About two months before the 2020 general election, a village government, a nonpartisan political organization, and two individual Alaska voters sought to enjoin the State from enforcing a statute that requires absentee ballots to be witnessed by an official or other adult. They argued that, under the unusual circumstances posed by the COVID-19 pandemic, the witness requirement unconstitutionally burdened the right to vote. The superior court granted a preliminary injunction, concluding that the State's interests in maintaining the witness requirement were outweighed by the burden that requirement would impose on the right to vote during times of community lockdowns and strict limits on person-to-person contact. The court also rejected the State's laches defense, reasoning that the unpredictability of the pandemic's course made it reasonable for the plaintiffs to wait as long as they did before filing suit.
The State filed a petition for review. After an expedited oral argument we affirmed the superior court's decision, finding no abuse of discretion. This opinion explains our reasoning.
II. FACTS AND PROCEEDINGS
A. The Witness Requirement
An Alaska statute requires that voters who
As set out on the sample ballot the Division submitted to the superior court, there is no requirement that the witness — whether an official or other adult — know the voter, ask for identification, or confirm the voter's eligibility to vote; the witness's only obligation is to certify that the voter signed the voter's certificate in the witness's presence.
B. The Lawsuit And Request For Injunctive Relief
The 2020 general election was scheduled for November 3. On September 8 the Arctic Village Council, the League of Women Voters of Alaska, and two individuals, Elizabeth L. Jones and Barbara Clark, filed a complaint in superior court seeking to enjoin enforcement of the absentee ballot witness requirement for the upcoming election. They asserted that the Council, a federally recognized tribal government, was "responsible for the health, safety, and welfare of its members"; "that COVID-19-related deaths among Native communities [were] highest [of] any demographic group in the United States"; and that the Council was taking strict measures to control the spread of the virus, including, most recently, "a community-wide shelter in place order that restricted all residents from gathering with any person outside of their households and prohibited residents from congregating at community facilities." They asserted that the witness requirement "serve[d] as an absolute bar for many members who are self-isolating, do not have access to a notary because of shelter-in-place requirements, and do not have [anyone] at least eighteen years old to sign and witness their signing absentee ballots."
The complaint described the League of Women Voters of Alaska as "a nonpartisan political organization that works to encourage informed and active participation in government," with several hundred members "throughout Alaska," many of whom are "senior citizens and ... therefore particularly vulnerable to COVID-19." It alleged that the witness requirement could make its members "face a choice between risking their health in order to vote or not voting at all."
The complaint identified the first individual plaintiff, Jones, as a 71-year-old Alaskan who lived "alone in a log cabin in Fairbanks" and had voted in every general election for the past 50 years. The complaint asserted that Jones was "at increased risk [of] severe illness from COVID-19 because [of her] underlying health conditions: high blood pressure, obesity, and [pulmonary disease]." The complaint alleged that Jones had "been self-isolating at her home since late February, only leaving her home when necessary and choosing curbside service for groceries, prescription drugs, garbage drop-off, and veterinarian service for her dog in order to avoid
The allegations regarding the other individual plaintiff, Clark, were similar. Clark was 72 years old and lived alone; she considered herself "a `super voter' and [had voted] in every major election." Like Jones, Clark had "underlying health conditions that put her at increased risk [of] severe illness from COVID-19: high blood pressure and obesity." The complaint alleged that Clark had been "self-isolating," leaving home only for "necessities" like medical appointments and COVID testing. According to the complaint, Clark wanted to vote by mail but lacked ready access to a notary or other adult witness. And like Jones, she believed that the witness requirement would force her to choose between voting and "an unacceptable risk to her health."
As more general background to the plaintiffs' claims, the complaint detailed the history of COVID-19, focusing on its severity in the United States and particularly among "racial minority groups, such as Native Americans and Alaska Natives." The complaint cited the advice of the Centers for Disease Control and Prevention (CDC) regarding social distancing and minimizing person-to-person contact in order to "reduce the spread of COVID-19." The complaint noted infectious disease experts' predictions that the virus would continue to spread, as well as the experts' fears about the impact of in-person voting on case counts. Turning to Alaska's experience in particular, the complaint described the public health measures taken by the State and local governments, including travel restrictions and stay-at-home orders in a number of communities.
