Alaska prosecutors must prove a voter knew a registration form was false

Alaska prosecutors charging first-degree voter misconduct based on a false sworn statement must prove the person acted with a consciousness of wrongdoing, not merely that the person deliberately made the statement, the state Court of Appeals ruled Friday. The decision raises the bar in a case that has drawn national attention.

Tupe Smith was born in American Samoa, which makes her a U.S. national. She holds a U.S. passport and was born on American soil, but she is not a citizen and cannot vote. That distinction applies to American Samoa alone among U.S. territories, and it is not widely understood.

Smith, who lives in Whittier, checked the box marked "citizen of the United States" on voter registration paperwork that offered no box for U.S. nationals. She told troopers that Whittier election officials had instructed her to check it, and that she would not have voted had she known she was ineligible. She won a seat on the Whittier school board in 2022 and says she learned only afterward that she could not serve. She was charged with a felony.

The court's ruling turns on two words the Legislature used differently. Swearing falsely on purpose is a felony; knowingly making a false statement on a registration form is a misdemeanor. The state argued the two mean essentially the same thing. The court disagreed, holding that the felony requires proof the defendant "acted with a consciousness of wrongdoing."

The grand jury that indicted Smith was given the wrong definition, drawn from the general criminal code rather than election law. Jurors asked whether the conduct would still be a felony if done "by accident," and declined to indict on other counts. A trooper had told them Smith acknowledged she probably knew she should not have voted. The lower court called that testimony misleading but let the indictment stand; the appeals court did not.

The case is part of a larger argument about when a voting mistake should be a crime. At a hearing last month, Rep. Andrew Gray said 11 people in Whittier were arrested "not because they purposely voted, but because they didn't know that they couldn't."

The case goes back to superior court, where the state may seek a new indictment under the clarified standard.