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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State of Alaska, Office of Lieutenant Governor, Division of Elections, and Director Gail Fenumiai, in an official capacity v. Alyse S. Galvin (7/9/2021) sp-7540
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, OFFICE OF )
LIEUTENANT GOVERNOR, ) Supreme Court No. S-17887
DIVISION OF ELECTIONS, and )
DIRECTOR GAIL FENUMIAI, in an
) Superior Court No. 3AN-20-07991CI
official capacity, )
) O P I N I O N
Petitioners and Cross- )
Respondents,
) No. 7540 - July 9, 2021
)
v. )
)
ALYSE S. GALVIN, )
)
Respondent and Cross- )
Petitioner. )
)
Petition for Review from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage, Jennifer
Henderson, Judge.
Appearances: Laura F. Fox and Margaret Paton-Walsh,
Assistant Attorneys General, Anchorage, and Clyde "Ed"
Sniffen, Jr., Acting Attorney General, Juneau, for Petitioners
and Cross-Respondents. Kevin R. Feldis and Sarah L.
Schirack, Perkins Coie LLP, Anchorage, for Respondent and
Cross-Petitioner.
----------------------- Page 2-----------------------
Before: Bolger, Chief Justice, Winfree, Maassen, and
* [Borghesan,
Carney, Justices, and Eastaugh, Senior Justice.
Justice, not participating.]
BOLGER, Chief Justice.
MAASSEN, Justice, with whom CARNEY, Justice, joins, dissenting.
I. INTRODUCTION
Alyse Galvin was an Alaska Democratic Party nominee for office but
registered as a nonpartisan voter. She sued to stop the Division of Elections from
sending out already-printed ballots for the 2020 general election, arguing that the
Division's ballot design, by omitting her nonpartisan voter registration, violated both a
statutory directive to designate a candidate's party affiliation on the ballot and Galvin's
right to free political association under the Alaska Constitution. After the superior court
issued a temporary restraining order, the Division petitioned for review. But the
following day, the superior court denied Galvin's request for a preliminary injunction;
we granted her emergency cross-petition for review and affirmed the superior court's
decision in a summary order with this explanation to follow.
We conclude that the Division's evidence supported the superior court's
factual finding that granting Galvin's requested injunction would have jeopardized the
prospects of a successful and timely election. The superior court did not abuse its
discretion by denying Galvin's requested preliminary injunction because granting the
injunction could have imperiled the public interest in an orderly and timely election.
* Sitting by assignment made under article IV, section 11 of the Alaska
Constitution and Alaska Administrative Rule 23(a).
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II. FACTS AND PROCEDURAL HISTORY
A. The Division Omitted The Voter Registration Information Of
Candidates Such As Galvin On The 2020 General Election Ballot.
1
At the time of the 2020 general election,
Alaska candidates for elected
office could appear on ballots in one of two ways: either nomination by a political party
2 or nomination by petition.3 Prior to 2018, under
after winning a party primary election
Alaska's long-standing "party affiliation rule," a candidate was statutorily required to
register to vote as a member of a political party before running in that party's primary
election.4 Also prior to 2018 the Division of Elections consistently designed general
election ballots to list candidates who appeared through party nomination alongside their
party and candidates who appeared through petition as non-affiliated. For instance, the
2016 general election ballot listed United States Representative candidates Jim C.
McDermott as "Libertarian" and Bernie Souphanavong as "Non Affiliated."
1 In November 2020, Alaska voters passed Ballot Measure No. 2, amending
or repealing many of the election statutes referred to throughout this opinion, with those
changes made effective on February 28, 2021. 2020 Alaska Laws Initiative Meas. 2
(Bal. Meas. 2), 31st Leg., 2d Sess. (2020). Because Galvin's legal challenge was
brought and decided in September 2020, this opinion addresses the statutes in force at
that time, rather than at the time of this opinion's publication.
2 Former AS 15.25.100 (2020) ("The director shall place the name of the
candidate receiving the highest number of votes for an office by a political party on the
general election ballot.").
3 Former AS 15.25.190 (2020) ("The director shall place the names and the
political group affiliation of persons who have been properly nominated by petition on
the general election ballot.").
4 Former AS 15.25.030(a)(16) (2020). The statutory provision was enacted
in 1980. See ch. 100, § 126, SLA 1980.
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In 2018 we held in State v. Alaska Democratic Party that the party
affiliation rule violated the Alaska Democratic Party's right to free political association
5 The Party had changed its bylaws to allow candidates
under the Alaskan Constitution.
not registered as Democratic Party voters to compete as primary candidates, which the
rule barred them from doing.6 When we held the party affiliation rule unconstitutional
as applied, non-party-member candidates were allowed to run for the first time since the
rule was enacted in 1980.
In the wake of this decision, the Division designed the November 2018
general election ballot to list candidates' names alongside both their status as party
nominees and, for the first time, their voter registration, identified as their "registered
affiliation." Galvin, who won the nomination of the Alaska Democratic Party while
registered as a voter of undeclared party affiliation, was listed as "Galvin, Alyse S. (U)
[-] Alaska Democratic Party Nominee," while her opponent was listed as "Young, Don
(R) [-] Alaska Republican Party Nominee." The Division used much the same design
in its August 2018 primary ballot and August 2020 primary ballot, listing candidates
alongside their voter registration status and the name of the party whose nomination they
sought. Galvin, then registered as a nonpartisan voter, was listed on the August 2020
primary ballot as "Galvin, Alyse S. (N) [-] Democratic."
Butfor theNovember 2020generalelection ballot design, theDivision took
a different approach. It omitted voter registration information from the ballot, listing
party nominees alongside only the name of the party nominating them. Galvin had again
won the Alaska Democratic Party nomination for U.S. Representative. The Division's
5 426 P.3d 901, 904 (Alaska 2018).
6 See id. at 906.
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2020 general election ballot design listed her simply as "Galvin, Alyse S. [-] Democratic
Nominee."
The Division finalized this ballot design on June 8, 2020, but gave no
public notice of its decision. Over the next few months, the Division programmed the
voting equipment based on this new ballot design. On August 31 the primary election
results were certified, and on September 5 the Division sent the ballot to the printer.
The clock was counting down to the election to be held November 3, 2020.
The Division needed to send out over 11,000 ballots by Friday, September 18, to comply
with a federal statutory deadline for sending ballots to overseas voters and military
personnel, as well as a state statutory deadline for sending ballots to certain remote
7 Ballots and voting equipment needed to be in place for early in-person voting
voters.
8 equipment needed to be sent to
to start on October 19, 15 days before election day;
remote polling places two to three weeks in advance.
The Division first posted the sample ballot on its website on Thursday,
September 10, and Galvin first learned of the design change on Monday, September 14.
She challenged the new design in court the next day, by which time the 800,000 ballots
needed for the general election had already been printed.
7 Both statutory deadlines are for 45 days before the election; this 45-day
mark technically fell on Saturday, September 19. 52 U.S.C. § 20302(a)(8)(A) (2018);
AS 15.20.081(k). Because the U.S. Postal Service does not process bulk mail on
Saturdays, to meet these deadlines the Division needed to mail the advance ballots on
Friday, September 18. The federal statute authorizes a chief state election official to
request a deadline waiver for undue hardship, including "a delay in generating ballots
due to a legal contest" which renders the state unable to meet the deadline. 52 U.S.C.