For its specific claims for relief, the complaint alleged that maintaining the witness requirement during the pandemic's restrictions on person-to-person contact would violate voters' constitutional rights to vote
The plaintiffs also filed a motion for a preliminary injunction, supported by the declarations of Jones and Clark as well as the declaration of Tiffany Yatlin, an Arctic Village administrator. Yatlin described the effects of the pandemic in Arctic Village and the challenges faced by its residents. She attested that despite strict social-distancing guidelines, the village of 150 residents had "at least three documented cases" of infection, and that "community members [had] to be medevacked by air ambulance because of complications related to COVID-19." Yatlin explained that the village has only one small clinic, staffed by a single health aide, and that the nearest hospital is in Fairbanks, 233 air miles away.
Yatlin attested that the Arctic Village Council had established strict social-distancing guidelines in early March, closing all facilities to the public and ordering staff to work from home. It closed the village to outside visitors a month later and restricted all air carrier passenger service into the community. To further combat the spread of the virus, the Council issued a community-wide shelter-in-place order, preventing residents
C. The State's Response
The State filed an opposition to the motion for preliminary injunction and a cross-motion to dismiss the suit. It argued that the suit was barred by laches because the plaintiffs had waited too long to seek relief and, alternatively, that the standards for the issuance of a preliminary injunction were not met. The State supported its position with the affidavits of Gail Fenumiai, Director of the Division of Elections, and other Division employees.
Fenumiai explained the many challenges the Division faced in planning the 2020 primary and general elections during the COVID-19 pandemic, including keeping polling places and poll workers safe from infection. She described the absentee voting process, from the voter's application for an absentee ballot through the Division's review of the ballots cast. She described the work the Division had done to help ensure that in-person voting could occur, including in locations with shutdown orders. She also described the efforts that had already gone into preparing and distributing absentee ballots, training election workers how to review and log absentee ballots, and educating the public about their requirements.
The affidavit of Jeremy Johnson, Elections Supervisor of the Division's Fairbanks office, described his communications with officials in Arctic Village seeking to ensure that village residents could vote absentee despite the shutdown. He attested that a local official had "agreed to go door-to-door on his patrols to offer the opportunity to vote absentee-in-person to any voter who had not already voted." Carol Thompson, Operations Manager of the Division's Anchorage office, described "irregularities in absentee ballot applications" in two prior elections. She explained that in 2014 "it appeared that numerous applications were written in the same handwriting," but "there was not enough evidence of fraud at that time to warrant opening an investigation." She attested that the 2016 election occurred without incident, but in 2018 the Division "again observed the unusual circumstance of many absentee ballot applications in the same handwriting" from a single house district. This time, the case was referred to the Alaska State Troopers.
D. Proceedings On The Request For Injunctive Relief
Twenty days after filing their complaint, the plaintiffs moved for a temporary restraining order asking the superior court to restrain the Division from mailing absentee ballots until the court had decided the pending motion for preliminary injunction; a temporary halt, they argued, would allow the ballots and accompanying instructions to be modified if necessary. The court denied the motion, reasoning that even if the witness requirement were eliminated, "it would not be reasonable to require the Division of Elections to modify the absentee ballot packets" so late in the process. In addition, the court reasoned, it could "grant different relief," such as requiring the Division to communicate any changes by other means, including "appropriate websites, ... television and radio,... [and] social media."
The superior court heard oral argument on October 1 and issued a written order on October 5, granting the plaintiffs' motion for preliminary injunction and denying the State's motion to dismiss. The court reasoned that the plaintiffs could not meet the balance of hardships standard for injunctive relief, but that they had made a clear showing of probable success on the merits and were therefore entitled to the requested injunction under that alternative standard. The court found that the State's asserted interests in
The State filed a petition for review. We heard oral argument on October 12 on an expedited basis and issued a summary order that same day affirming the superior court's grant of the preliminary injunction. We concluded "that the superior court did not abuse its discretion by granting the preliminary injunction" and said that a full opinion would follow. Today's opinion explains our reasoning.
III. STANDARD OF REVIEW
We recently explained the different standards of review that apply to our consideration of a superior court's decision to grant or deny preliminary injunctive relief: "A court's legal conclusions about irreparable harm, adequate protection, and the probability of success on the merits of a claim may present pure questions of law based on undisputed facts or may involve mixed questions of fact and law."
The superior court in this case granted preliminary injunctive relief on grounds that (1) laches did not bar the plaintiffs' claim, and (2) the plaintiffs had demonstrated a probability of success on the merits of their constitutional claim. The court's rejection of the laches defense implicates three different standards of review,
Finally, "once a party establishes the required elements for preliminary injunctive relief, the [superior] court exercises its discretionary authority" when deciding whether to grant or deny the requested relief; "thus, we review that decision for abuse of discretion."
