Arguments are Monday in lawsuit that could upend Alaska’s U.S. House ballot

A state judge will rule as soon as Monday whether a man imprisoned in New York state will remain a candidate for Alaska’s lone U.S. House seat.

Eric Hafner, running as a Democrat, was the sixth-place finisher in Alaska’s primary election for U.S. House. However, after two other candidates withdrew, he was promoted to the state’s “final four” in the November election, which will be conducted using ranked choice voting.

The Alaska Democratic Party filed suit on Thursday, arguing that Hafner, who was convicted of threatening public officials, isn’t an eligible candidate under state law and the U.S. Constitution. The party requested an injunction that would require the Alaska Division of Elections to either run the U.S. House election with three candidates or promote the seventh-place finisher, Republican Gerald Heikes.

Getting that injunction will require that the party’s attorneys prove that they’re likely to succeed on the merits of the case and that allowing Hafner to advance will cause greater harm than if he’s replaced.

Presidential elections do not have a top-four primary. Voters in November may be asked to rank more than four candidates for president.

Anchorage Superior Court Judge Ian Wheeles has scheduled oral arguments in the case for 9 a.m. Monday morning after a whirlwind series of written arguments by attorneys representing the state and the Alaska Democratic Party.

The stakes are high: After Republican Nick Begich became the lone Republican in the race, Cook Political Report — a leading election forecaster — labeled the race a “tossup” between him and incumbent Democratic Rep. Mary Peltola.

Having a second Democrat in the race could cost Peltola some votes against Begich, which might be decisive in a close race, and the results of the race may be significant for control of the U.S. House of Representatives as a whole.

Time is a major factor. Federal law requires that ballots be mailed to international voters no later than Sept. 21. Before doing that, the state needs to finalize and print more than 3,500 ballots and test voting equipment with a draft ballot.

According to an affidavit signed by Alaska Division of Elections director Carol Beecher, a test ballot needs to be available by Wednesday in order to complete testing.

Among the Democratic Party’s arguments is that the U.S. Constitution requires a candidate to be an “inhabitant” of the relevant state “when elected,” and because Hafner isn’t scheduled for release from prison until 2036, that cannot happen.

But in an opposition brief filed Friday morning with the court, attorneys representing the Division of Elections say that the party’s argument falls flat.

“However unlikely these scenarios may be, the Court cannot say — particularly without evidence — whether Mr. Hafner might be released, pardoned, successful on appeal, or otherwise free to become an inhabitant of Alaska some other way,” the brief stated.

Attorneys representing the state said that disqualifying Hafner ahead of time would amount to an additional restriction on who may run for U.S. House, something prohibited under federal caselaw.

Responding to the state’s filing, the party’s attorneys said the prospect of Hafner’s release is a “fanciful projection.”

“There is no evidence that Mr. Hafner has sought a pardon or that there is any proceeding that could possibly result in his release in the next two months,” they wrote.

In addition to the constitutional issue, the party’s attorneys are arguing that the plain language of state law allows the Division of Elections to promote only the fifth-place finisher in cases when a candidate withdraws from the top four.

Responding on Friday, attorneys for the state said that the party is misreading state law and that a candidate becomes a fifth-place finisher when the previous fifth-place finisher gets promoted following a withdrawal.

The party’s attorneys previously argued that Hafner’s candidacy was also invalid under state law because he had listed the address of a mail-forwarding company, rather than his residence, when registering as a candidate.

They dropped that argument on Friday after the Division of Elections shared a copy of Hafner’s registration form, which included an address. The mail-forwarding company’s address was only listed on the election pamphlet.

If the party’s attorneys convince Wheeles that Hafner is not an eligible candidate, they must also convince him that the harm caused by removing Hafner’s name from the ballot is less than the harm from keeping it.

“Mr. Hafner’s presence on the ballot would complicate Plaintiffs’ efforts to reelect Congresswoman Peltola, because it will confuse voters by presenting them with a candidate, putatively a Democrat, who Plaintiffs do not support and who would not be entitled to serve if elected,” the party’s attorneys wrote.

The state is arguing that the limited time available for ballot printing means that the election itself could be delayed if a redesign is needed.

That’s far-fetched, the party’s attorneys argued in writing on Friday, noting that the state’s first mailings are two weeks away, that those ballots are printed in-house, and that the division needed just three days to finalize the ballot design after the primary’s certification on Sept. 1.

Wheeles’ decision, expected on Monday, may not be the final word. Regardless of his decision, it could be appealed to the Alaska Supreme Court on an emergency expedited basis, with a final determination later in the week.

Originally published by the Alaska Beacon, an independent, nonpartisan news organization that covers Alaska state government.