuit challenges witness requirement for state’s absentee ballots

Arguments were heard in Superior Court on Thursday, with a decision expected Monday
Published: Oct. 1, 2020 at 4:58 PM AKDT
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ANCHORAGE, Alaska (KTUU) - Arguments over a lawsuit filed by several Alaskan groups, alleging that a state witness requirement for absentee ballots places unconstitutional burdens on voters, were heard in Superior Court Thursday afternoon.

The lawsuit, submitted in early September by several plaintiffs, seeks the blocking of election officials' enforcement of the rule that says Alaska absentee voters must have someone witness them signing their ballots, even during the coronavirus pandemic.

The plaintiffs include the Arctic Village Council, a tribal government; the League of Women Voters of Alaska, which describes itself as “a non-partisan community based volunteer organization;" and two individuals with reported health concerns. The defendants include Lt. Gov. Kevin Meyer, who oversees elections; Gail Fenumiai, as director of the Division of Elections; and the Alaska Division of Elections overall.

With Judge Dani R. Crosby presiding, representatives for the plaintiffs and defendants took the virtual stand, with most attending the hearing via teleconference. Two different motions were addressed.

Motion to dismiss

The first motion discussed, Motion 3, was a motion to dismiss, with the defendant’s attorney appearing first.

“This court has already acknowledged that it is too late for us to reprint or alter absentee ballot materials,” said Lael Harrison, who added that there was an “unreasonable delay" in the plaintiff even filing the lawsuit. ”The only opportunity for relief is a non-enforcement order and then some kind of a public education campaign.

“The division would have to be fighting its own previous efforts to inform; it would be swimming upstream against the materials it’s already put out," she said, citing potential confusion for voters and a big-picture concern of public confidence and credibility issues. "This court should find that this lawsuit was filed too late [...] and dismiss the suit.”

Crosby soon commented that it seemed like the division could minimize confusion by being very clear in its communications, citing no harm if there was confusion over needing a witness. Harrison, however, maintained even the slightest miscommunication could still create further voter disenfranchisement.

Natalie Landreth, of the Native American Rights Fund, took on arguments for the group of plaintiffs, with the American Civil Liberties Union of Alaska and Lawyers' Committee for Civil Rights Under Law also among those representing the plaintiffs.

“We are awkwardly having comment over the phone," she said of Thursday’s arguments, “because we don’t want to take the risk of being in the same room. That’s what this case is about. The plaintiffs are seeking to exercise the most fundamental right in our democracy: the right to vote.”

Calling the requested changes “modest adjustments," Landreth said no one could have predicted where we would be right now.

“None of us imagine in March that we’d be here right now, working from home, homeschooling,” she said. “This situation is so fluid and unpredictable. The timeline is when plaintiffs knew for sure they had a problem. Arctic Village had only ever voted in person. The case was filed two months before election, and a month before ballots were schedule to go out. All this time could’ve used to address relief of any kind, but it wasn’t.”

Landreth said several big changes by the division over the past few weeks undercut the defendants' argument as well, such as the reprinting of ballots for party affiliations and candidate name corrections.

“We never asked for the absentee ballots to be reprinted,” Landreth said. “The plaintiffs were looking for some alternative to let people know. The confusion is really a non-issue because if we work that out to its natural conclusion, someone is confused and they think they need a witness, their ballot still gets counted."

The plaintiffs left things open-ended as far as a mechanism for informing voters of any potential changes go, Landreth said, and did so on purpose.

“A notice on the Division of Elections web page, a couple of PSA’s, postcard,” Landreth suggested. “Count the unsigned ballots. There should be a public announcement in some variety to help ensure it’s as broadly distributed as possible. We’re extremely flexible, but we want you to make some effort to tell people, so if people can do this and don’t have to take this person risk, people also have that choice.”

Harrison, in a rebuttal during her last few minutes of addressing the court, said any changes made now would still be late and that the division is concerned such last-minute adjustments could feed doubts and damage public confidence.

Request for preliminary injunction

The second motion discussed was Motion 1, filed by the plaintiff, and addressed a request for a preliminary injunction.

“There’s nothing about the witnessing requirement that would require people to forego standard precautions the CDC has recommended for interpersonal reactions,” Harrison said. “The burden of the witnessing requirement should not be considered severe in the dramatic sense of a life-risking activity.”

Harrison also said that the witness requirement can’t be considered unconstitutional at one point and then not at another, even with coronavirus case counts in flux.

“The plaintiffs just want to be able to vote,” Landreth said in response. “The pandemic has taken away what is normal. The harm is two-fold: The choice is being forced on them by the electorate [...] and actual disenfranchisement.”

The judge also asked how the witness requirement truly prevents voter fraud, to which Harrison responded that there’s an element of identification involved.

“There’s the deterrent effect as well that you have to consider,” she said, “against the crime of opportunity or that a person isn’t taking this seriously enough. This is an official act in the same way in-person voting is.”

Harrison asked that if Crosby intended to issue a preliminary injunction, that she do so no later than Friday if possible. Harrison also said a decision earlier than not would “give the division a chance to get this up to the Supreme Court on an expedited petition for review.”

“Ensure public confidence in the electoral process by administering voter registration and elections with the highest level of professional standards," Harrison said, citing the DOE mission statement. “That type of a mission requires balancing a number of different goals and a number of different interests. A witnessing requirement is an appropriate way of advancing those interests. Having to try to change the rule undermines that important rule.”

Crosby said at the end of the oral arguments that she expects to put a decision on record by 12:30 p.m. Oct. 5, whether orally or in writing, citing a need to review other related cases as well as the arguments heard Thursday.

The Department of Law did not respond to a separate request for comment Thursday. The Associated Press, however, reported in early September that Meyer maintained any exceptions to the witness requirement law, “even on a piecemeal basis, would erode the foundation upon which Alaskans have built their faith in the election process."

He also encouraged voters to “think creatively” about how to fulfill the witness requirement “in a safe manner,” according to the outlet.

According to several national agencies, the 2020 general election is expected draw a large of amount of votes ahead of Election Day, with many Americans choosing to vote before then instead of on Election Day itself.

The deadline for Alaskans to register to vote or change voter registrations online, by mail or in person is still Oct. 4. A full list of election deadlines and related hours is available on the State of Alaska Division of Elections website.

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