Posted: October 28, 2010

Alaska Supreme Court Issues TRO

The Alaska Supreme Court has temporarily stayed a temporary restraining order (TRO) that prohibited Alaska’s Division of Elections from displaying, distributing, or communicating write-in candidate lists at polling locations. Parties to the suit were required to submit briefs to the Supreme Court by 3:00 PM (7:00 PM EST) Thursday.

In mid-October, the Alaska Division of Elections began distributing write-in candidate lists that contained write-in candidate names, party affiliation, and registration status. Although the Division sought approval from the federal Department of Justice before distributing the lists, it never actually received that approval. Subsequent to that distribution, the Alaska Democratic Party [ADP] requested that the Division withdraw those lists from polling stations because 6 Alaska Administrative Code 25.070(b) prohibits write-in candidate information from being distributed within 200 feet of any polling station.

After the Division refused to withdraw those lists, the ADP filed this lawsuit. The Alaska Republican Party and Lisa Murkowski for US Senate Committee intervened.

In granting the Temporary Restraining Order, the judge required the ADP to “make a clear showing of probable success on the merits” instead of the much lower standard which only requires a showing of “serious and substantial questions going to the merits of the case.” According to the court, the heightened standard applies when the threatened harm is less than irreparable or if the opposing party cannot be adequately protected.

The court indicates that the Division has a serious interest in maintaining a “consistent and uniform election and in maintaining confidence in the validity of every vote cast.” Because this interest could not be adequately protected, the court applied the higher standard in the TRO decision. Despite the heightened standard applied by the court, the TRO was granted because the court agreed with ADP’s plain reading of 6 AAC 25.07(b).

Interestingly, the decision recognized that this TRO could impact the thousands of votes already cast under the Division’s disputed write-in procedure.

Perhaps reflecting anxiety about that insight, the State Supreme Court decided to stay this decision pending further review. Although the Division may, for the time being, continue to distribute write-in lists, the lists may not contain party affiliation for write-in candidates. Additionally, every ballot cast by a voter who reviewed a write-in list must be segregated for future appeals.

Notwithstanding segregation, this seems to complicate matters. If the TRO had been allowed to stand then there would only be two categories of ballots that would be involved in a potential challenge: those ballots cast without aid of a distribution list and those ballots cast with aid of a distribution list. The State Supreme Court decision adds a third, hybrid category: ballots cast with the aid of a distribution list that only contains party affiliation.

How this all plays out remains to be seen, but if Murkowski wins the election, either party might seek to challenge write-in votes on the basis of a 6 AAC 25.070(b) violation. At this point it is unclear whether courts in Alaska would entertain this challenge or whether they would disqualify votes for such administrative code violations.