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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. Arctic Village Council, League of Women Voters of Alaska, Elizabeth L. Jones, and Barbara Clark (9/17/2021) sp-7556

State of Alaska, Office of Lieutenant Governor, Division of Elections and Director Gail Fenumiai, in an Official Capacity v. Arctic Village Council, League of Women Voters of Alaska, Elizabeth L. Jones, and Barbara Clark (9/17/2021) sp-7556

           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                                  )  

THE  LIEUTENANT  GOVERNOR,                                      )     Supreme Court No. S-17902  

                                                                                                       

DIVISION  OF  ELECTIONS,  and                                   )  

DIRECTOR  GAIL  FENUMIAI,  in  an                               )     Superior Court No. 3AN-20-07858 CI  

                                                                                                                                

official  capacity,                                             )  

                                                                )     O                   

                                                                         P I N I O N  

                                Petitioners,                    )  

                                                                                                                 

                                                                )    No. 7556 - September 17, 2021  

           v.                                                   )  

                                                                )  

                                   

ARCTIC VILLAGE COUNCIL,                                         )  

                                                                )  

LEAGUE OF WOMEN VOTERS OF  

                                               

ALASKA, ELIZABETH L. JONES,                                     )  

                                                                )  

and BARBARA CLARK,  

                                                                )  

                                Respondents.                    )  

                                                                )  



                                    

                                                                                                                  

                     Petition for Review from the Superior Court of the State of  

                                                                                                        

                     Alaska,  Third  Judicial  District,  Anchorage,  Dani  Crosby,  

                     Judge.  



                                                                                                             

                     Appearances: Laura Fox, Lael Harrison, and Margaret Paton  

                                                                                                              

                     Walsh,   Assistant              Attorneys          General,         Anchorage,            and  

                                                                                                                  

                     Clyde"Ed" Sniffen, Jr., Acting Attorney General, Juneau,for  

                                                                                                               

                     Petitioners.          Natalie Landreth,  Matthew N.  Newman, and  

                                                                                                           

                     Wesley  James  Furlong,  Native  American  Rights  Fund,  

                                                                                                     

                     Anchorage,            for      Respondent            Arctic        Village        Council;  

                                                                                                                   

                      Stephen Koteff, Joshua Decker, and Aadika Singh, ACLU of  

                                                                                                      

                     Alaska Foundation, Anchorage, and Dale E. Ho, American  

                                                                                                                   

                     Civil Liberties Union, New York, for Respondents League of  

                                                                           

                     Women            Voters         of      Alaska,         Elizabeth           Jones,        and  


----------------------- Page 2-----------------------

                        Barbara Clark; and Ezra D. Rosenberg, Pooja Chaudhuri, and                                          

                       Natasha   Chabria,   Lawyers'   Committee   for   Civil   Rights  

                       Under the Law, Washington, D.C., for all Respondents.                                                



                        Before: Bolger,ChiefJustice,                        Winfree, Maassen, Carney and  

                        Borghesan, Justices.   



                        MAASSEN, Justice.   



I.          INTRODUCTION  



                       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 vote absentee have a witness.1  

                                                                                                                                                           



            1          AS 15.20.081(d).   



                                                                          -2-                                                                        7556  


----------------------- Page 3-----------------------

Compliance with this requirement takes one of two forms.                                                                                          Under the first, voters must                             



mark their ballot, "place the ballot in the secrecy sleeve, . . . place the secrecy sleeve in                                                                                                                     



the envelope provided, and . . . sign the voter's certificate on the envelope," all "in the                                                                                                                    



presence of a notary public, commissioned officer of the armed forces including the                                                                                                                            



National Guard, district judge or magistrate, United States postal official, registration                                                                                                 



official, or other person qualified to administer oaths . . . who shall sign as attesting                                                                                                        

official and shall date the signature."                                                      2     Under the second procedure - available "[i]f  

                                                                                                                                                                                                            



none of the officials listed in this subsection is reasonably accessible" - the voter "shall  

                                                                                                                                                                                                         



sign the voter's certificate in the presence of an individual who is 18 years of age or  

                                                                                                                                                                                                                 



older, who shall sign as a witness and attest to the date on which the voter signed the  

                                                                                                                                                                                                               



certificate in the individual's presence"; the voter shall also "certify, . . . under penalty  

                                                                                                                                                                                                    

of perjury, that the statements in the voter's certification are true."3  

                                                                                                                                                                         



                                                                                                                                                                                                         

                                 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  



                       4  

presence.   