A. Like The Superior Court, We Consider The Claim For A Preliminary Injunction Under The Probable Success On The Merits Standard.
We have recognized two different standards for determining whether a party should be granted a preliminary injunction; which standard applies depends on "the nature of the threatened injury."
The superior court considered both standards, concluding that while the plaintiffs could not meet the "balance of the hardships" standard, they did "[make] a clear showing of probable success on the merits" and were therefore entitled to the requested injunction. Considering first the balance of hardships standard, the court determined that the plaintiffs' claims were not "frivolous or obviously without merit." The court cited the plaintiffs' affidavits about the significant risks to health if the witness requirement was not lifted for the general election. But the court was unable to say that the elimination of the witness requirement would cause only "slight injury" to the State's interests; the court concluded, therefore, that the plaintiffs could not meet the balance of hardships standard for injunctive relief. We assume without deciding that the superior court's reasoning on this issue was correct, and we therefore proceed to consider the standard on which the superior court based its decision: probable success on the merits.
B. The Superior Court Did Not Abuse Its Discretion By Granting A Preliminary Injunction Based On The Plaintiffs' Probability Of Success On The Merits.
The superior court concluded that the plaintiffs would likely succeed on their first claim: that the witness requirement impermissibly burdened Alaskans' right to vote under article V, section 1 of the Alaska Constitution when viewed in the context of the pandemic and resulting risks inherent in person-to-person contact.
The State challenges the superior court's analysis on two grounds. First, it argues that the court relied on "speculation rather than requiring actual supporting evidence" and gave "short shrift to the Division's concerns about last-minute suspension of election laws" in its analysis of the State's interests. Second, the State argues that the plaintiffs were not clearly likely to succeed on the merits "because they sued too late and their claims [were] barred by laches."
1. It was not an abuse of discretion to reject the State's laches defense.
We address the laches argument first, concluding that the superior court did not abuse its discretion when it rejected laches as a defense to the plaintiffs' claims.
The State argues that "[t]he plaintiffs were aware of the pandemic and the witness requirement" months before they brought suit, citing State and federal emergency declarations in March and Arctic Village's own imposition of restrictions "as early as March 13," with "its first lockdown on May 16." The superior court observed that "[w]ith 20/20 hindsight, Plaintiffs would have filed suit earlier." But the court decided that "20/20 hindsight is not required" and that the plaintiffs "did not unreasonably delay in bringing their suit." The court observed that "[t]he pandemic has not been a static or predictable experience in Alaska or elsewhere," that "COVID-19 statistics have varied significantly since the Governor of Alaska declared a public health emergency on March 12," and that "[t]he number of COVID-19 cases and deaths rises and falls daily, not following any particular trajectory for any appreciable amount of time." The State does not challenge any of these findings of fact. The court also found that the delay did not cause undue prejudice to the State, as the court's order did not contemplate "modification or reprinting of the absentee ballot packages" but only further training of Division employees on how to handle unwitnessed ballots and "a carefully targeted public education plan," all of which could be accomplished in the time remaining.
The court's findings have substantial support in the evidence. And given those findings, we cannot conclude that it abused its discretion when it declined to apply the laches doctrine to bar the plaintiffs' claims.
2. The superior court did not err by concluding that the witness requirement impermissibly burdened the right to vote in the context of the pandemic.
In addressing the substance of the State's constitutional argument, we — like the superior court — use our established four-step analysis for assessing an election law's constitutionality under the Alaska Constitution. "We start with the bedrock principle that `the right of the citizens to cast their ballots and thus participate in the selection of those who control their government is one of the fundamental prerogatives of citizenship.'"
"[S]ubstantial burdens require compelling [State] interests narrowly tailored to minimally infringe on the right; modest or minimal burdens require only that the law is reasonable, non-discriminatory, and advances `important regulatory interests.'"
We address each factor of this test below.
a. The plaintiffs asserted a constitutionally protected right.
The superior court found that the plaintiffs "have asserted the constitutionally protected right to vote absentee." The State does not dispute that this is a constitutionally protected right; its position relies on the other three factors in our four-part test. For purposes of our analysis, therefore, we assume that the plaintiffs have asserted a constitutionally protected right under the Alaska Constitution.
b. Enforcing the witness requirement during the COVID-19 pandemic would place a substantial burden on the right to vote.
Our next task is to determine the extent to which the witness requirement burdens the right to vote. The superior court reasoned that enforcing the witness requirement would "force Plaintiffs and other voters to choose between risking their health by coming into contact with a witness or forgo[ing] their right to vote entirely. This is a severe burden on Plaintiffs' fundamental right to vote."
