A state court judge plans to decide Monday whether to block enforcement of witness requirements for absentee ballots in Alaska.
Superior Court Judge Dani Crosby heard arguments Thursday in the case brought by Arctic Village Council, a tribal government; the League of Women Voters of Alaska; and two individuals who have cited health concerns amid the COVID-19 pandemic.
An attorney for the state, Lael Harrison, argued a change in requirements so close to the Nov. 3 general election could cause voter confusion. She also said the Division of Elections is concerned about its credibility with voters.
“They’re concerned about voters saying to themselves, ‘How do we know they won’t change it back again later without telling us? How do we know they won’t change something else at the last minute?’” she said.
In court documents, attorneys for the state have said ballot envelopes listing the requirement have been printed and that the plaintiffs “inexcusably” waited until September to sue.
Natalie Landreth, an attorney for the plaintiffs, said the division had recently made ballot changes, showing changes could be made, and said the state was responsible for some delays after the case was filed.
The division already has sent ballots to military and overseas voters and said it plans to begin mailing requested absentee ballots to voters in-state and domestically in the coming days. More than 98,000 people have requested a ballot by mail or email, division spokesperson Tiffany Montemayor said, and the division expects that number to grow. The deadline to request an absentee ballot is Oct. 24.
Attorneys for the plaintiffs, in their complaint, contend the witness requirement is unconstitutional during the pandemic and a bar to voting for those who don’t live with someone who can be a witness. The requirement forces the plaintiffs to “choose between their health and the right to vote,” attorneys for the Native American Rights Fund, American Civil Liberties Union of Alaska and Lawyers’ Committee for Civil Rights Under Law wrote.
Of the 43,545 absentee ballots returned for the August primary, 1,333 were rejected and of those, 458 were rejected for lack of witnessing, state attorneys wrote in court documents.
Those with ballots rejected in the August primary were notified of the rejection and the reason for it, so those with ballots rejected for lack of witnessing are on notice of the requirement ahead of the general election, the state attorneys say.
The attorneys also say the Arctic Village Council is partly to blame “for the harm it complains of,” writing the tribe imposed an order that it now says inhibits voters from having witnesses for absentee ballots. The state attorneys argued Arctic Village made an exception, of sorts, to the order for the primary, when at least one enforcement patroller agreed to offer door-to-door in-person voting to those who had yet to vote.
The tribal government restricted residents from gathering with those outside their households and barred congregating at community facilities in efforts to guard against the coronavirus, according to an affidavit from tribal administrator Tiffany Yatlin. At least 50 residents do not live in a household with someone over 18 years of age, she said. That is the minimum age for someone to act as a witness.
Landreth said Thursday the state argues it went to great lengths to help ensure people in Arctic Village were able to vote in the primary. She said the best lengths state elections officials could go through for the general election is to not require a witness.
Harrison said an intent behind the witness requirement was to give weight to the process.