§ 20302(g).
8 See AS 15.20.064(a) (qualified voters may participate in early voting).
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B. Candidate Galvin Sought And Was Denied A Preliminary Injunction
To Stop The Division From Printing And Mailing Out Ballots
Omitting Her Registration As A Nonpartisan Voter.
Galvin filed her complaint on September 15 against Gail Fenumiai in her
official capacity as Director of the Division of Elections. She sought declaratory as well
as injunctive relief. She asked the superior court to declare the current ballot design
statutorily and constitutionally impermissible, enjoin the Division from mailing the
challenged ballots, and compel the Division to design and print new ballots displaying
candidates' voter affiliations. Galvin immediately moved for a temporary restraining
order and preliminary injunction to prevent the Division from printing its current ballot
design.
By the end of that day, the Division's printer had already finished the
800,000 ballots, available in 47 different versions, needed for the general election. But
Galvin argued that if illegal ballots were mailed out, she would suffer irreparable harm:
the election could not be redone, and the injury to her campaign could not be remedied
through monetary damages.
Galvin asserted two legal claims. First, she argued that the Division's new
ballot design violated the then-effective statutory provision that a candidate's "party
9 Second, Galvin
affiliation, if any, shall be designated after the name of the candidate."
claimed that the Division, by omitting her voter registration affiliation from the ballot,
had violated her right of political association under article I, section 5 of the Alaska
Constitution. She described her nonpartisan voter affiliation as an important component
of "her identity, her campaign platform, and her relationship with her supporters."
9 Former AS 15.15.030(5) (2020).
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Galvin also argued the ballot design "burden[ed] the associational rights of the non-
partisan and independent Alaska voters who support Galvin."
In recognition of the impending election deadlines, the superior court held
a hearing the next day to consider a temporary restraining order. On Thursday,
September 17, the court granted the order, preserving the status quo by preventing the
Division from mailing out ballots until a hearing could be held the following day on
Galvin's motion for a preliminary injunction. That afternoon the State filed an
emergency petition for our review of the temporary restraining order; Galvin opposed
the emergency petition for review. We declined to act until after the next day's superior
court hearing, but made time available to hear oral argument on any subsequently filed
petition for review.
The State submitted an affidavit by the Division Director as an exhibit to
the superior court. In her affidavit, the Director pointed out that 11,000 ballots needed
to be sent out by the next day to meet statutory deadlines and that in-person voting was
to begin on October 19, only four weeks away. "[B]ased on years of experience running
elections," she warned that not enough time remained before the election "to reprint the
over 800,000 ballots that have already been printed and re-test the voting equipment."
The Director explained the many logistical steps that would be required to
redesign the ballots: rolling back the voting equipment programming to implement the
changes to all 47 versions of the ballots; sending the new ballot designs to the printer and
approving the resulting proofs; reprinting the 800,000 ballots, which had initially taken
ten days to print but might take longer to reprint because the printer did not have enough
appropriate paper in stock or staff on hand; reprogramming ballots on touch screen units,
which would first need to be retrieved from the regional offices; and retesting the voting
equipment to ensure it would accept the new ballots. The Director estimated that testing
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the equipment alone takes at least nine days. She concluded, "I do not see how it would
be possible to properly carry out the election if we are required to reprint the ballots."
On Friday, September 18, the superior court held a hearing on Galvin's
request for a preliminary injunction: specifically, Galvin sought an order that the
Division not (1) print any further ballots without her voter registration information or
(2) send out any ballots missing that information. The Director testified about the
printer's efforts to locate a source of appropriate paper, which might not arrive in Alaska
until September 29. Galvin cross-examined the Director but presented no additional
evidence of her own. Mindful of the Division's impending deadline to send out ballots
by the end of the day, the superior court announced its decision around noon,
immediately after the parties finished argument.
Thesuperiorcourtdenied theinjunction. Based on theDivision's evidence,
it determined that granting the injunction would harm "the prospects of any sort of
organized or successful election moving forward" and that the Division could not be
adequately protected from this harm. Therefore, to support granting the injunction
Galvin needed to show a clear probability of success on the merits, which the court
concluded she had failed to do for either of her claims.
The court was not convinced that Galvin had a viable claim based on
freedom of association, as it questioned her constitutional right to express her voter
affiliation on the ballot itself rather than through her campaign materials. The court
acknowledged the strength of Galvin's statutory argument that the ballots must display
a candidate's "party affiliation," meaning voter registration, in addition to "party
10 But, pointing to the Division's argument that historically "party
designation."
10 See former AS 15.15.030(5) (2020).
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affiliation" and "party designation" had meant the same thing in this context - which
party, if any, brought the candidate to the ballot - the court was ultimately not
convinced Galvin had demonstrated probable success on the merits of even her statutory
claim.
Galvin immediately petitioned for our review of the superior court's denial
of the preliminary injunction. Specifically, she requested review of the superior court's
rulings that the Division could not be adequately protected against harm if the injunction
were granted and that Galvin had not demonstrated probable success on the merits of
either her statutory or constitutional claims.
ToallowtheDivision to meetitsstatutorydeadline,weheardoral argument
and announced our decision within two hours of receiving Galvin's petition. We granted
the petition for review and affirmed the superior court's decision on the record. In early
October, we issued a written order to this effect, noting the dissent of two justices and
stating that this full explanatory opinion would follow.
III. STANDARD OF REVIEW
We have often stated that we review an order granting or denying
11 but three different standards of
preliminary injunctive relief for abuse of discretion,
review are relevant to this analysis. We review a court's conclusions of law de novo,12
reversing if we conclude the court misinterpreted, misapplied, or otherwise acted
contrary to the law. We deferentially review a court's factual findings for clear error,
reversing if, after reviewing the entire record, we are left with a firm and definite
11 See, e.g. , Lee v. Konrad , 337 P.3d 510, 517-18 (Alaska 2014); State, Div.
of Elections v. Metcalfe , 110 P.3d 976, 978 (Alaska 2005).
12 Alsworth v. Seybert , 323 P.3d 47, 54 (Alaska 2014).
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13
conviction that a mistake was made. And we deferentially review a court's
discretionary rulings for abuse of discretion, reversing if we conclude the court acted
unreasonably.14
Each legally required element of a court's decision on a preliminary
15 A court's
injunction is thus subject to a particular standard or standards of review.
legal conclusions about irreparable harm, adequate protection, and the probability of
success on the merits of a claimmay represent pure questions of law based on undisputed
facts or may involve mixed questions of fact and law. For example, the court makes a
legal conclusion when deciding whether a party faces irreparable harm unless an
injunction is granted. But if the facts underlying that conclusion are in dispute, the court
must first make factual findings to establish the nature and extent of the harm.16
To obtain a preliminary injunction, the party seeking relief must establish
certain predicate elements. Unless the party establishes these required elements, the
superior court has no discretion to grant the requested relief. But once a party establishes
13 Stephan P. v. Cecilia A. , 464 P.3d 266, 271 (Alaska 2020).
14 See Ranes & Shine, LLC v. MacDonald Miller Alaska, Inc., 355 P.3d 503,
508 (Alaska 2015) ("We will find an abuse of discretion when the decision on review is
manifestly unreasonable.").