                                                                                                                                                

                 B.              The Lawsuit And Request For Injunctive Relief  



                                                                                                                                                                                                                    

                                 The 2020 general election was scheduled for November 3. On September 8  



                 2               Id .  



                 3               Id.  



                 4               A  regulation  requires  that  voters provide  identification  either  at  the  time  



they  apply for an absentee ballot  by  mail  or  when  signing  the  voter's  certificate  on  the  

absentee ballot's return envelope.  6 Alaska Administrative Code  (AAC) 25.510(a)(1)  

and  (3)  (2021).   But  the  certifying  witness's  obligation  does  not  extend  to  confirming  the  

voter's  identity.   See  AS   15.20.081(d).  



                                                                                                        -3-                                                                                               7556
  


----------------------- Page 4-----------------------

                                                                                                                   

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 theupcomingelection.  



                                                                                                                             

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  



                                                                                                                             

participationingovernment,"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  



                                                                -4-                                                         7556
  


----------------------- Page 5-----------------------

                                                                                                                  

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 contact  



                                                                                                                               

with others."  According to the complaint, Jones had no ready access to a notary or any  



                                                                                                                                  

other adult who could witness her absentee ballot; the complaint noted that "because of  



                                                                                                                                 

a recent [United States Postal Service] directive, [Jones's] letter carrier [would] not be  



                                                                                                                         

allowed to witness her ballot in the general election."  Jones believed that the witness  



                                                                                                                 

requirement would force her "to choose between her right to vote and an unacceptable  



                              

risk to her health."  



                                                                                                                                      

                    Theallegations regarding theother individualplaintiff,Clark, weresimilar.  



                                                                                                                              

Clark was 72 years old and lived alone; she considered herself "a 'super voter' and [had  



                                                                                                                               

voted]in every major election." LikeJones, 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 moregeneral backgroundtotheplaintiffs'claims,thecomplaint 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  



                                                                -5-                                                         7556
  


----------------------- Page 6-----------------------

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                                                                                         

                                                                                                          5  and to equal protection of the laws.6  

would violate voters' constitutional rights to vote                                                                                                                                          



As remedies, the complaint sought a declaratory judgment that the witness requirement  

                                                                                                                                                                 



was  "unconstitutional  and  invalid  during  the  COVID-19  pandemic";  an  injunction  

                                                                                                                                                                    



against  enforcement  of  the  witness  requirement  during  the  pandemic;  and  orders  

                                                                                                                                                                            



requiring the Division of Elections to modify election materials to reflect the suspension  

                                                                                                                                                                    



of  the  witness  requirement,  to  educate  the  public  about  the  change,  and  to  count  

                                                                                                                                                                              



otherwise valid absentee ballots.  

                                                                         



                             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.  

                                                                     



              5              The Alaska Const., art V, § 1 provides in relevant part:                                                                "Every citizen of                 



the United States who is at least eighteen years of age, who meets registration residency                                                                              

requirements which may be prescribed by law, and who is qualified to vote under this  

                                                                                  

article, may vote in any state or local election."  



               6  

                                                                                                                                                                  

                             The Alaska Const., art I, § 1 provides in relevant part:  "This constitution  

                                                                                                                                         

is dedicated to the principles . . . that all persons are equal and entitled to equal rights,  

                                                                                      

opportunities, and protection under the law."  



                                                                                           -6-                                                                                  7556
  


----------------------- Page 7-----------------------

                                                                                                                            

                    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  



                                                                                                                             

from  gathering  with  anyone  outside  their  household  and  prohibiting  people  from  



                                                                                                                                

congregating  at community facilities like the post office,  the village store, and  the  



                                                                                                                               

community hall. Yatlin attested that there were at least 50 people in the community who  



                                                                                                                         

did not have another adult in the household to act as a witness for purposes of absentee  



                                                                                                                                   

voting.  She concluded that because many residents would have to leave their homes to  



                                                                                                                      

satisfy the witness requirement, "there [was] no way . . . people [could] fully participate  



                                                                                                                                       

in the upcoming general election with the current restrictions on mail in ballots in place."  



                                         

          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, fromthe voter's application for anabsentee 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  



                                                                -7-                                                          7556
  


----------------------- Page 8-----------------------

                                                                                                                      

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  



                                                               -8-                                                         7556
  


----------------------- Page 9-----------------------

                                                                                                               

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     maintaining            the      witness         requirement            during        the  



                                                                                                                    

pandemic  -  deterring  fraud  and  promoting  voter  confidence  in  the  election's  



                                                                                                                              

integrity -were"notsufficiently compellingtojustifyburdeningPlaintiffs' right to vote  



                                                                                                                     

as safely as possible in the 2020 General Election."  As for the State's laches argument,  



                                                                                                                           

the court found that the plaintiffs "did not unreasonably delay in bringing their suit,"  



                                                                                                               

reasoning that the science of the pandemic's reach and effects, and the government's  



                                                                                                                              

response to it, were ever-changing - "the pandemic is a shifty beast" - and it was  



                                                                                                                                     

therefore not unreasonable for the plaintiffs to wait "until early September to file suit."  



