This photo shows a return envelop for 2022 special primary. Ballots must be postmarked or received by the Alaska Division of Elections by June 11. (Ben Hohenstatt / Juneau Empire File)

This photo shows a return envelop for 2022 special primary. Ballots must be postmarked or received by the Alaska Division of Elections by June 11. (Ben Hohenstatt / Juneau Empire File)

Judge rules against Alaska in ballot access case

A state court judge said elections officials cannot certify special primary results until visually impaired voters “are provided a full and fair opportunity to participate”

By BECKY BOHRER

Associated Press

JUNEAU — A state court judge on Friday ruled that Alaska elections officials cannot certify the results of the by-mail special primary for U.S. House until visually impaired voters “are provided a full and fair opportunity to participate” in the election.

Superior Court Judge Una Gandbhir, in her written order, did not say what exactly that would entail. The special primary is on Saturday and the state had set June 25 as the target for certification.

She said it is not the place of the court or the plaintiffs to “impose” a solution and said she strongly urges the parties to work together to find a “timely, appropriate remedy.”

Attorneys with the state Department of Law filed an emergency petition for review with the Alaska Supreme Court, according to a court filing.

“The superior court’s ruling creates enormous confusion and prejudice to the voters. Voters need to know as soon as possible whether the election will proceed on schedule, or whether it will be delayed,” attorneys with the department wrote. They asked the court to rule by 8 p.m. on Saturday.

If the state wins the case, the division would need to begin counting votes to keep its elections timeline on track, state attorneys said. The latest in-person voting sites are slated to close at 8 p.m.

Gandbhir’s decision followed arguments earlier in the day in a case filed this week by Robert Corbisier, executive director of the Alaska State Commission for Human Rights. Corbisier sued state elections officials on behalf of a person identified as B.L., a registered voter in Anchorage with a visual impairment.

Attorneys for Corbisier had asked Gandbhir to prevent election officials from certifying the results of the special primary until the state Division of Elections enacts measures that ensure that voters with visual impairments “are given a full and fair opportunity to cast their votes independently, secretly and privately.” They argued that the by-mail special primary discriminates against voters with visual impairments.

Attorneys for state elections officials countered that adequate methods for secret voting are available for voters with visual impairments.

There would be cascading effects if certification were delayed, including the potential for an August special election for U.S. House to be postponed, attorneys for the state argued.

The special primary is part of a set of elections that will determine who serves the remainder of the late U.S. Rep. Don Young’s term, which expires in January. Young died in March.

The special primary features 48 candidates. Each voter picks one candidate. The four candidates with the most votes will advance to the special election, in which ranked choice voting will be used. The winner of that contest will serve out Young’s term.

The state planned to have the special election coincide with the regular primary on Aug. 16.

“No court should consider lightly an injunction that potentially upends an ongoing election, but neither can the Court allow flawed state procedures to disenfranchise a group of Alaskans who already face tremendous barriers in exercising a fundamental right,” Gandbhir wrote.

Attorneys for the plaintiffs in court filings said the election lacks options that would allow people with visual impairments to cast ballots “without invasive and unlawful assistance from a sighted person.”

But attorneys with the Department of Law, defending elections officials, in court documents said the lawsuit seeks to “upend” the election. They said the division is conducting the election “using the long-established and familiar absentee voting process available to voters in all elections.”

Election officials began sending ballots to registered voters in late April, and there have been opportunities for early and absentee in-person voting in communities around the state. Voters also can have ballots sent to them by fax or online delivery.

Attorneys for Corbisier said the division typically has touch-screen units at in-person polling sites but said the division indicated they would have them at only a few sites for this election. One of the attorneys, Mara Michaletz, told the judge the division could have acted months ago.

She did not immediately respond to an email from The Associated Press sent after business hours seeking comment on the judge’s order.

Attorneys for the Department of Law in court documents said the division first became aware of the commission’s concerns about ballot accessibility on May 14 and has been working with the plaintiffs. They said it was not feasible to send voting tablets to all absentee in-person voting locations, noting that before each election the division must prepare and test all necessary equipment in a process that can take weeks.

They said elections officials worked with Corbisier and B.L. on improvements to the online delivery option, which they said the plaintiffs initially “expressed satisfaction with.”

Kate Demarest, an attorney for the state, told Gandbhir there is “no more relief that can reasonably be awarded for this election tomorrow.”

Gandbhir, in her ruling, said the division seemed to be doing its “sincere best” to provide options under the circumstances. Elections officials have said they opted for a primarily by-mail election because of the tight timeline for holding an election following Young’s death.

But she said “this is not a ‘we tried our best’ scenario; this is a state agency responsible for overseeing the voting rights of all Alaskans.”

Gail Fenumiai, director of the Division of Elections, in an affidavit said the June 25 certification date is not “arbitrary.”

“Any delay in the special primary election or its certification will require costly, detrimental changes to the other elections scheduled to follow this year. State law dictates that with the special primary on June 11, the special general must occur on Aug. 16, the same day as the regular primary election,” she said.

If certification of the special primary is delayed, the division would have to postpone the special election, she said. This would force the division to conduct the special election at a later date than required by law.

If the special election is not held the same day as the regular primary, Fenumiai said it likely would have to be conducted by mail because of the same concerns that prompted the by-mail special primary.

Gandbhir said the division “argues – accurately – that this election, and the one to follow, will be thrown into chaos if the Court enters an injunction and thus delays certification. But this is an unavoidable consequence of the situation with which the Court is presented.”

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