Alaska Supreme Court reverses lower court decision, allowing certification of U.S. House special primary results

The Alaska Supreme Court on Saturday reversed a lower court ruling that would have delayed the certification of U.S. House primary election results until visually impaired voters were given “a full and fair opportunity to vote independently, secretly and privately.”

The state appealed the Superior Court’s decision to the Alaska Supreme Court soon after the lower court ruled in favor of a request from the Alaska State Commission for Human Rights to ensure visually impaired voters are given adequate voting access.

“Where the Division has — and continues — to discriminate and effectively disenfranchise a population of voters on the basis of their disability, the law requires that it must be ordered to cease such a practice immediately, without regard to the ‘cascading’ consequences,” attorneys for the Alaska State Commission for Human Rights wrote in their filing to the Supreme Court. The commission did not immediately respond to a request for comment on the Supreme Court decision.

Attorneys for the state argued that that delaying the certification of election results would have far-reaching consequences on the election. It would require delaying the special general election, currently scheduled on Aug. 16, to a later date, meaning Alaska’s lone U.S. House seat would remain vacant for a longer period. It would also force that election — the state’s first under ranked choice voting — to be held entirely by mail.

An explanation for the Supreme Court’s decision “will follow at a later date,” according to the court’s order, issued late Saturday morning.

“We appreciate the Supreme Court so quickly understanding the error of the superior court and allowing this important election to proceed,” wrote Department of Law spokesperson Patty Sullivan in a statement.

Nick Begich, a Republican candidate in the U.S. House race, also filed a motion to intervene in the case, siding with the state and arguing that allowing a group of disabled individuals to vote beyond the declared Election Day would be “fundamentally unfair.”

Begich’s attorneys argued that the lower court’s decision to delay certification “silenced the voices of all Alaskans who have already and will today cast their vote in a timely fashion.”

The lower court ruling, from Anchorage Superior Court Judge Una Gandbhir, came Friday after hearing arguments in a lawsuit filed earlier this week by the Alaska State Commission for Human Rights against the Alaska Division of Elections and Lt. Gov. Keven Meyer, who oversees the division. The commission asserted that the primary, which is the state’s first all-mail election, does not provide visually impaired voters in the state adequate voting access.

The order came just a day before the Saturday voting deadline.

“No court should consider lightly an injunction that potentially upends an ongoing election, but neither can the Court allow flawed state procedures to disenfranchise a group of Alaskans who already face tremendous barriers in exercising a fundamental right,” Gandbhir wrote in her decision to grant the preliminary injunction.

[Saturday is the deadline for Alaskans to send in ballots in the special U.S. House primary. Candidates are still scrambling to win them.]

Gandbhir’s decision did not specify what giving visually impaired voters “a full and fair” opportunity to vote would entail. Attorneys for the Division of Elections filed an emergency petition to the Alaska Supreme Court asking them to reverse the injunction soon after it was filed.

“This will shut down the special primary election, with cascading scheduling consequences that will make an in-person special general election impossible,” they argued in a court filing.

The certification of election results is scheduled to take place June 25, two weeks after the Saturday voting deadline.

“There would not be anything preliminary about an injunction here. It would have the effect of stopping an election that happens tomorrow,” Kate Demarest, an attorney representing the Division of Elections, said during a court hearing Friday.

Demarest said the June 25 certification goal is “the true drop-dead date in order to accomplish the really important goal” of holding the general election in-person on Aug. 16 as currently scheduled. Delaying the certification, she said, could force the division to hold the special general election — which will be the state’s first ranked-choice voting election — entirely by mail, and at a later date than Aug. 16, which will also be the primary voting day for all November races.

“That is a result that I think we all agree is not in the division’s interest, not in the plaintiff’s interest certainly and it’s not in the public’s interest,” Demarest said. “And it would extend Alaska’s lack of representation in the House of Representatives even longer.”

The human rights commission argued that the all-mail ballots are not accessible to visually impaired voters without assistance from a seeing individual, and that solutions currently offered by the division are inadequate.