15 See City of Kenai v. Friends of Recreation Ctr., Inc., 129 P.3d 452, 455,
455 n.8 (Alaska 2006) ("[Q]uestions underlying the preliminary injunction are reviewed
under the appropriate standard of review. Thus, for example . . . issues of pure law are
subject to independent review." (quoting People ex rel. Gallo v. Acuna , 929 P.2d 596,
626 (Cal. 1997))).
16 The expedited and truncated nature of preliminary hearings often does not
lend itself to a full trial-like exposition of evidence. However, we have not had the
occasion to determine evidentiary standards for factual and legal determinations made
at this stage. See Alsworth , 323 P.3d at 52 n.9 (declining to determine standard).
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the required elements for preliminary injunctive relief, the court exercises its
discretionary authority when it ultimately grants some or all requested relief or declines
17
to grant any requested relief; thus, we review that decision for abuse of discretion.
IV. DISCUSSION
A. Because The Division Would Not Be Adequately Protected Were
Galvin's Requested Injunction Granted, She Needed To Meet The
Probable Success On The Merits Standard.
A party may obtain preliminary injunctive relief under one of two
standards: the balance of hardships standard or the probable-success-on-the-merits
standard.18 The balance of hardships standard applies when the plaintiff "faces the
danger of 'irreparable harm' " if the relief is denied and the opposing party "is
adequately protected" from harm if the relief is granted.19 Irreparable harm is an injury
which should not be inflicted and which, "because it is so large or so small, or is of such
constant and frequent occurrence, or because no certain pecuniary standard exists for the
17 See id. at 54 ("[W]e 'review the issuance of preliminary injunctions for
abuse of discretion . . . .' " (quoting City of Kenai , 129 P.3d at 455)); 42 A M. J UR. 2 D
Injunctions §14 (2020) (stating that "a plaintiff is generally not entitled to [an injunction]
as a matter of right" and even if predicate elements for injunctive relief are demonstrated,
"a court must still exercise its discretion to decide whether to grant an injunction"). But
cf. A. J. Indus., Inc. v. Alaska Pub. Serv. Comm'n , 470 P.2d 537, 541-42 (Alaska 1970),
modified in other respects , 483 P.2d 198 (Alaska 1971) (without mentioning standard
of review, holding petitioner's showing "was sufficient to have required the issuance of
a preliminary injunction" under the balance of hardships test).
18 Alsworth , 323 P.3d at 54; State, Div. of Elections v. Metcalfe, 110 P.3d 976,
978 (Alaska 2005); A. J. Indus. , 470 P.2d at 540.
19 Metcalfe, 110 P.3d at 978 (quoting State v. Kluti Kaah Native Vill. of
Copper Ctr., 831 P.2d 1270, 1273 (Alaska 1992)).
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20
measurement of damages, cannot receive reasonable redress in a court of law."
"Adequate protection" generally means that the party opposing the injunction can be
indemnified by a bond when financial harm is at stake; can be otherwise protected by
some action; or, at a minimum, is facing only "relatively slight" harm compared to the
21
potential harm facing the party seeking relief.
Under the balance of hardships standard, the plaintiff need only "raise
'serious' and substantial questions going to the merits of the case; that is, the issues
raised cannot be 'frivolous or obviously without merit.' "22 If the plaintiff does so, the
court then "balanc[es] the harm the plaintiff will suffer without the injunction against the
harm the injunction will impose on the defendant" to determine whether or not to grant
the injunction.23
In contrast, if the party requesting preliminary injunctive relief does not
face irreparable harm or if the opposing party cannot be adequately protected against
injury threatened by the requested relief, then the standard of probable success on the
24 Under this standard the party seeking relief must make " 'a clear
merits applies.
20 Kluti Kaah , 831 P.2d at 1273 n.5 (quoting Irreparable Injury , B LACK 'S
LAW DICTIONARY (6th ed.1990)).
21 See id at 1273; State v. United Cook Inlet Drift Ass'n, 815 P.2d 378, 378-79
(Alaska 1991). This level of harm has also been described as "inconsiderable." A. J.
Indus., 470 P.2d at 540 (citing Ohio Oil Co. v. Conway, 279 U.S. 813, 815 (1929)).
22 Alaska Pub. Utils. Comm'n v. Greater Anchorage Area Borough , 534 P.2d
549, 554 (Alaska 1975) (quoting A. J. Indus. , 470 P.2d at 541).
23 Alsworth , 323 P.3d at 54.
24 Id. at 54-55 (quoting United Cook Inlet Drift Ass'n, 815 P.2d at 378-79).
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showing of probable success' on the merits" of the dispute before a court may grant the
25
preliminary injunction.
To determine which standard applies here, we ask two questions: (1)
whether Galvin faced irreparable harm unless the injunction were granted, and
(2) whether the Division could be adequately protected from harm if the injunction were
granted. The superior court tentatively stated Galvin was potentially faced with
irreparable harm.26 If Galvin's statutory or constitutional arguments are correct, then she
indeed faced irreparable harm; the ballots printed by the Division would be legally
inadequate and misleading. The harm to her candidacy cannot be quantified with
certainty, and so is not susceptible to monetary compensation.
The superior courtfound that,based onevidencepresentedby the Division,
granting the requested relief would imperil the prospects of an orderly and successful
election. Thus, the court concluded the Division would not be adequately protected if
the injunction - preventing the Division from mailing out the ballots missing Galvin's
voter registration information, and thus effectively requiring theDivision to redesign and
reprint ballots containing Galvin's voter registration information - were granted.
The superior court based its conclusion on the affidavit and testimony of
Division Director Fenumiai. Galvin cross-examined the Director but presented no
contrary factual evidence.
The Director's affidavit and testimony explained the Division's immediate
need to mail out ballots to comply with statutory deadlines and the logistical barriers to
25 Id. at 54 n.14 (quoting A. J. Indus. , 470 P.2d at 540).
26 Neither Galvin nor theDivision challengethis finding by thesuperiorcourt.
Whether Galvin faced irreparable harm is nonetheless a required component of our
analysis of the court's denial of Galvin's requested injunction.
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reprinting the 800,000 ballots required for the general election in a timely manner. The
Director emphasized the Division's need to mail some 8,000 ballots to military and
overseas voters by the end of September 18 - the day of the preliminary injunction
hearing - to comply with federal law. She also noted the Division's need to mail out,
on that same day, several thousand other ballots to remote voters in Alaska to comply
with state law. The Director reported that the ballot printer had only around 390,000
sheets of appropriate paper in stock and anticipated delays in acquiring enough to reprint
all 800,000 ballots.
