State to drop Whittier voter misconduct cases after appeals ruling

The voter registration form had no box for what Tupe Smith is. She was born in American Samoa, which makes her a United States national but not a citizen, and Whittier elections officials told her to check citizen. The state charged her with felonies.

On Friday the Alaska Department of Law said it will dismiss the pending voter misconduct prosecutions against Whittier residents, a week after the Court of Appeals found the grand jury that indicted Smith had been given the wrong definition of criminal intent. The department said it cannot prove the required mental state beyond a reasonable doubt. It will review every other pending voter misconduct case in the state one by one, and may ask the Legislature to change the statute.

The cases came out of a 2023 review of registration paperwork. The Division of Elections noticed Smith had identified herself as a national on a Permanent Fund Dividend application and as a citizen on her voter registration, and she was charged with multiple counts of first-degree voter misconduct, a class C felony. She told troopers 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.

The grand jury heard about her interview rather than hearing it. The trooper who conducted it testified from memory that Smith acknowledged she probably knew she should not have voted. The appeals court's opinion describes what actually happened: 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 answered, "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 candidacy declaration and absentee ballot.

The legal error was a definition. The grand jury received the criminal code's definition of "intentionally," which does not apply to the election statute. Until 1980 the offense was written around "wilfully," and the substitution came in an overhaul the Election Review Committee described as largely non-substantive. Writing for the court, Judge Marjorie Allard reached back to the 1960 House Judiciary Committee report on the predecessor offense: "Penalties are made dependent on consciousness of wrongdoing not just the doing of an act."

The trial judge had found the trooper's testimony misleading but declined to dismiss, concluding it had not prejudiced the outcome. The appeals court agreed on the testimony and disagreed on the prejudice, holding that the grand jury "would likely have declined to indict Smith" with correct instructions and a fuller account of what she told troopers. It sent the case back so the state could reindict if it wanted to. Friday's announcement is the state declining.

The department does not accept the reasoning. It says the court read into the statute a showing the current law does not require, and it disputes how the court characterized the trooper's testimony. Acting Attorney General Cori Mills cast the dismissals as an obligation rather than a concession: prosecutors follow the law as written, courts sometimes read it differently, and the state has to re-evaluate. Deputy Attorney General Angie Kemp defended the troopers.

The ACLU and ACLU of Alaska, which filed as friends of the court for Smith, argued that the state's "own forms failed to account for her status" and that prosecuting her after she followed election officials' instructions chills the exercise of constitutional rights. The state's own rules are not consistent on the point: for the Alaska Temporary Assistance Program, nationals from American Samoa and Swain's Island count as citizens.

Neither the ruling nor the department's announcement says how many people were charged, how many cases are being dismissed, how many remain pending statewide, or whether anyone ever investigated Smith's account of what the Whittier officials told her. Nor does either say whether the registration form now has a box for a national.