                                                                                                                        

                    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 ofasuperior court's decision to grant or deny preliminary injunctiverelief:  



                                                                                                                              

"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  



                                                               -9-                                                         7556
  


----------------------- Page 10-----------------------

                                                                                                                                         7  

on undisputed facts or may involve mixed questions of fact and law."                                                                        A fact issue may         



exist if, for example, there is a question about "whether a party faces irreparable harm                             

unless an injunction is granted."                                8  

                                                                     



                                                                                                                                                                        

                           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  



                                                                                                                                                                   9  

                                                                                                                                                      

court's rejectionofthelaches defenseimplicates threedifferentstandards ofreview,  two  



                                                                                                                                                                   

of which are relevant here:  " '[W]hether the facts demonstrate an unreasonable delay  



                                                                                                                                                                 10  

                                                                                                                                                     

and a resulting prejudice' . . . presents questions of fact we review for clear error."                                                                               But  



                                                                                                                                                                           

"whether, based on the facts, it was appropriate to apply the laches doctrine . . . is a  



                                                                                                                                                         

question  reserved  to the superior  court's discretion,  and  we review it to determine  



                                                                                        11  

                                                                                                                                                                           

whether  that discretion  has been  abused."                                                  Whether  the plaintiffs demonstrated  a  



                                                                                                                                                               

probability of success on their constitutional claim is subject to our de novo review,  



                                                                                                                                                         

under which we "will 'adopt the rule of law that is most persuasive in light of precedent,  



                                           12  

                                          

reason, and policy.' " 



             7             State,  Div.  of  Elections  v.  Galvin,  491  P.3d  325,  332  (Alaska  2021).   



             8            Id.  



             9             See  Anderson  v.  State,  Dep't  of  Admin.,  Div.  of  Motor   Vehicles,  440  P.3d  



217,  219-20  (Alaska  2019).  



              10          Id.   at   219   (quoting  Kollander   v.  Kollander,   332   P.3d   897,   902   (Alaska  



2014)).  



              11          Id.  at  219-20.  



              12  

                                                                                                                                                                       

                           Sonneman v. State, 969 P.2d 632, 636 (Alaska 1998) (quoting Guin v. Ha,  

                                                                                     

591 P.2d 1281, 1284 n.6 (Alaska 1979)).  



                                                                                   -10-                                                                            7556
  


----------------------- Page 11-----------------------

                        Finally, "once a party establishes the required elements for preliminary                                        



injunctiverelief, the[superior]court                             exercises itsdiscretionary authority"when deciding                           



whether to grant or deny the requested relief; "thus, we review that decision for abuse                                                     



                          13  

of discretion."                 



IV.	        DISCUSSION  



            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  

                                                                                                                                                           



partyshould begranted apreliminary injunction; which standard applies depends on "the  

                                                                                                                                                      

nature of the threatened injury."14  The first standard is the "balance of hardships," which  

                                                                                                                                                  



applies if "the plaintiff faces the danger of 'irreparable harm' and if the opposing party  

                                                                                                                                                    

is adequately protected."15                       Under this standard, a "plaintiff 'must raise "serious" and  

                                                                                                                                                      



substantial questions going to the merits of the case; that is, the issues raised cannot be  

                                                                                                                                                         

"frivolous  or  obviously  without  merit."  '  "16                                      The  second  standard  applies  if  "the  

                                                                                                                                                     



plaintiff's threatened harm is less than irreparable or if the opposing party cannot be  

                                                                                                                                



adequatelyprotected"; in thosecircumstances "wedemandoftheplaintifftheheightened  

                                                                                                                                          

standard of a 'clear showing of probable success on the merits.' "17  

                                                                                                                            



                        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  

                                                                                                                                                    



            13          Galvin,  491  P.3d  at  332.   



            14          See  State,  Div.  of  Elections  v.  Metcalfe,  110  P.3d  976,  978  (Alaska  2005).  



            15          Id.  (quoting  State  v.  Kluti  Kaah  Native  Vill.  of  Copper  Ctr.,  831  P.2d  1270,  



 1272  n.4  (Alaska   1992)).  