Galvin suggested that the Division could rely on a hardship exception to
justify late compliance with the federal deadline, that the remaining ballots could be
replaced expeditiously if the Division put effort into it, and that mere expense or burden
is insufficient to show cognizable harm. Indeed, the federal statute authorizes the
Director to request a waiver when the State is unable to meet the statutory deadline due
27 But the
to hardship, including "a delay in generating ballots due to a legal contest."
harm to the Division lay not just in the burden of reprinting the ballots themselves, or
even the risk of missing statutory deadlines, but in the danger that the Division might not
be able to successfully conduct a timely election. The harm to the Division's interests
was therefore also a harm to the interests of Alaskan voters and other political
candidates.
The Director's affidavit outlined the follow-on impacts of redesigning the
ballots at such a late stage. She described the extensive work the Division had already
performed in preparation for the November election, included programming voting
machines and testing voting equipment to avoid malfunctions during early voting and on
27 52 U.S.C. § 20302(g)(2)(B)(ii).
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election day. Much of it would need to be redone if the ballots were redesigned. The
Director said that, considering the required work and anticipated delays, she did not "see
how it would be possible to properly carry out the election if we are required to reprint
the ballots." Based on around 20 years of experience at the Division, including over 9
years as Director, she concluded that "there [was] not sufficient time" left before the
general election "to reprint the over 800,000 ballots that have already been printed and
re-test the voting equipment."
Based on the limited evidence presented in this expedited proceeding, the
court's factual finding that granting Galvin's requested injunction would jeopardize a
successful election was not clearly erroneous. Given this finding, the court was correct
to conclude that were the injunction granted, the Division's interests could not be
adequately protected. Thus, for the court to grant the requested injunction, Galvin
28
needed to meet the heightened standard of clear probable success on the merits.
B. Galvin Did Not Show A Clear Probability Of Success On Her
Constitutional Claim.
Article I, section 5 of the Alaska Constitution "guarantees the rights of
people, and political parties, to associate together to achieve their political goals."29
28 We emphasize that under this standard a court should still "avoid
[extensive] involvement in the merits of the issues between the parties," as a preliminary
injunction decision is usually "based on an incomplete . . . record." A. J. Indus. , 470
P.2d at 540. Moreover, an early ruling on the merits "would ultimately result in forcing
the court to rule on the merits of the case twice," potentially leading to inconsistent
results. Id. The goal of a preliminary injunction is merely to ensure a fair playing field
for full litigation of the case's merits later. We therefore do not rule on the merits of
Galvin's claims.
29 State v. Alaska Democratic Party, 426 P.3d 901, 906 (Alaska 2018)
(continued...)
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Galvin argues that the Division, by designing the ballot to omit her nonpartisan voter
affiliation while designating her as Democratic Nominee, violated her rights to free
associationunder theAlaskaConstitution. Specifically,sheassertedin thesuperior court
that the Division's ballot design impermissibly burdened her "rights to associate with"
as well as "the interrelated right not to associate with[ ] certain political parties as a voter
and an individual."
Galvin contended that she has a constitutional right to political association
with voters who might not normally vote for a Democratic Party candidate, but who
might vote for her because of her status as a non-Party member. But Galvin has not
identified how the Division prevented her from associating with those voters. That the
Division did not advertise Galvin's nonpartisan voter affiliation on the ballot itself does
notprevent Galvin frompublicizing or expressing that affiliation elsewhere. Thegeneral
election ballot is far fromGalvin's only means of expressing her identity as a nonpartisan
voter, relating to fellow nonpartisan voters, or appealing for nonpartisan voter support
in the election. It is thus not clear that the Division has at all burdened Galvin's
30
constitutional right of political association, and any such burden would be minimal.
We have considered election laws imposing minimal burdens on the right
to free association to be constitutional if they are "reasonable, non-discriminatory, and
29 (...continued)
(emphasis in original); see Alaska Const. art. I, § 5.
30 See Rubin v. City of Santa Monica , 308 F.3d 1008, 1011, 1016 (9th Cir.
2002) (holding city's refusal to allow candidate "to designate his occupation as 'peace
activist' on the city election ballot" only minimally burdened his right to free speech, as
candidate had ample alternative channels "for communicating his peace activities to the
public").
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31
advance[ ] 'important regulatory interests.' " The Division's ballot design decision
applies uniformly across candidates; the Division has not omitted Galvin's voter
registration information while listing that information for others on the ballot. Whether
omitting voter registration information from ballots advances "important regulatory
32 But Galvin has thus far failed to show a probability
interests" may be subject to debate.
of success, let alone a clear one, on her claim that the Division violated her positive right
of political association under the Alaska Constitution.
Galvin also asserts the Division's ballot design violated her right to be free
from compelled political association. She cites federal case law for the maxim that the
right to free association entails a right against government-mandated association.33 And
she points to our conclusion in State v. Green Party of Alaska that requiring "[v]oters . . .
to fully affiliate themselves with a single political party" in order to have any
31 Alaska Democratic Party , 426 P.3d at 909 (quoting O'Callaghan v. State ,
914 P.2d 1250, 1254 (Alaska 1996)).
32 TheDivisionasserts variousinterestsincluding its "desireto createasimple
and manageable general election ballot that fits on the page and includes no more
information than necessary." See Sonneman v. State, 969 P.2d 632, 640 (Alaska 1998)
(holding a minimal burden on the right to vote justified by the State's interests in
avoiding voter confusion and minimizing costs); see also Rubin, 308 F.3d at 1017-19
(concluding minimal burden of omitting candidate's occupation on ballot justified by
important state interest in avoiding voter confusion, because occupation of "peace
activist" was misleading).
33 See, e.g., Knox v. Serv. Emps. Int'l Union, Local 1000, 567 U.S. 298, 310
(2012) ("[M]andatory associations are permissible only when they serve a 'compelling
state interes[t] . . . that cannot be achieved through means significantly less restrictive of
associational freedoms.' " (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984))).
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"opportunity to participate in that political party's primary . . . place[d] a substantial
34
restriction on the political party's associational rights."
But no such right against compelled association appears to be at stake here.
Galvin freely chose to seek the Alaska Democratic Party nomination for U.S.
Representative by competing in that party's primary. If the Division had listed Galvin
as a member of the Alaska Democratic Party or identified her as a "Democrat," Galvin's
claim might well have some merit; those are forms of party association she has avoided.
But the Division neither required her to join that party nor listed her on the ballot as
having done so. By listing Galvin on the ballot as "Democratic Nominee," the Division
accurately reported an association that Galvin freely sought out and accepted.
Galvin additionally argues that the Division's ballot design burdened the
associational rights of nonpartisan or independent Alaska voters who support her. But
Galvin does not explain how the ballot design, by omitting her nonpartisan voter
registration status, has either prevented any voters from associating with her or
compelled them to associate with the Alaska Democratic Party. Galvin cites our
previous reasoning, in Green Party of Alaska, that requiring voters to either register and
thus "fully affiliate themselves with a single political party or forgo completely the
opportunity to participate in that political party's primary" restricted certain political
parties' associational rights.35 But registering as a party member requires full affiliation
with the party in a way that merely voting for a party nominee - identified as such on
the ballot - does not.
34 118 P.3d 1054, 1065 (Alaska 2005).
35 Id .
-18- 7540
----------------------- Page 19-----------------------
Therefore, at the preliminary injunction stage, Galvin does not show a clear
probability of success on the merits of any of her constitutional arguments.