Those solutions include offering accessible voting machines in just a handful of the 170 in-person voting places across the state. Such devices are typically offered in all polling locations. Division director Gail Fenumiai has said that they are not available in all locations because the division had only weeks to prepare for the special election triggered by the sudden death of U.S. Rep. Don Young in March.

[Q&A: How to vote in Alaska’s first all-mail election]

The commission also argued that the option of downloading and filling out a ballot online — which visually impaired voters can do using accessible software — is insufficient because they must then print the ballot and place it in a secrecy sleeve and envelope, which requires the assistance of a seeing individual.

“Putting the burden of problem solving this issue on the visually impaired voters is inconsistent with the law,” said Mara Michaletz, the attorney representing the commission, which filed the lawsuit on behalf of Bonnie Lucas, a visually impaired Anchorage voter.

Lucas, along with the human right commission Executive Director Robert Corbisier, met with Division of Elections representatives last month. That is when they learned that accessible voting machines would not be available in every in-person primary voting location. Attempts to try to address concerns did not lead to sufficient solutions, according to interviews with Lucas and court filings from attorneys representing Corbisier. The lack of solution ultimately led to filing a court challenge just days before the final voting day.

“It’s really the right thing. I know it’s an imposition for the Division of Elections,” said Lucas, who serves as president of the Alaska chapter of the National Federation of the Blind. Lucas said visually impaired Alaskans have “never felt like voting was really accessible.”

Corbisier, who filed the legal challenge, was appointed to the role of executive director of the Alaska State Commission for Human Rights by Republican Gov. Mike Dunleavy in 2019. Prior to that, he worked directly for Dunleavy as an attorney in the Department of Law, according to his LinkedIn profile. The commission declined to comment on the case.

Several states faced lawsuits by visually impaired voters in 2020, when many turned to all-mail voting in response to the coronavirus pandemic. Many changed their voting options in response.

“If someone had been thinking and noting what was going on in the other states, they would have been starting to get everything ready so that everyone could vote and everyone could vote a secret and accessible ballot,” Lucas said.

According to a 2016 survey by the National Federation of the Blind, there are around 17,600 Alaskans with a visual disability.

Blind and visually impaired voters said in interviews that voting has been challenging for them in previous elections — not just the current, all-mail one. And several said the lawsuit was needed.

“I absolutely do think it’s warranted,” said Rick Webb, who serves on the board of the Alaska Center for the Blind and Visually Impaired. Previously, he said he relied on his wife to vote, but that made him uncomfortable enough that he stopped.

“We don’t necessarily see eye to eye on how to vote,” Webb said. “For all I know, she’s voting the way she wanted, not the way I wanted. I had no way of knowing.”

Nate Kile, program director at the Alaska Center for the Blind and Visually Impaired, said he has used the accessible voting machines in previous elections. But even when the machines are available, the situation isn’t perfect. Kile said in one election, he simply gave up after poll workers failed to operate the accessible voting machine, and instead relied on a poll worker to fill out the ballot for him.

“I allowed one of the volunteers there to assist me with the voting. Some people would not tolerate that,” Kile said. “We want people to have the right for that anonymity, but they just did not know how to use (the machine) at the time.”

Lucas said she waited for an hour for polling workers to figure out how to operate the accessible voting machines when she voted in the 2020 presidential elections.

Several states allow voting entirely by computer for visually impaired voters. Lucas and others said that would be the ideal solution.

“I know some people just really don’t worry about voting,” Lucas said, because they find it too challenging. “Plenty of people have gone to use the (accessible) machine, and it’s just not available.”

In the 2020 election, visually impaired Ketchikan resident Sarah Fitzgerald said she had to help election workers figure out how to operate the accessible voting machine.

“It was almost like I was the one with the knowledge about how low vision tech usually works, and they were asking me for clarification,” she said. “So it was a very frustrating experience, and it made me singled out.”

“And we never did get it to work. I again had to rely on a sighted person to then take me in and do my ballot, which then means I don’t have a completely private ballot, like every other sighted person does,” Fitzgerald said.

In the special U.S. House primary election, she said she had an acquaintance assist her in filling out her mail-in ballot.

“Again, I don’t have the same privacy as any other sighted person would,” she said.