            16          Id.  (quoting  Kluti  Kaah,  831  P.2d  at   1273).  



            17          Id.  (quoting  Kluti  Kaah,  831  P.2d  at   1273).  



                                                                           -11-	                                                                   7556
  


----------------------- Page 12-----------------------

 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                                                                                                                                                                                                                                                            

                                                                                                                                                                                                                                                                                                                             18           The court  

of the pandemic and resulting risks inherent in person-to-person contact.                                                                                                                                                                                                                                                                                   



emphasized that thewitness requirement placed asevereburden on the fundamental right  

                                                                                                                                                                                                                                                                                                                                                                



to vote by "forc[ing] voters to choose between risking their health by coming into contact  

                                                                                                                                                                                                                                                                                                                                                     



with a witness or forgo[ing] their right to vote entirely."  The court concluded that the  

                                                                                                                                                                                                                                                                                                                                                                      



 State's  interests,  though  legitimate,  "[were]  not  sufficiently  compelling  to  justify  

                                                                                                                                                                                                                                                                                                                                                     



burdening Plaintiffs' right to vote as safely as possible in the 2020 General Election."  

                                                                                                                                                                                                                                                                                                                                                                                        



                             18                          We   note   that   the   superior   court   decided   the   motion   for   preliminary  



injunction by reference to state law only, and the State did not argue in its petition for                                                                                                                                                                                                                                                                            

review that the court's enforcement of voting rights under the Alaska Constitution was                                                                                                                                                                                                                                                                            

limited by the United States Constitution or other federal law.                                                                                                                                                                                                                



                                                                                                                                                                                 -12-	                                                                                                                                                                         7556
  


----------------------- Page 13-----------------------

                            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 addressthe laches argument first, concluding that the superior court did  



                                                                                                                                                                               19  

                                                                                                                                                                 

not abuse its discretion when it rejected laches as a defense to the plaintiffs' claims. 



                                                                                                                                                                                    

"The defense of laches requires that the defendant 'show two "independent" elements':  



                                                                                                                                                  

'(1) that the plaintiff has unreasonably delayed in bringing the action, and (2) that this  



                                                                                                                                                            20  

                                                                                                                                                           

unreasonable delay has caused undue harm or prejudice to the defendant.' " 



                                                                                                                                                                            

                            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  



              19           See Anderson v. State, Dep't of Admin., Div. of Motor Vehicles                                                                    , 440 P.3d     



217, 219-20 (Alaska 2019) ("[W]hether, based on the facts, it was appropriate to apply                                                                                 

the laches doctrine . . . is a question reserved to the superior court's discretion, and we                                                                         

review it to determine whether that discretion has been abused.").                                                 



              20           Id. at 220-21 (quoting City & Borough of Juneau v. Breck, 706 P.2d 313,  

                                                                                                                                                                         

315 (Alaska 1985)).  

                           



                                                                                     -13-	                                                                              7556
  


----------------------- Page 14-----------------------

 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  

                                                                                                                                                             21              The right to vote "encompasses the voter's right to  

prerogatives of citizenship.' "                                                                                                                                                                                                                                                                                                                                                                                                                 



 express the voter's opinion and is a way to declare the voter's full membership in the  

                                                                                                                                                                                                                                                                                                                                                         



                                  21                                Miller v. Treadwell                                                                                , 245 P.3d 867, 868 (Alaska 2010) (alterations omitted)                                                                                                                                                                                   



 (quoting   Carr v. Thomas                                                                                                          , 586 P.2d 622, 626 (Alaska 1978));                                                                                                                                                             see also Dansereau v.                          

 Ulmer, 903 P.2d 555, 559 (Alaska 1995) (observing that the right to vote is "fundamental                                                                                                                                                                                                                                                                                             

to our concept of democratic government").                                                                                                            



                                                                                                                                                                                                                    -14-	                                                                                                                                                                                                          7556
  


----------------------- Page 15-----------------------

                                            22  

political community."                            Our four-part balancing test reflects the importance of this right,                                                 



as well as the principle that "Alaska's constitution is more protective of rights and                                                                                   

liberties than is the United States Constitution."                                               23  



                           Our approach involves four steps. When an election law is  

                                                                                                                                                 

                           challenged  the  court  must  first  determine  whether  the  

                                                                                                                                             

                           claimant has in factasserted aconstitutionally protected right.  

                                                                                                                                          

                           If so we must then assess "the character and magnitude of the  

                                                                                                                                               

                           asserted injury to the rights."  O'Callaghan v. State, 914 P.2d  

                                                                                                                                            

                            1250, 1254 (1996) (quoting Burdick v. Takushi, 504 U.S.  