C. Galvin Made A Strong Showing On Her Statutory Claim .
The language of former AS 15.15.030(5) provides: "The names of the
candidates and their party designations shall be placed in separate sections on the state
general election ballot under the office designation to which they were nominated. The
party affiliation, if any , shall be designated after the name of the candidate." (Emphases
added.)
The Division claims that "party affiliation" and "party designation" are
merely two different ways of referring to the same thing, which the Division interprets
as "the way in which a candidate reached the general election ballot." Galvin asserts that
"party affiliation"meansacandidate's voter registrationstatus, while"partydesignation"
refers to a candidate's nominating party. She thus argues that the statute requires listing
36 The
her nonpartisan voter registration alongside her nominating party on the ballot.
superior court, assessing the parties' competing interpretations as both "viable,"
concludedthat even though Galvin had demonstrated "serious and substantial questions"
going to the merits of her statutory claim, she had not demonstrated "probable success
on the merits." Galvin challenges this conclusion.
When interpreting a statute, "our goal is to give effect to the intent of the
law-making body 'with due regard for the meaning that the language in the provision
conveys to others.' "37 We interpret a statute "according to reason, practicality, and
36 See former AS 15.15.030(5) (2020).
37 Marlow v. Municipality of Anchorage, 889 P.2d 599, 602 (Alaska 1995)
(quoting Foreman v. Anchorage Equal Rights Comm'n , 779 P.2d 1199, 1201 (Alaska
(continued...)
-19- 7540
----------------------- Page 20-----------------------
common sense, considering the meaning of the statute's language, its legislative history,
and its purpose."38
We apply a "sliding scale approach," under which "the plainer the
39
language of the statute, the more convincing contrary legislative history must be."
Galvin argues that since AS 15.15.030(5) refers to both a "party
designation" and a "party affiliation," the terms must carry two distinct meanings. It is
unclear why the legislature would use different terms in the same statutory provision to
40 As a primary goal of statutory language is clarity, the use of
mean the same thing.
"elegant variance" - varying the use of synonyms or descriptive terms to avoid boring
repetition - is ill-suited to statutory drafting.41
Further, Galvin points to several election statutes which seem to equate
"party affiliation" with voter registration.42 For example, AS 15.07.050(b) refers to a
37 (...continued)
1989)).
38 Attorneys Liab. Prot. Soc'y, Inc. v. Ingaldson Fitzgerald, P.C., 370 P.3d
1101, 1105 (Alaska 2016) (quoting Municipality of Anchorage v. Stenseth, 361 P.3d 898,
904 (Alaska 2015)).
39 Smith v. Ingersoll-Rand Co., 14 P.3d 990, 992 (Alaska 2000) (quoting
Marlow, 889 P.2d at 602).
40 See Alaska Spine Ctr., LLC v. Mat-Su Valley Med. Ctr., LLC, 440 P.3d 176,
182 (Alaska 2019) ("Principles of statutory construction mandate that we assume the
legislature meant to differentiate between two concepts when it used two different
terms.").
41 See BRYAN A. GARNER, GARNER 'S MODERN AMERICAN USAGE 509 (3d ed.
2009) (while discussing "[i]nelegant [v]ariation," noting "maxim in interpreting legal
language that if different words are used, different meanings must have been intended").
42 AS 15.07.070(k)(1)(C) (requiring director to notify voter registration
(continued...)
-20- 7540
----------------------- Page 21-----------------------
"voter's choice of party affiliation on the voter registration application form." And we
ourselves have used "party affiliation" torefer to voter registration selections on multiple
43
occasions. For instance, in Alaska Democratic Party we repeatedly labeled as "the
party affiliation rule" the statutory provision that a candidate must be "registered to vote
44
as a member of the political party whose nomination is being sought."
The Division's primary rebuttal is that former AS 15.15.030(5) could not
possibly require a ballot to display both nominating party and voter registration, because
the legislators who adopted the statutory language could not have imagined that those
two things could be different. The language in former AS 15.15.030(5) providing that
"party affiliation, if any, may be designated after the name of the candidate" was adopted
42 (...continued)
applicant of how to "adopt a political party affiliation"); AS 15.07.075 (designating as
"undeclared" voters who "fail[ ] to declare an affiliation with a political group or political
party on a voter registration form"); former AS 15.25.010 (2020) (providing that
"voter[s] registered as affiliated with a political party" may participate in that party's
primary); former AS 15.25.060(b) (2020) ("For the purpose of determining which
primary election ballot a voter may use, a voter's party affiliation is considered to be the
affiliation registered with the director as of the 30th day before the primary election.").
43 O'Callaghan v. State, Dir. of Elections, 6 P.3d 728, 731 (Alaska 2000)
(observing that "party affiliation has traditionally been a matter of public record" with
a reference to the required compiled list of registered voters by party registration); cf.
O'Callaghan v. State, 914 P.2d 1250, 1255 (Alaska 1996) (during the operation of the
party affiliation rule, using party affiliation to refer to both voter registration and the
party name under which the voter seeks nomination); O'Callaghan v. Coghill, 888 P.2d
1302, 1302 (Alaska 1995), supplemented sub nom. O'Callaghan v. State, 914 P.2d 1250
("All [blanket] primary candidates are listed on a single ballot without regard to party
affiliation. All eligible voters may participate without regard to party affiliation.").
44 State v. Alaska Democratic Party, 426 P.3d 901, 905 (Alaska 2018)
(quoting former AS 15.25.030(a)(16) (2020).
-21- 7540
----------------------- Page 22-----------------------
45
in 1962. This language thus originated decades before our 2018 decision invalidating
the "party affiliation rule" enabled candidates to seek a political party's nomination
46 But the party affiliation rule,
without registering to vote as a member of that party.
which made it legally impossible for a candidate's voter nominating party and voter
registration to differ from each other, was itself not enacted until 1980.47
The Division similarly points to decades of apparently unchallenged state
practicepreceding2018,duringwhichballotslistedcandidatesnominated by parties next
to the name of that party, as evidence that "party designation" and "party affiliation" are
synonymous within the meaning of the statute. But because the Division's evidence of
this practice dates from when the "party affiliation" rule was in effect and forced the
party of nomination to match the party of voter registration, it is not particularly relevant.
The Division also argues that even if "party affiliation" means the party
selected by a voter during the registration process, Galvin's choice to register as a
nonpartisan voter indicates that she has no "party affiliation." Alaska
Statute 15.07.075(1) functionally defines "nonpartisan" in the context of voter
registration as "without a preference for a political party." Under this theory, former
45 Ch. 125, §§ 5-7, SLA 1962.
46 See Alaska Democratic Party , 426 P.3d at 904-05 ("[B]ased on the unique
facts of this case, . . . we affirmthe superior court's decision to enjoin the party affiliation
rule as unconstitutional.").
47 Ch. 100, § 126, SLA 1980. The Division points out that the law in effect
before the party affiliation rule was enacted did require a candidate's declaration of party
candidacy to "state in substance . . . that the candidate if nominated and elected will
support the principles of the party he seeks to represent." Ch. 83, § 5.03, SLA 1960. But
unlike the party affiliation rule, this requirement did not legally foreclose the possibility
of a party nominee not registered as a party member. See former AS 15.25.030(a)(16)
(2020) (party affiliation rule).
