COVID-19 Summary: This case, initially being tracked by the Stanford-MIT Healthy Elections Project, was filed by Arctic Village Council, the League of Women Voters, and individual Alaska voters with underlying health conditions. The plaintiffs sought an order enjoining the State of Alaska from enforcing its notarization/witness requirement for mail in-ballots during the November 2020 election, arguing that the requirement left self-isolated, immunocompromised citizens with an untenable choice between risking their health to vote and not voting at all. On October 13, 2020, the court granted the plaintiffs’ request for a preliminary injunction and ordered the state to count all returned ballots without witness signatures.

This is a case challenging the Alaska Division of Elections’ requirement that eligible Alaskan voters who wish to cast absentee ballots by mail or by electronic transmission either (a) sign their absentee ballot envelopes in the presence of a notary or other authorized official or (b) sign their ballots in the presence of a witness who is at least eighteen years old and obtain a signature from the witness. On September 8, 2020, Arctic Village Council, League of Women Voters of Alaska, and individual Alaska voters with underlying health conditions filed this lawsuit in the Superior Court for the State of Alaska. They sued the Lieutenant Governor of the State of Alaska and the Alaska Division of Elections, arguing that enforcing the requirement during the Covid-19 pandemic would deprive high-risk and self-isolating Alaskan citizens of the fundamental right to vote in violation of the Alaska Constitution. They further argued that the requirement violated the Alaska Constitution’s guarantee of equal rights by treating the plaintiffs and similarly situated (primarily older) voters differently from those individuals with easy access to a witness.

At the time the complaint was filed, Arctic Village Council’s community members were under a strict shelter-in-place order prohibiting members of any household from gathering with anyone outside of their households. Together, the plaintiffs asserted that the witness requirement significantly burdened older voters with underlying health conditions by forcing them to violate distancing protocols and/or risk their health in order to vote in the November 2020 election. They sought a declaration that the witness requirement was unconstitutional and invalid during the Covid-19 pandemic and preliminary and permanent injunctive relief enjoining enforcement of the requirement. The case was assigned to Superior Court Judge Dani Crosby.

On October 5, 2020, the court granted the plaintiffs’ request for a preliminary injunction, finding that the plaintiffs were likely to succeed on the merits, and requested that the parties submit a proposed order. Judge Crosby wrote that enforcing the witness requirement would impose a severe burden on the plaintiffs’ fundamental right to vote by forcing the plaintiffs and other voters to choose between risking their health by coming into contact with a witness or forgoing their right to vote. The court rejected the defendants’ arguments that the witness requirement protected against voter fraud and preserved public confidence in the validity of absentee voting, and that last minute changes would to election administration would damage voter confidence in the integrity and consistency of the election system as a whole.

The court also rejected the defendants’ argument that laches applied in the case and that the plaintiffs should have filed suit earlier, reasoning that the pandemic had not been a static or predictable experience in Alaska or elsewhere.

A week later, the superior court issued a preliminary injunction vacating the witness requirement in the 2020 General Election and ordering the defendants to count all returned absentee ballots without signatures. It further ordered the defendants to communicate to voters that the witness requirement had been suspended, including contacting absentee voters directly, issuing a press release, updating voters via social media, and making several changes to the Alaska Division of Elections website regarding the suspension of the requirement.

The defendants appealed to the Alaska Supreme Court seeking review of the superior court’s injunction for abuse of discretion. The Supreme Court held oral arguments on an expedited basis, but concluded that the superior court had not abused its discretion by granting the preliminary injunction and affirmed the lower court’s order.