                                                                                                                                           

                                                                 

                                                                                                                                              

                           428, 434 (1992)).  Next we weigh "the precise interests put  

                                               

                                                                                                                                    

                           forward by the State as justifications for the burden imposed  

                                                                                                                                     

                                                                                                                                     

                                                                                                                         

                           by its rule."  Id. (quoting Burdick, 504 U.S. at 434). Finally,  

                                                                                                                                              

                           we judge 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."            Id.        This  is  a  flexible  test:                         as  the  burden  on  

                                                                                                                                              

                           constitutionally protected rights becomes more severe, the  

                                                                                                                                                

                           government interest must be more compelling  and  the fit  

                                                                                                                                      

                           between the challenged legislation and the [S]tate's interest  

                                                          [24]  

                                             

                           must be closer. 



"[S]ubstantial burdens requirecompelling [State]interestsnarrowlytailoredtominimally  

                                                                                                                                                            



infringe on the right; modest or minimal burdens require only that the law is reasonable,  

                                                                                                                                                         

non-discriminatory, and advances 'important regulatory interests.' "25  

                                                                                                                                        



                           We address each factor of this test below.  

                                                                                                                 



              22           Id.  (alterations omitted) (quoting                                Dansereau, 903 P.2d at 559).                       



              23           State, Div. of Elections v. Green Party of Alaska                                                     , 118 P.3d 1054, 1060               



(Alaska 2005).                  



              24           Id. at 1061 (footnotes integrated into text).  

                                                                                                       



              25           State  v.  Alaska  Democratic  Party,  426  P.3d  901,  909  (Alaska  2018)  

                                                                                                                                                                   

(quoting O'Callaghan v. State, 914 P.2d 1250, 1254 (1996)).  

                                                                                                            



                                                                                    -15-                                                                             7556
  


----------------------- Page 16-----------------------

                                                                                                                     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 thewitness                                                                                                                                                                                                                                      requirement wouldmake                                                                                                                            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                                                                                                                                                                                                                                                                                                                                                   



                                                                                                                                                                                                                                               -16-	                                                                                                                                                                                                                                     7556
  


----------------------- Page 17-----------------------

  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                                          



                                                                                                                                                                                                                                                                                                                                                                                                                                                                        26  

judicial notice of public records supporting the reasonableness of the affiants' fears.                                                                                                                                                                                                                                                                                                                                                                                              



                                     26                                  The plaintiffs cited information and directives from the CDC, the World                                                                                                                                                                                                                                                                                            



 Health Organization, and State and local officials in their complaint and their motion for                                                                                                                                                                                                                                                                                                                                                                     

 preliminary injunction.                                                                                                        The superior court did not expressly cite these sources in its                                                                                                                                                                                                                                                                   

  decision, but it plainly assumed as true the basic facts about the COVID-19 pandemic's                                                                                                                                                                                                                                                                                                                         

  seriousness   and   the   governmental   response,   as   it   was   entitled   to   do   under   Alaska  

 Evidence Rule 201(b).                                                                                                     Over the past year numerous federal and state courts have taken                                                                                                                                                                                                                                                        

judicial notice of information about the pandemic published by the CDC and other                                                                                                                                                                                                                                                                                                                                                                 

 reputable sources.                                                                                  See,  e.g.,  Nat'l Ass'n for Advancement of Colored People v. U.S.                                                                                                                                                                                                                                                                                

 Postal Serv.                                                       , 496 F. Supp. 3d 1, 6-7 & n.1 (D.D.C. 2020) (taking judicial notice of                                                                                                                                                                                                                                                                                                                       

  COVID-related   "documents   and   information   on   official   government   websites"   and  

                                                                                                                                                                                                                                                                                                                                                                                                         (continued...)  



                                                                                                                                                                                                                              -17-                                                                                                                                                                                                                    7556
  


----------------------- Page 18-----------------------

According to the Alaska Department of Health and Social Services, Alaska had 2,681                                                                              



reported cases of COVID-19 and 16 related deaths in September 2020; 7,695 cases and                                                                                  

45 deaths in October 2020; and 16,495 cases and 90 deaths in November 2020.                                                                                27  

                                                                                                                                                                From  



                                                                                                                                                              

the beginning of the pandemic until September 12, 2021, Alaska experienced 90,946  



              26           (...continued)  



                                                                                                                                                          

 "certain  information at the World  Health  Organization  website, the Johns Hopkins  

                                                                                                                                                      

University website, and the Mayo Clinic website which is 'not subject to reasonable  

                                                                                                                                                                          

 dispute' because they are 'sources whose accuracy cannot be reasonably questioned' "  

                                                                                                                                                                   

 (quoting  Fed.  R.  Evid.  201(b)(2)));  Basank  v.  Decker,  449  F.  Supp.  3d  205,  211  

                                                                                                                                                                   

 (S.D.N.Y. 2020) ("The Court takes judicial notice that, for people of advanced age, with  