-22- 7540
----------------------- Page 23-----------------------
AS 15.15.030(5)'s directive that "[t]he party affiliation, if any, shall be designated after
the name of the candidate" would not require the Division to place any "party affiliation"
designation after Galvin's name, since she has none. Galvin counters by pointing to the
Division's online voter registration process, which lets voters select "nonpartisan" or
"undeclared" as forms of "[p]olitical [a]ffiliation." Further, the Division's 2018 general
election ballot listed "Non-partisan" as a form of "registered affiliation." These design
decisions suggest the Division may have, until recently, interpreted "party affiliation" to
include "nonpartisan."
The Division additionally points to our statement in Alaska Democratic
Party that on "the general election ballot, the State could simply print the nominating
48 The Division argues we thus concluded
party's name next to the candidate's name."
that notwithstandingformer AS15.15.030(5),thegeneralelection ballot need not include
voter registration information. But the Division takes our statement out of context,
presumably assuming that by using the word "simply," we meant solely or merely, rather
than clearly or without ambiguity. Our statement was not a definitive holding on what
former AS 15.15.030(5) meant; rather, our statement merely recognized that pairing a
nominating party name with the party nominee's name would not constitute a "deceptive
bait-and-switch" as alleged by the State.49 Furthermore, our other responses to the
State's voter confusion concerns in Alaska Democratic Party imply an assumption that
48 426 P.3d at 913.
49 Id. Specifically, our statement responded to the State's expressed concern
about voter confusion: that unaffiliated candidates winning party nomination would
necessitate a general ballot that would "either present independent candidates without
indicating that a party nominated them, a deceptive bait-and-switch, or present
candidates as both independent and political party nominees." Id.
-23- 7540
----------------------- Page 24-----------------------
"the possible descriptors for [such] a candidate's party affiliation - such as
'nonpartisan,''undeclared,' 'non-affiliated,' or 'independent' -"would also befeatured
on the ballot. 50
The superior court did not purport to make a final decision interpreting
former AS 15.15.030(5), and we do not now decide whether we agree with Galvin's or
the Division's interpretation. We need not even decide whether Galvin demonstrated a
clear probability of success on the merits of her statutory claim or whether the superior
court erred in concluding otherwise. This is because, as detailed below, we ultimately
affirm the superior court's decision not to grant the requested preliminary injunction on
a separate ground: the hazard that granting the injunction would pose to the public
interest in a timely, successful election.
D. RegardlessOf TheMeritsOf Galvin'sClaims, TheSuperiorCourt Did
Not AbuseIts DiscretionByDenying TheInjunctionBecauseGranting
It Would Have Imperiled The Public Interest.
Federal courts are required to consider the public interest when deciding
whether to grant a preliminary injunction, considered "an extraordinary remedy never
51
awarded as of right." The United States Supreme Court directs courts, when
50 Id. For instance, we pointed out that "if the State remains convinced that
the ballot design itself will be confusing," it could include disclaimers on the ballot
"explaining that a candidate's party affiliation denotes only the candidate's voter
registration and nothing more." Id.
51 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008); see
Weinberger v. Romero-Barcelo, 456 U.S. 305, 312-13 (1982) ("[W]here an injunction
is asked which will adversely affect a public interest for whose impairment, even
temporarily, an injunction bond cannot compensate, the court may in the public interest
withhold relief until a final determination of the rights of the parties, though the
postponement may be burdensome to the plaintiff." (quoting Yakus v. United States, 321
(continued...)
-24- 7540
----------------------- Page 25-----------------------
"exercising their sound discretion" whether to grant an injunction, to "pay particular
52
regard for the public consequences."
This factor becomes especially important when a requested preliminary
53 As the Ninth Circuit
injunction threatens the public's interest in an orderly election.
has explained, if a statewide election is at stake, "[t]he public interest is significantly
affected," with hardship falling not only on the department running elections, but on all
citizens of the state.54 The Supreme Court has declared, in the context of unconstitutional
legislative apportionment schemes, that "where an impending election is imminent and
aState'selectionmachineryis already in progress, equitable considerations might justify
a court in withholding the granting of immediately effective relief."55 And when
considering this relief, "a court is entitled to and should consider the proximity of a
51 (...continued)
HARLES ALAN WRIGHT,
U.S. 414, 440 (1944) (footnote omitted))); see also 11A C
RTHUR R. MILLER &MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2948.4
A
(3d ed. 2020 Update) (noting "preliminary relief will be denied if the court finds that the
public interest would be injured were an injunction to be issued").
52 Winter, 555 U.S. at 24 (quoting Weinberger, 456 U.S. at 312).
53 See Benisek v. Lamone, 138 S. Ct. 1942, 1944-45 (2018) (per curiam) ("[A]
due regard for the public interest in orderly elections supported the District Court's
discretionary decision to deny a preliminary injunction . . . .").
54 Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 919 (9th Cir.
2003) ("[O]ur law recognizes that election cases are different from ordinary injunction
cases. Interference with impending elections is extraordinary . . . ." (citation omitted)).
55 Reynolds v. Sims, 377 U.S. 533, 585 (1964).
-25- 7540
----------------------- Page 26-----------------------
forthcoming election and the mechanics and complexities of state election laws." 56
Wehavenever expressly adopted the public interest factor into our analysis
of preliminary injunctive relief, but we have implicitly considered it under the balance
57
of hardships test when evaluating potential public harm from a preliminary injunction.
We clarify now that even if a party requesting preliminary injunctive relief satisfies the
requirements of the probable success on the merits standard, a court has the discretion
to deny the requested relief if granting it would imperil the public interest.
Here the superior court found that granting Galvin's requested preliminary
injunction would threaten "the prospects of an organized and successful election moving
forward." We review factual findings like this one only for clear error instead of using
our independent judgment to assess their accuracy,58 and we cannot consider new
59 The superior
evidence about what occurred six days after the court rulings in question.
court made this factual finding on a limited record in an extremely expedited proceeding.
Evidence presented at the preliminary hearing stage - namely, the Director's affidavit
56 Id.
57 See, e.g. , State v. Kluti Kaah Native Vill. of Copper Ctr. , 831 P.2d 1270,
1273-74 (Alaska 1992) (considering preliminary injunction's impact on various other
potentially interested groups); Alaska Pub. Utils. Comm'n v. Greater Anchorage Area
Borough, 534 P.2d 549, 555-56 (Alaska 1975) (considering whether large segment of
consuming public could be protected in public utility rate-setting context).
58 Stephan P. v. Cecilia A., 464 P.3d 266, 271 (Alaska 2020).
59 See Alaska R. App. P. 210(a) ("Material never presented to the trial court
may not be added to the record on appeal."). The dissent references actions taken by the
Division that we cannot consider, as they occurred six days after the superior court
denied Galvin's requested preliminary injunction, as well as six days after we declined
to reverse the superior court's denial. See Dissent at 34 n.18.
