Peltola campaign sues to see which absentee ballots Alaska is accepting and rejecting

Democrat Mary Peltola's campaign sued the state Friday for its running record of which absentee ballots are being accepted or rejected in this week's general election, and why, as the count in her close U.S. Senate race against Republican Sen. Dan Sullivan continues.

Under state law, the Division of Elections has until 60 days after the election is certified to mail rejected absentee voters a notice explaining why their ballot didn't count. The campaign says it needs the records now. It "cannot ensure that its voters' lawful votes were properly counted without knowing whose absentee ballots were rejected or questioned, and why," its complaint in Anchorage Superior Court says.

The campaign argues the records are public. A state regulation says the absentee register "may be reviewed by interested persons at any time during the election process at the regional elections offices." Observers appointed by candidates and parties can already attend absentee ballot reviews, the campaign says, so it is asking for "nothing more than a written compilation of those public determinations." A voter's name and ballot status aren't among the six pieces of voter information state law makes confidential, it says. Its request excluded those six, which include birth dates, Social Security numbers and signatures, and didn't seek anyone's marked ballot.

The state Department of Law said Friday that the campaign is seeking "preliminary absentee ballot information that the Division of Elections has long treated as confidential and that Alaska law does not require the Division to release." The information is preliminary and subject to change and is "not yet available to affected voters," the department said. Authorized observers can view certain daily records under confidentiality agreements, it said, but the division doesn't hand them out separately or let observers keep them.

"Releasing preliminary information in the manner sought by the lawsuit would create additional burdens during ballot processing and could delay the timely counting of votes," the department said. It said it would ask the court to protect the information.

The campaign, Alaskans for Mary, first asked each of the division's regional offices on Oct. 27 for the absentee register "showing the accept or reject code" for every returned absentee ballot, or other records showing whose ballots were rejected and why, in electronic form and on a rolling basis. It says it got no response. In a Nov. 4 demand letter, its lawyers acknowledged that state regulations give agencies up to 10 working days to answer a records request, but argued the rules also require an answer "as soon as practicable," and set a deadline of 4 pm the next day. On Nov. 5, the state's attorneys declined to turn over the records immediately, according to the complaint.

The campaign's emergency motion asks a judge for an immediate order requiring the state to turn over the records or let the campaign inspect and copy them. The lawsuit doesn't claim any ballot was wrongly rejected, and it doesn't ask the court to stop the count or change any totals.

Peltola led by 637 first-choice votes in the division's count posted Wednesday afternoon. The Associated Press estimated Wednesday that roughly 75,000 ballots remained to be counted. The division is scheduled to release its next count Tuesday, Nov. 10. Absentee ballots postmarked by Election Day can arrive through Nov. 13 from inside the U.S. and Nov. 18 from overseas, and if no one has a majority once all ballots are counted, a ranked-choice count on Nov. 18 would decide the race.

State law lists the reasons an absentee ballot can be rejected, including problems with the voter's certificate or its witness signature, a postmark after Election Day and missing identification from some first-time voters. The Legislature passed a bill this year that would have given voters a chance to fix minor errors on their ballot envelopes before their ballots were rejected, but Gov. Mike Dunleavy vetoed it, and an override fell two votes short in May.

The suit names Lt. Gov. Nancy Dahlstrom, whose office oversees elections, Elections Director Carol Beecher and the division. The filings are signed by lawyers from the Anchorage firm Reeves Amodio and from the Elias Law Group, whose lawyers on the case are based in Seattle and Washington, D.C.