                                                                                                                                                                     

underlying health problems, or both, COVID-19 causes severe medical conditions and  

                                                                                                                                                                     

has increased lethality.");  United States v. Bryant, 500 F. Supp. 3d 1172, 1173 n.1  

                                                                                                                                                           

 (E.D.Wash.  2020)  ("The  Court  takes  judicial  notice  of  the  Center[s]  [for]  Disease  

                                                                                                                                                       

 Control and Prevention's . . . website regarding Covid-19."); United States v. Greenlight  

                                                                                                                                                     

 Organic, Inc., 503 F. Supp. 3d 1269, 1273 (Ct. Int'l Trade 2021) ("The court takes  

                                                                                                                                                                  

judicial notice that travel and remaining indoors for extended periods of time with other  

                                                                                                                                                                    

people  during  the COVID-19  pandemic poses personal health risks.");  Cty.  of Los  

                                                                                                                                                                   

Angeles Dep't of Pub. Health v. Superior Court of Los Angeles , 275 Cal. Rptr. 3d 752,  

                                                                                                                                                                    

 765 n.8 (Cal. App. 2021) ("[W]e take judicial notice of the CDC and the County of Los  

                                                                                                                                                           

Angeles Public Health websites tracking the numbers of COVID-19 deaths."); Grisham  

                                                                                                                                                              

 v. Romero, 483 P.3d 545, 550 (N.M. 2021) ("[W]e take judicial notice of (1) the serious  

                                                                                                                                                                      

health risks posed by COVID-19, a 'highly contagious and potentially fatal' disease, (2)  

                                                                                                                                                                       

the disease's transmission within New Mexico, and (3) the emergency orders issued by  

                                                                                                                                                                    

 [state officials]." (quoting Legacy Church, Inc. v. Kunkel, 472 F. Supp. 3d 926, 978  

                                                                                                                                                                 

 (D.N.M. 2020), aff'd sub nom. Legacy Church, Inc. v. Collins, 853 F. App'x 316 (10th  

                           

 Cir. 2021))).  



              27          AK COVID-19 Cases Dashboard, Monthly Case Count , ALASKA  DEP 'T OF   

                                                                                                                                         

HEALTH               &   SOC.   SERVS.,                     https://experience.arcgis.com/experience/2d19dc2b5c7e  

                                       

4b399ff6495a8950493d/ (last updated Sept. 12, 2021). The number of Alaska deaths as                                                                                     

reported by the Centers for Disease Control is lower:                                                         12 deaths in September, 33 in                             

 October, and 69 in November.                                  Daily Updates of Totals by Week and State                                            , C   TRS.  FOR  

DISEASE                  CONTROL                    &        PREVENTION ,                        https://www.cdc.gov/nchs/nvss  

                                                          

/vsrr/covid19/index.htm (last updated July 13, 2021).                                                       



                                                                                  -18-                                                                           7556
  


----------------------- Page 19-----------------------

                                                                                                                                  28  

cases of COVID-19, 444 related deaths, and 2,128 hospitalizations.                                                                     The persons most          



at risk of contracting the virus - and the persons most at risk of becoming seriously ill                                                                             



if   they   do   contract   it   -   include   those   over   65,   those   with   preexisting   conditions  



including pulmonary disease and obesity, and members of certain racial and ethnic                                                                            

                                                                                                                             29     The mechanism of  

groups that have historically had poorer access to health care.                                                                                                      



contagion is not fully understood, but generally speaking "COVID-19 spreads when an  

                                                                                                                                                                     



infected person breathes out droplets and very small particles that contain the virus,"  

                                                                                                                                                            



which are then "breathed in by other people or land on their eyes, noses, or mouth" and  

                                                                                                                                                                   

"[i]n some circumstances . . . may contaminate surfaces they touch."30  

                                                                                                                                         "People who are  

                                                                                                                                                                    

closer than 6 feet from the infected person are most likely to get infected."31  

                                                                                                                                                       



                                                                                                                                                                   

                          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  away,  with  appropriate  sanitization  and  



                                                                                                                                                    

masking - even these attenuated encounters have risks that persons of heightened  



                                                                                                                                                        

susceptibility may be anxious to avoid.  Like the superior court, we therefore conclude  



             28           ALASKA  DEP 'T OF  HEALTH  & S                                OC. S     ERVS.,  supra  note 27.   



             29  

                                                                      

                          Medical  Conditions,  CTRS.    FOR    DISEASE    CONTROL    &    PREVENTION,  

https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with- 

                                                                                              

medical-conditions.html (last updated Aug. 20, 2021).  