-26- 7540
----------------------- Page 27-----------------------
explaining the steep logistical barriers to and potentially dire consequences of
redesigning ballots so close to the election - supports this finding and renders it not
clearly erroneous.
Accepting the superior court's factual finding of a significant threat to a
timely, successful election compels the legal conclusion that granting preliminary
60 Therefore,
injunctive relief as requested by Galvin would imperil the public interest.
even if Galvin had demonstrated a clear probability of success on the merits, the superior
court did not abuse its discretion by declining to grant a preliminary injunction that
threatened to upend the orderly operation of the November 2020 election.61
V. CONCLUSION
WeGRANT Galvin's petition for reviewand AFFIRMthe superior court's
60 We do not recommend ignoring a ballot design error's impact on the
fairness of the election when weighing an injunction's effect on the public interest. But
the ballot design at issue here - which correctly identifies Galvin's name and
nominating party - poses a much lower risk of an unfair election than the hypothetical
ballot designs posed by the dissent - which leave off Galvin's name entirely or
inaccurately report her nominating party. See Dissent at 35-36.
61 Galvin argues that any electoral crisis resulting from an injunction would
be of the Division's own making; despite deciding on the ballot design in June, the
Division waited until mid-September, a week before the statutory mailing deadlines, to
inform the public of this decision. During oral argument, the Division conceded that in
hindsight, it might have been better to disclose its ballot design decision earlier. But the
Division also asserted it currently has no regulatory or statutory legal obligation to do
so.
The purpose of preliminary injunctive relief is preventative - to prevent
irreparable harm pending a full decision on the merits of a dispute - rather than
punitive. See Martin v. Coastal Vills. Region Fund, 156 P.3d 1121, 1126 (Alaska 2007)
("The purpose of a preliminary injunction is to maintain the status quo.").
-27- 7540
----------------------- Page 28-----------------------
denial of Galvin's requested preliminary injunction. We DENY the State's petition for
62
review of the temporary restraining order as moot.
62 See Peter A. v. State, Dep't of Health & Soc. Servs., Office of Children's
Servs., 146 P.3d 991, 994 (Alaska 2006) ("A claim is moot if it has lost its character as
a present, live controversy.").
-28- 7540
----------------------- Page 29-----------------------
MAASSEN, Justice, with whom CARNEY, Justice, joins, dissenting.
I dissent; I would hold that the superior court should have issued the
requested injunction. While I do not object to the court's decision to add a public
interest element to our probable-success-on-the-merits test, I do not agree that the public
interest in this case should block Galvin's meritorious claim to relief. I would hold that
Galvin would likely succeed on her statutory claim; that the public interest when
properly defined includes not just the interest in an orderly election but also the interest
in a proper ballot; and that the evidence does not support a finding that the public interest
in an orderly election was seriously threatened by Galvin's requested injunction.
A. Galvin Was Likely To Succeed On The Merits.
I agree with the court's conclusion that Galvin made a strong showing on
1
her statutory claim.
The court analyzes the claim thoughtfully and thoroughly but finds
2
it unnecessary to take what appears to be the inevitable last step in its analysis. I would
not hesitate to do so; I would conclude that Galvin demonstrated a likelihood of success
on the merits. Interpreting the two statutory terms "party affiliation" and "party
3
designation" in a reasonable, practical, and common-sense way, as we are obliged to do,
they must mean different things. The court cautiously suggests that "[i]t is unclear why
the legislature would use different terms in the same statutory provision to mean the
1 Opinion at 19.
2 Opinion at 24.
3 Attorneys Liab. Prot. Soc'y, Inc. v. Ingaldson Fitzgerald, P.C., 370 P.3d
1101, 1105 (Alaska 2016) (quoting Municipality of Anchorage v. Stenseth, 361 P.3d 898,
904 (Alaska 2015)).
-29- 7540
----------------------- Page 30-----------------------
4
same thing." Under our usual rules of statutory construction, the legislature would not
do so. 5
The Division itself recognized the distinction between registration and
affiliation in its ballot designs for the August 2018 primary election, the November 2018
general election, and the August 2020 primary election, in all of which it listed Galvin's
"registration status" ("U" or "N") as well as "the name of the party whose nomination
[she] sought" (the Alaska Democratic Party).6 These separate ballot identifiers were
especially significant last year given the high-profile nature of Galvin's campaign as a
candidate independent of either major party.
B. The Public Interest Includes An Interest In A Proper Ballot.
I recognize, as the court explains today, that a finding of probable success
on the merits - something we can decide as a matter of law - does not eliminate the
superior court's discretion to decide whether to grant the extraordinary remedy of
injunctive relief.7 The court concludes that the superior court, in the exercise of its
discretion, could have relied on the public interest to deny injunctive relief regardless of
how likely it was that Galvin would eventually prevail.8 In my view, this explanation
4 Opinion at 20.
5 See id. note 40 ("Principles of statutory construction mandate that we
assume the legislature meant to differentiate between two concepts when it used two
different terms." (quoting Alaska Spine Ctr., LLC v. Mat-Su Valley Med. Ctr., LLC, 440
P.3d 176, 182 (Alaska 2019))).
6 See Opinion at 4.
7 Opinion at 10-11.
8 Opinion at 27.
-30- 7540
----------------------- Page 31-----------------------
defines the public interest too narrowly and gives too much credence to the Division's
largely conclusory predictions of electoral chaos.
The court somewhat selectively defines the public interest at stake as "the
9 An orderly election is of course a laudable
public's interest in an orderly election."
goal, but good order is only one of the Division's responsibilities. The governing statute
requires the Division to prepare ballots in such a way as "to facilitate fairness, simplicity,
and clarity in the voting procedure, to reflect most accurately the intent of the voter, and
to expedite the administration of elections."10 And fairness is not just a statutory
command, it is a constitutional imperative: "The proposition that our democratic society
has a strong public interest in fair elections is tautological."11
We very recently elaborated on these concerns in the context of the State-
prepared ballot summary of a voter initiative: "Because a ballot is the paper upon which
voters give expression to their choices, and exercise their lawmaking right, '[a] biased,
12 A proper ballot
misleading, or inaccurate ballot undermines the voting process.' "
9 Opinion at 25.
10 AS 15.15.030 (emphasis added).
11 Alaska Miners Ass'n v. Holman, 397 P.3d 312, 317 n. 29 (Alaska 2017)
(quoting Municipality of Anchorage v. Citizensfor Representative Governance, 880 P.2d
1058, 1062 (Alaska 1994)) (explaining why groups challenging lieutenant governor's
certification of ballot initiative were constitutional litigants for purposes of statute
protecting them from adverse attorney's fee award); see also Sonneman v. State, 969
P.2d 632, 635 (Alaska 1998) (recognizing that statute allocating candidate positions on
ballots "governs the mechanics of the electoral process itself and directly impacts voting
rights under the federal and state constitutions").
12 State v. Vote Yes for Alaska's Fair Share, 478 P.3d 679, 687 (Alaska 2021)
(alteration in original) (quoting Faipeas v. Municipality of Anchorage , 860 P.2d 1214,
(continued...)
