August 25

By Sean Maguire

After thousands of by-mail ballots were rejected for the special congressional primary election in June, three civil rights law firms filed a lawsuit on Tuesday, accusing state officials of violating voters’ constitutional rights by failing to implement a process to fix defective ballots.

The American Civil Liberties Union of Alaska, Native American Rights Fund, and Perkins Coie filed the complaint in Anchorage Superior Court on behalf of two Alaska voters, the League of Women Voters of Alaska and Arctic Village Council.

The complainants noted that 7,468 ballots were rejected from Alaska’s first all by-mail election, or 4.5% of the total votes cast, with a greater proportion of those rejected ballots coming from parts of the state where Alaska Natives make up a majority of the population.

Two-thirds of those rejected ballots were for mistakes made on envelopes containing the ballots. To have by-mail ballots counted, voters need to have identification information on their ballot envelope, a witness watch them sign the envelope, and then have the witness sign it themselves.

The leading cause of rejection was for “improper or sufficient witnessing,” a requirement that was temporarily waived in 2020 by the Alaska Supreme Court during that year’s election due to the COVID-19 pandemic. Voters not signing the envelope or failing to provide a correct identifier were also found to be “common mistakes.”

The Municipality of Anchorage has a “ballot curing” process to allow voters to fix their defective ballots before Election Day to ensure they’re counted, and according to the National Conference of State Legislatures, 24 states have similar systems in place. But the state of Alaska doesn’t have ballot curing provisions written in state statute.

The plaintiffs argue that without a chance to fix their ballots, Alaskans are being disenfranchised and effectively having their constitutional due process rights violated. The 28-page complaint describes how a statewide system could operate, including informing voters about problems with their ballots ahead of Election Day so they can cast a questioned ballot or telling them to submit an affidavit by mail with missing voter information.

In response to questions about the by-mail ballot rejection rate, Gail Fenumiai, director of the state Division of Elections, said in June that her hands were effectively tied. Alaska voters are currently told why their absentee ballots were rejected after an election, but without a ballot curing process explicitly written in state law, the Division of Elections cannot implement one unilaterally, she argued.

The Alaska Legislature debated an election reform bill during the most recent legislative session, which had provisions for ballot curing, but it failed to pass.
Questions to Fenumiai about Tuesday’s lawsuit were referred to the Alaska Department of Law. Patty Sullivan, an agency spokesperson, said the state had not yet been served with the complaint, so attorneys couldn’t comment on the specific allegations being made, but she reiterated what Fenumiai said in June and added that the Division of Elections “is not free to disregard or rewrite the statutes passed by the Legislature.

“However, there was a lawsuit in 2020 that challenged the lack of a notice and cure process, which the Division of Elections successfully defended,” Sullivan said.

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