             30           How COVID-19 Spreads                              , C  TRS.  FOR  DISEASE   CONTROL   & P                               REVENTION,  



https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid- 

                                                                      

spreads.html (last updated July 13, 2021).  



             31           Id.  



                                                                                 -19-                                                                           7556
  


----------------------- Page 20-----------------------

that the witness requirement placed a substantial burden on the right to vote during the                                                                                       



 2020 general election.       



                                          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  



                                                                           32  

minimally   infringe   on   that   right."                                                                                                                         

                                                                                   We  have  held  that  "[i]n  evaluating  interests  



                                                                                                                                                           33 

                                                                                                                                                                However,  

underlying state election laws 'a particularized showing' is not required." 



                                                                                                                                                                         

 "while the [S]tate may anticipate likely problems in the electoral process, it cannot justify  



                                                                                                                                                                              

 imposing  significant  constitutional  burdens  merely  by  asserting  interests  that  are  



                                                                     34  

                                                                                                                                                                    

 compelling only in the abstract."                                         Instead, "the [S]tate must explain why the interests  



                                                                                                                                                                          

 it claims are concretely at issue and how the challenged legislation advances those  



                     35  

                                                                                                                                                                          

 interests."              We note that "in reviewing the adequacy of the [S]tate's explanation, a court  



                                                                                                                                                               

must ask not 'in the abstract . . . whether fairness, privacy, etc., are highly significant  



                                                                                                                                                                              

values[ ] but rather . . . whether the aspect of fairness, privacy, etc., addressed by the law  



                                                                 36  

                                                                

 at issue is highly significant.' " 



              32	           State  v.  Alaska  Democratic  Party,  426  P.3d  901,  909  (Alaska  2018).  



              33            State,  Div.   of  Elections   v.   Green  Party   of  Alaska ,   118   P.3d   1054, 1065   



 (Alaska  2005)   (alteration  in   original)   (quoting   O'Callaghan  v.  State,   914  P.2d   1250,  

 1254  (Alaska   1996)).  



              34            Id. at 1066.  

                                         



              35            Id.  

                                     



              36            Id.  (second  through  fourth  alterations  in  original)  (emphasis  omitted)  

                                                                                                                                                                   

 (quoting Cal. Democratic Party v. Jones, 530 U.S. 567, 584 (2000)).  

                                                                                                                                



                                                                                       -20-	                                                                               7556
  


----------------------- Page 21-----------------------

                                 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";                                                                                              37 the  

                                                                                                                                                                                                              



legislature is allowed to address them by anticipating election-related problems "with  

                                                                                                                                                                                                       



foresight rather than reactively, provided that the response is reasonable and does not  

                                                                                                                                                                                                             

significantly impinge on constitutionally protected rights."38  

                                                                                                                                                                                                   

                                                                                                                                                        But to justify the burden  



                                                                                                                                                                                             

on constitutionally protected rights, the witness requirement must actually "advance  



                                     39  

                                                                                                                                                                                                      

those interests"                           and must do so in a narrowly tailored way. This brings us to the fourth  



                                                                                                                            

element of our test for assessing an election law's constitutionality.  



                                                                                                                                                                                                

                                                 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  



                37               See id.   



                38               State, Div. of Elections v. Metcalfe, 110 P.3d 976, 981 (Alaska 2005)  

                                                                                                                                                                                                      

(quoting O'Callaghan, 914 P.2d at 1254).  

                                                                                        



                39               Green Party, 118 P.3d at 1066.  

                                                                                                



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                                                                                                                          40  

interests make it necessary to burden the plaintiff's rights.' "                                                               That is, is the witness         



requirement   effective   enough   at  deterring   fraud   and   boosting   voter   confidence   in  



Alaska's election process that its use is justified despite the substantial burden it places                                                                    

on the right to vote during the pandemic?                                            



                                                                                                                                                                

                           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  



                                                                                                                                                                   

fraudafter theDivisiondetected irregularitiesin absenteeballot applications"in the2018  



                                                                                                                                                           

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  

                                                 41  Nor has the State identified any more relevant examples. As  

                                                                                                                                                                       

required to be witnessed. 



described in thesuperior court's preliminaryinjunctionorder, it asked theState's counsel  

                                                                                                                                                              



at oral argument "whether the Witness Requirement had ever played a role in detecting  

                                                                                                                                                           



fraud," but the attorney "could not identify any such instance in recent memory, and was  

                                                                                                                                                                     



not sure whether it had played a role in detection in the more distant past." The superior  

                                                                                                                                                            



court concluded that, "[b]ased on the record before it," it could not find that the witness  

                                                                                                                                                              



requirement was "an effective tool for detecting voter fraud," and we must agree.  

