State to drop Whittier voter misconduct cases after appeals ruling

Prosecutions Dropped

The Alaska Department of Law will dismiss the pending voter misconduct prosecutions against Whittier residents, ending felony cases that grew out of a 2023 review of voter registration paperwork. The department announced the decision Friday, Sept. 11. Its Criminal Division applied a standard set a week earlier by the Alaska Court of Appeals and concluded it cannot prove the required mental state beyond a reasonable doubt. The department will also review every other pending voter misconduct case in the state one by one, and it may ask the Alaska State Legislature to change the statute.

The ruling is Opinion No. 2832, Tupe Smith v. State of Alaska, No. A-14529, issued Sept. 4. Judge Marjorie Allard, joined by Judges Harbison and Terrell, found the grand jury that indicted Smith got the wrong definition of criminal intent. The grand jury also heard a trooper describe his interview with her rather than the recording of it.

The Underlying Case

Smith was born in American Samoa and lives in Whittier. Americans born there are United States nationals, not citizens. In 2023 the Division of Elections noticed she had identified herself as a national on a Permanent Fund Dividend application and as a citizen on her voter registration paperwork. She was charged with multiple counts of first-degree voter misconduct, a class C felony.

The registration form had no box for a national, the opinion records, and Smith told troopers that Whittier elections officials told her to check citizen. She said she would not have voted had she known she was ineligible. She had run for the Whittier school board in 2022 and learned only after winning that she could not serve.

One of two grand jury witnesses, the trooper who interviewed her, testified from memory that she acknowledged she probably knew she should not have voted. The opinion says he asked a long compound question implying she knew, got no answer, then delivered a statement containing four separate questions, to which Smith, whose first language is not English, said yes.

A juror asked whether the conduct would still be a felony if it happened by accident. The foreperson said, "we're not quite sure if she understood prior to being charged with this." The grand jury indicted on the two registration-form counts and returned a no true bill on counts involving her declaration of candidacy and absentee ballot forms.

Judge Peter R. Ramgren had found the testimony misleading but denied dismissal for lack of prejudice. The appeals court agreed on the testimony and disagreed on prejudice. It held the grand jury "would likely have declined to indict Smith if it had received correct instructions and a more complete description of what Smith told the troopers." It remanded so the state could reindict if it chose. Friday's announcement is the state choosing not to.

The Legal Standard

The grand jury got the Title 11 definition of "intentionally," which does not apply to the Title 15 voter misconduct statute, "as the State now concedes." Until 1980 the offense was written around "wilfully." The 1980 Title 15 overhaul substituted "intentionally" in a revision the Election Review Committee called largely non-substantive. The court's phrase comes from the House Judiciary Committee report on the 1960 bill creating the predecessor offense: "Penalties are made dependent on consciousness of wrongdoing not just the doing of an act."

The department says the court read in a showing absent from the current statute, and it disputes the court's characterization of the trooper's testimony. Acting Attorney General Cori Mills framed the dismissals as an obligation. Prosecutors follow the law as written, she said, courts sometimes read it differently, and the state must re-evaluate. Deputy Attorney General Angie Kemp defended the troopers.

The ACLU and ACLU of Alaska, amici for Smith, argued that the state's "own forms failed to account for her status as a U.S. national" and that prosecuting her after she followed election officials' instructions "chills the exercise of constitutional rights." The case sits inside a longer national argument over what voting rights the status of American Samoans carries. Alaska law is not uniform either. Under 7 AAC 45.215(g)(1), the state counts nationals from American Samoa or Swain's Island as citizens for the Alaska Temporary Assistance Program.

Neither record says how many people were charged, how many cases are being dismissed, how many remain pending statewide, whether Smith's account about the Whittier officials was investigated, or whether the form now offers a national option. The department has not said what change it might propose or when its review will finish.