By Sayo Ayeomoni and Cameron Newton

When a once-in-a-lifetime pandemic that cloaks the world in uncertainty, upends the financial status of millions, and causes the death of roughly 239,000 Americans reaches an election cycle, it becomes a given that practices created for and enforced in times of normalcy be adapted for such extreme circumstances. Given that voting procedures are developed on a state-by-state basis, fifty different approaches to voting in a pandemic have necessarily been developed. Since thirty-four states are allowing voters to obtain an absentee ballot either due to coronavirus-related fears or without providing an excuse, rules about how those absentee ballots are filled out have naturally come into question. In Alaska, those questions have emerged with great focus centered on the Indigenous peoples who make up 15.6% of the state’s population.

Prior to the coronavirus pandemic, Alaska required its citizens who voted via absentee ballot to sign the voter certification in front of either a notary or other statutorily named officials—if one of those officials cannot be found, then the certification must be signed in front of someone who is eighteen years old or older. Understandably, this provision requiring human interaction has led to much concern when enforced in the midst of a pandemic, in which coming within six feet of someone outside of one’s own household is strongly discouraged. In response to these circumstances, on September 8, the Arctic Village Council, League of Women Voters of Alaska, among others, filed a lawsuit in Alaska state court claiming that the witness requirement violates the Alaska Constitution by placing a “substantial and impermissible burden”  on the right to vote.

The plaintiffs were primarily concerned with the ways in which the witness requirement imperiled the health of populations most vulnerable to the coronavirus’ most deleterious effects. One defendant group in particular, the Arctic Village Council, has reason to be worried:  Native Americans are 5.3 times as likely as white Americans to be hospitalized due to the coronavirus, which is “the largest disparity for any racial or ethnic group.” Additionally, Native Americans are met with extra risk due to the underfunded and underequipped hospitals in their areas. Because of this alarming data as well as previous outbreaks, the Arctic Village Council has implemented strict guidelines that are meant to curb the spread of a virus that could decimate the community. Unfortunately for them, many of the safeguards put into place do not mesh with the witness requirement, which they claimed served as an “absolute bar” to voting for any member of the community who is isolating without immediate access to a notary or an individual who is eighteen years old or older.

Ultimately, the Superior Court (Alaska’s trial court of general jurisdiction), issued an injunction on October 5, 2020, that did away with the witness requirement for the 2020 election cycle. At the outset, the court determined that the plaintiffs did not pass a balance of hardships standard, because the potential risks they faced did not outweigh the injury to the state, which would have to significantly alter its ballot practices and inform the public of the change in such a short amount of time. However, the court did apply a balancing test used for election law challenges wherein the government’s interest must be more compelling and the fit must be tighter whenever the burden on voting becomes more severe. It found that the burden placed on plaintiffs—a choice between voting or dying—is quite severe, certainly outweighing the defense’s arguments citing voting fraud detection that the witness requirement has never before aided. Another element of the defense’s argument claimed that the invalidation of the witness requirement would decrease voter confidence in the integrity of the race, something the court disagreed with, concluding that such a move could actually have the opposite effect. Thus, the burden placed on the plaintiffs was found to outweigh the government’s interest, leading to the granting of the injunction.

Key to the analysis of this decision is two important election law doctrines that can often rub up against one another when applied in situations such as these. One such concept is the Anderson-Burdick test that courts have employed when dealing with the fundamental right to vote, and the other is the Purcell principle, which cautions courts against last minute judicial changes in election rules.

The Anderson-Burdick test, in which the level of scrutiny applied increases as the burden imposed on voting does, is essentially what the Superior Court employed in its evaluation of the Alaska witness signature requirement. Certainly a good argument was made that the burden imposed on voters here was quite significant. Alaskans had to choose between voting and putting their health at risk by coming into contact with others in order to validate their absentee ballot. Mandating the signature requirement could also serve as a complete bar towards voting, as the only other alternative—in-person voting—is much riskier. Furthermore, the burden on voters to cast their votes safely significantly outweighs the purported benefits or interests the state stands to gain in enforcing this requirement. Surely, the state has a compelling interest in preventing voter fraud, but as the Superior Court held, this requirement truly does nothing to detect or deter such fraud.

Of course, it can also be argued that this is a minimal burden because people are still interacting with others anyway—be it in search of food and/or other daily essentials—all while in-person voting is still available. Additionally, the absentee ballots were available much earlier into the election, thereby giving voters ample time to find a way to comply with the witness signature requirement. If the burden is viewed in this light, it could be seen as a slight one, meaning that the antifraud justification is sufficient. Although the malleability of classifying the “burden” calls this test into question, that is not a discussion for this blog post. For now, it is sufficient to point out this flaw and recognize that the burden on voters in this situation is more likely severe than not.

Additionally, the Purcell principle cautions against last minute judicial changes in election rules because of the risk of confusion to voters and election administrators. With the election less than a month away, this certainly counts as a last-minute change. More importantly, voting is already underway with more than 110,000 absentee ballots sent to voters who requested them, and nearly 11,000 already returned.

However, it does not seem like there is a “risk of confusion” to voters in this scenario. Arguably, the Purcell principle favors this change to the rule because, since all voters are being told to do is ignore the witness requirement, the worry of confusion is minimal. There is also a low risk of administrative error in this situation. Most importantly, upholding this rule would lead to significant disenfranchisement of hundreds, if not thousands of Alaskans. The pandemic has had more adverse effects on older populations as well as Indigenous Alaskans. About 18% of the population is age sixty or older, and as of 2016, people age sixty-five or older made up 13.2% of voting age population in Alaska.

When the case did move on to the Alaska Supreme Court, it affirmed the granting of the injunction on October 12, representing a massive victory for the Indigenous peoples of Alaska. Temporarily eliminating a voting practice that is functionally useless in terms of preventing fraud but extremely dangerous in terms of increasing COVID-19 risk is a monumental victory for a group that has been neglected throughout the pandemic. At a time in which Indigenous peoples currently account for 48% of the total coronavirus deaths in the state, the choice initially presented to them was to vote or die. They fought that harmful binary obstacle. They won.

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