                                                                                                                                                      



                           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  

                                                                                                                                                                       



             40           Id.  (quoting  O'Callaghan, 914 P.2d at 1254).                                               



             41  

                                   

                           See  STATE OF                 ALASKA   DIV.   OF   ELECTIONS, O                              NLINE  ABSENTEE   BALLOT  

APPLICATION, https://absenteeballotapplication.alaska.gov/ (last visited Sept. 13, 2021).                                                                                     



                                                                                  -22-                                                                            7556
  


----------------------- Page 23-----------------------

                                                                                                              42  

years   of   incarceration."                                                                                             The   court   also   suggested   that  eliminating   the   witness  



requirement "for this election only, . . . to protect individuals' rights to protect their                                                                                                                                                                                                                                                                                 



health   and   to vote," could actually "                                                                                                                               increase   voter confidence in Alaska's elections                                                                                   



 system, showing that even during a pandemic, the [S]tate will maximize our citizens'                                                                                                                                                                                                                                                                     



opportunities to vote safely."                                                                                                    (First emphasis in original, second emphasis added.)                                                                                                                                                                                         We  



acknowledge that the effect of the witness requirement on the public's confidence in the                                                                                                                                                                                                                                                                                           



absentee voting process is not readily susceptible to proof.                                                                                                                                                                                                         However, given the lack of                                                                                        



evidence that the requirement is effective in detecting fraud - and the other protections                                                                                                                                                                                                                                                      



in   place   (such   as   signing   under  penalty   of   perjury)   to   guard   the   integrity   of   the  



process - we conclude that the witness requirement is not closely enough related to the                                                                                                                                                                                                                                                                                            



 State's interest in promoting public confidence in elections to justify the burden it places                                                                                                                                                                                                                                                                   



on voters in the context of the COVID-19 pandemic.                                                                                                                                                                                            



                                                            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                                                                                                                                                                                                                                                                                             



                              42                            The sample absentee ballot submitted to the superior court as an exhibit to                                                                                                                                                                                                                                                 



Director Fenumiai's affidavit shows that the voter is required to certify, under penalty  

                                                                                                                                                                                                                                                                                                                                                                                      

of perjury, that the voter is "a citizen of the United States," has "been a resident of  

                                                                                                                                                                                                                                                                                                                                                                              

Alaska for at least 30 days," has "not requested a ballot from any other state," and is "not  

                                                                                                                                                                                                       

voting in any other manner in this election."  



                                                                                                                                                                                        -23-                                                                                                                                                                                7556
  


----------------------- Page 24-----------------------

midst of the COVID-19 pandemic.                                43  And it bears repeating that Alaska's constitution   



is particularly "protective of rights and liberties."                                   44  

                                                                                             



                        In sum, thewitnessrequirementimposedasubstantial constitutional burden  

                                                                                                                                               



in the unique context of the COVID-19 pandemic.  Although the State's countervailing  

                                                                                                                                 

interests are compelling "in the abstract,"45  the witness requirement was not shown to  

                                                                                                                                                        



effectively advance the State's interest in deterring fraud and is not narrowly tailored to  

                                                                                                                                                        



advance the interest in  promoting  confidence in the election.                                                      The State's asserted  

                                                                                                                                            



interests therefore did not justify the burden on the rights of absentee voters guaranteed  

                                                                                                                                        



by article V, section 1 of the Alaska Constitution.  Because we agree that the plaintiffs  

                                                                                                                                           



were likely to prevail on this constitutional issue, we conclude that the superior court did  

                                                                                                                                                      



not abuse its discretion by granting the preliminary injunction.  

                                                                                                                   



V.          CONCLUSION  



                        WeAFFIRMthesuperiorcourt'sorder granting thepreliminary injunction.  

                                                                                                                                        



            43          See Common Cause R.I. v. Gorbea,  No. 1:20-CV-00318-MSM-LDA,  2020  



WL  4365608, at  *4-5 (D.R.I, July  30, 2020) (approving consent decree "suspend[ing]  

the   witness   and   notary   requirements   for   the   remaining   2020   elections");   League   of  

 Women   Voters  of   Va.  v.   Va.  State  Bd.  of  Elections,  481  F.  Supp.  3d  580,  585-88  (W.D.  

Va.   2020)   (approving   consent   decree   suspending   Virginia's  witness  requirement   for  

absentee   voters   who   "believe   they   may   not   safely   have   a   witness  present   while  

completing  their  ballot").  



            44          Green Party, 118 P.3d at 1066.  

                                                                       



            45          Id. at 1060 (quoting Munro v. Socialist Workers Party, 479 U.S. 189, 194  

                                                                                                                                                     

(1986)).  



                                                                          -24-                                                                    7556
  

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