Alaska Supreme Court declines to order reprinting of election ballots

The Alaska Supreme Court on Friday declined to order the state of Alaska to reprint 800,000 new-design election ballots challenged by U.S. House candidate Alyse Galvin.

The Supreme Court’s action, issued verbally, upholds an earlier decision by Anchorage Superior Court Judge Jennifer Henderson. It is a defeat for Galvin, who alleged that the new design is illegal under state law and the state constitution.

“I’ve been a proud independent for my entire political life. I ran as an independent last time and it’s how I’m running now,” Galvin said. “While I’m disappointed and disagree with this last-minute decision by the Division of Elections, I will continue to fight for better representation for Alaskans all across our state.”

The Alaska Department of Law, representing elections officials, said it was pleased with the decision.

“What is important at this point is to ensure a successful and safe election. That is what the division is focused on, and this helps ensure it can carry out its duty,” it said in a written statement.

Galvin, who is registered as a nonpartisan, won the Democratic nomination for U.S. House. After her primary victory, the state printed general-election ballots that identified Galvin only as “Democratic nominee.” That’s a change from 2018, when Galvin was listed both as the Democratic nominee and had a letter by her name that signified her independent status.

A 2018 Alaska Supreme Court decision allows independents to participate in party-run primaries if the party allows it, and Galvin is one of five independents who have won the Democratic nomination this year.

The new design choice affects all five, plus independents who reached the ballot by gathering signatures. Libertarian Scott Kohlhaas, who was not formally part of Galvin’s lawsuit, will be listed as “Petition nominee” in his race for the Alaska House of Representatives. Independent state House candidate Stephen Trimble will also be listed as a “Petition nominee.” Both men issued statements objecting to their new designation but did not formally join Galvin’s lawsuit.

Henderson, ruling from the bench, said Galvin raised serious questions about whether the state had violated a law requiring ballots to list candidates' political affiliation. She also said Galvin would be irreparably harmed without a new ballot, but because reprinting ballots would cause more harm to the state than to Galvin, she will not order elections officials to take action.

The Supreme Court can overturn a preliminary injunction decision only if a judge abused his or her discretion, Chief Justice Joel Bolger said.

“We are not convinced the petitioner has established that the Superior Court abused its discretion in this case. We therefore affirm the Superior Court decision denying the motion for preliminary injunction,” he said.

Henderson temporarily paused election preparations on Thursday to allow time for attorneys to present their arguments. Henderson’s temporary restraining order required the state to stop printing ballots, but printing was already finished.

Under federal law, the state must mail absentee ballots to Alaskans overseas by Friday, and the state paused the mailing process until the legal issues were resolved. Despite the late ruling, the ballots were being mailed on time, said Tiffany Montemayor, communications director for the Alaska Division of Elections.

“Our staff was there waiting for the word to tell them to go,” she said.

Attorney Kevin Feldis, representing Galvin, argued unsuccessfully that approving a “flawed” ballot will cause Alaskans to question the legitimacy of the election.

Attorneys from the Alaska Division of Election countered that if judges ordered ballots to be reprinted, the entire 2020 election could be jeopardized because elections officials weren’t sure whether they could do so in time for absentee voting, early voting, or Election Day itself.

One justice asked Feldis whether he would support reprinting ballots if there was a 10% chance that the election would be delayed or fall into chaos.

“Maybe it’s 10%. I’ll take that over 100% odds the ballot is defective,” he said.

The division finalized the ballots' design on June 8, according written testimony, but didn’t post a sample version on its website until Sept. 10, after primary election results were certified and the design was sent to the printer.

The change is intended to “avoid voter confusion,” the division said in a written statement, and Laura Fox, an attorney with the Alaska Department of Law, told justices that it was one of several designs that could have been chosen.

There are no state laws or regulations dictating when a sample ballot must be released to the public, and the state hasn’t explained why it waited until 50 days before the election.

“In hindsight, maybe it would have been better if the division announced this sooner,” Fox said.

Galvin didn’t become aware of the new design until a copy of the sample ballot was shared Sept. 14 on social media. The lawsuit was filed the next day.

Alaska’s Democratic Party and Galvin’s attorney accused the state of deliberately delaying the release of the ballot and manipulating it against Galvin, who has made her independence a key part of her political message.

Feldis told Henderson that the new design “affirmatively misrepresents things, and in this political climate, it would have to raise a red flag.”

Lt. Gov. Kevin Meyer, the official in charge of the state’s elections, is a Republican and vowed during his campaign to put the current elections director into office. Galvin’s principal opponent is incumbent Republican Rep. Don Young, and ads by both Young and his Republican supporters have attempted to convince voters that Galvin is actually “a far-left Democrat.”

“Yes, the Democratic Party brought her to the ballot, but no, she is not representing the party,” Feldis said.

Fox, representing the Division of Elections, argued otherwise.

“If she has an affiliation with a party at all, it is with the Democratic Party that nominated her,” she said.

Feldis warned that the courts action on Friday may not be the last word. It is possible for further lawsuits to challenge the legitimacy of an election that uses the state’s ballots.

“Litigation exists all the way up to the point of asking that a candidate not be seated if the election was flawed,” he said.