The State asserts that the witness requirement imposes only a minimal burden, not significantly different from "any other day-to-day life activity" during the pandemic. It argues that the superior court relied on "speculation" rather than "actual supporting evidence" in deciding that the witness requirement would make voting unsafe for vulnerable people. And it provides a list of ways voters can "safely" vote absentee, including signing the ballot inside their home while a witness outside watches through a window, or signing the ballot "six, ten, or twenty" feet away from the observing witness.
But we agree with the superior court's conclusion, based on the plaintiffs' affidavits, that the burden the witness requirement imposes on voters during the pandemic is substantial. Clark and Jones, both elderly women with significant health issues, described the fear and anxiety they experienced when essential activities required them to leave their homes. Both women followed CDC guidelines strictly, self-isolating since early 2020; they avoided in-person interactions as much as possible. Because they lived alone, they had no one close at hand to witness their absentee ballots. Both women, as committed voters, stated that if the witness requirement remained in effect it would force them to choose between their safety and exercising their right to vote.
Yatlin, the Arctic Village administrator, voiced similar concerns on a broader scale as she described the impact COVID-19 has had on her community. Yatlin explained that her village was under strict quarantine at the time of the proceedings in superior court. Yatlin noted that Native communities like Arctic Village are more vulnerable to COVID-19 and that Arctic Village has limited medical resources for caring for its population if the infection spreads, as those suffering severe symptoms would need to be medevaced to the nearest hospital 233 air miles away. According to Yatlin, "there is no way our people can fully participate in the upcoming general election with the current restrictions on mail in ballots in place."
This affidavit testimony supports the superior court's finding that the witness requirement would force some voters to choose between risking their health and exercising their right to vote, particularly voters who are especially vulnerable to contracting COVID-19 and especially likely to suffer severe effects. And we take judicial notice of public records supporting the reasonableness of the
The State points out that the individual plaintiffs voted absentee in the August primary and could do so again; however, a willingness to accept a risk once does not mean that the risk is less daunting the second time around, especially in the context of a steady increase in case counts, infection rates, and deaths. And although the State proposes methods by which relatively safe signature-witnessing could occur — through a closed window, or from some distance
c. The State's asserted interests are compelling at least in the abstract.
Having concluded that the witness requirement imposes a substantial burden in the context of the COVID-19 pandemic, we must decide whether the State's justifications for the requirement reflect "compelling interests narrowly tailored to minimally infringe on that right."
The State relies on several justifications for maintaining the witness requirement during the pandemic, the first of which is "deterring voter fraud." Although the State concedes that "[f]raud related to absentee ballots is rare," it argues that "[t]he absentee ballot witness requirement helps deter fraud by adding a verification that the person who filled out the ballot sealed it in the envelope and signed it." As another important interest at stake, the State cites "the Division's interest in not changing an elections requirement at this very late date," as last-minute changes "could create confusion and distrust in the Division and the election result."
These interests are legitimate and compelling at least "in the abstract";
d. The fit between the State's interests and the witness requirement is not close enough to justify the substantial burden on the right to vote.
The final step in our analysis is judging "the fit between the challenged legislation and the [S]tate's interests in order to determine `the extent to which those interests make it necessary to burden the plaintiff's rights.'"
In support of its fraud deterrence rationale, the State cites the recent indictment of a former state legislator and two associates "on multiple counts of voter fraud after the Division detected irregularities in absentee ballot applications" in the 2018 general election. A witness requirement, however, had no apparent part in the detection of that alleged fraud, as ballot applications, which may be completed online, are not required to be witnessed.
As for the State's interest in promoting voter confidence, the superior court agreed with the State's argument that the witness requirement could "lend an air of formality to the absentee voting process"; the court observed, however, that there are "other aspects of Alaska's election laws [that] ensure the integrity of absentee voting." The court took note of "the fact that voters are required to provide identification and sign absentee ballots under penalty of perjury, which carries a criminal penalty of up to ten years of incarceration."
The State points out that other states were implementing or enforcing witness requirements in the face of last year's challenges, noting that at the time this petition was before us there were "only two adversarial cases in which trial courts [had] enjoined a state's witness requirement due to the pandemic" and that higher court rulings had cast doubt on those decisions. But in two cases in which a witness requirement was suspended pursuant to a consent decree, the reviewing courts independently reviewed the merits and concluded that witness requirements were likely unconstitutional in the midst of the COVID-19 pandemic.
In sum, the witness requirement imposed a substantial constitutional burden in the
We AFFIRM the superior court's order granting the preliminary injunction.