-31- 7540
----------------------- Page 32-----------------------
should be as much a part of a court's weighing of the public interest as is an orderly
13
process.
C. The Evidence Did Not Support A Finding That Injunctive Relief Was
Likely To Disrupt An Orderly Election.
Recognizing that the public interest factor cuts both ways requires us to
look more closely at the allegation that ultimately won this case for the State - that
injunctive relief would "throw the Division - and thus the November 2020 general
election - into chaos." That an injunction would create hardship is undeniable; the
Division had already taken most preparatory steps essential to a smoothly run election,
and many of those steps would need to be redone, this time within a compressed time
frame. But the evidence supported a finding that the Division could do it; more
importantly, the evidence did not support a finding that the Division could not do it.
The facts underlying the Division's chaos theory are mostly found in the
September 17 affidavit of Gail Fenumiai, the Division's well-qualified and highly
experienced Director, who explained both what had been done and what remained to be
done to ensure an orderly general election. On September 18, 45 days before election
day, the Division was required by federal law to send absentee ballots to "uniformed and
12 (...continued)
1222 (Alaska 1993)).
13 See Indep. Party v. Padilla , 184 F. Supp. 3d 791, 798 (E.D. Cal. 2016)
(denying Independent Party request to be recognized as political party where
"independent"wasalready usedas identifier forcandidatesunaffiliated with any existing
party, citing state's "important competing public interest in avoiding voter confusion on
the ballots").
-32- 7540
----------------------- Page 33-----------------------
14
overseas voters." That same day, the Division planned "to send ballots to a subset of
voters under Alaska law that are known as 'State Advance' voters." These two groups
combined required 11,631 early ballots. The next identified deadline was the "[w]eek
of September 28," when the Division began to send "absentee ballots to voters who ha[d]
requested them." At around the same time - still two to three weeks before the start of
early voting on October 19 - the Division expected to send "[b]allot materials . . . to
many of Alaska's remote polling places."
15 the September 18 deadline in federal law for
As the court acknowledges,
sending ballots to uniformed and overseas voters may be waived under certain
circumstances, including "a delay in generating ballots due to a legal contest."16 A delay
could mean that absentee ballots would take longer to count; it would not disenfranchise
17 If an exigency overrode that deadline, the next target date - the week of
voters.
September 28 - was when the Division began to send out absentee ballots, still with
five weeks remaining before election day. Could the Division meet that deadline? All
14 Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C.
§ 20302(a)(8)(A) (2018). Fenumiai explained that the deadline was actually
September 19, but that day was a Saturday, when the Post Office did not offer bulk mail
service.
15 Opinion at 5 note 7.
16 52 U.S.C. § 20302(g)(2)(B)(ii). The source of an Alaska "State Advance"
voter deadline is not explained in our record.
17 See N.J. Democratic Party v. Samson, 814 A.2d 1028, 1041 (N.J. 2002)
(concluding that amending ballots after absentee ballots had been mailed to uniformed
and overseas voters would not violate their voting rights, because if it becomes
"necessary to extend the time for certifying the election to allow absentee ballots to be
tabulated, that remedy is also available" under federal law).
-33- 7540
----------------------- Page 34-----------------------
evidence in the record indicates that it could. The challenged ballots - already printed
at the time of the hearing - had taken ten days to print: from September 5, when the
"[g]eneral election ballot artwork [was] sent to the printer," to September 15, when
18
"800,000 ballots, including 47 different versions, had been printed."
Fenumiai's testimony at the preliminary injunction hearing focused on the
paper supply. In her affidavit she had explained that the Division's printer "has
approximately 390,000 sheets of the required special ballot paper." The amount was
plenty for the uniformed and overseas ballots, which Fenumiai predicted could be
reprinted "within a week," meaning that any required extension of that federal deadline
could be short. But if the printer had to acquire more paper - which it would have to
do to reprint all 800,000 ballots - "it would take one week to get the paper [from the
supplier in Seattle] to the printer's location," and for a quick turnaround the printer
would have to hire more staff on short notice, which could be problematic. Questioned
about these issues at the hearing, Fenumiai testified that the printer had told her it could
get the additional ballot paper no earlier than September 29, although the Division had
made no efforts to secure paper from a different source. Even assuming that some of the
printing had to wait until September 29, the printer had enough paper on hand to cover
18 According to local news reports, on September 24 - six days after this
court accepted the Division's representation that it was too late to modify the ballots to
address Galvin's concern - the Division responded to an Anchorage house candidate's
complaint that his political affiliation had been left off the ballot by reprinting ballots for
house districts in Chugiak, Palmer, Anchorage, and southwestern Alaska. See James
Brooks, After Libertarian Challenge, Alaska Elections Officials Reprint Ballots for 4
State House Districts, ANCHORAGE DAILY NEWS (Sept. 28, 2020),
https://adn.com/politics/alaska-legislature/2020/09/28/after-libertarian-challenge-alaska-
elections-officials-reprint-ballots-for-4-state-house-districts/. The Division redesigned
and reprinted 81,500 ballots "for the four impacted district[s]," reportedly within three
days of the Director's decision to do so. Id.
-34- 7540
----------------------- Page 35-----------------------
all the uniformed and overseas voters, the "State Advance" voters, the regular absentee
voters, and a good portion of the remainder. And once resupplied with paper, the printer
would still have 20 days to finish the job before the start of early voting on October 19.
Fenumiai identified other timing challenges besides the printing itself. She
explained that "[v]oting equipment is tested for accuracy for the general election ballot"
beginning on "September 10 and continuing through September." But the various steps
do not take up that entire time: they include initial testing of scanners at the Director's
office (four days), a "second round of testing in the regional offices" (approximately five
days), and "reprogram[ming] the ballots that appear on the touch screen units" ("a
minimum of eight hours"). Additional time is necessary for logistics such as shipping
equipment from one location to another and coordinating with local election boards so
that testing can be done with the appropriate oversight; there was no evidence that this
added time would be significant. And problems with the scanners do not mean
disenfranchising voters, only that ballots would need to be hand-counted. In sum,
nothing in the Director's list of tasks suggests that they could not be successfully
accomplished by October 19, the start of early voting - which was still over a month
away on the day we decided this appeal.
It is understandable that a court will defer to an expert's judgment when
faced with a consequential issue in a technically complex area, especially when the court
must act on shortened time. But when considering the newly adopted public interest
factor, it is imperative that courts critically examine what the State claims to be in the
public interest - the State's interest and the public interest will not always align. I
assume most would agree that Galvin's probability of success on the merits would entitle
her to injunctive relief if, with 45 days remaining before election day, she learned that
the Division had left her name off the ballot entirely, or that it had inadvertently switched
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the party affiliations of the two major party candidates. This case is perhaps in a
different place on the continuum of cases demanding an extraordinary judicial remedy,
but the Division would have exactly the same public interest argument in each case: any
change now would threaten an orderly election. The evidence that would not carry the
day in those cases should not do so here either.
D. Conclusion
Given the public interest in a proper ballot and the weakness of the
Division's evidence that the ballots could not be timely corrected without serious harm
to an orderly election, I would hold that it was an abuse of discretion to deny the
requested injunction.
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