Alaska appeals court judges appear skeptical about American Samoan voter misconduct case

In oral argument, two of three judges voiced disagreement with the state’s interpretation of a law used to charge a Whittier woman

(Getty Images)

By James Brooks

Alaska Beacon

Members of Alaska’s Court of Appeals appeared skeptical Thursday about Alaska prosecutors’ claim that a Whittier resident from American Samoa violated state law when she ran for school board in 2023.

In an hour-long oral argument, a three-judge appeals panel heard arguments for and against Tupe Smith, who is accused of elections misconduct.

People from American Samoa are U.S. nationals — they have some of the same legal rights as other Americans, but aren’t citizens. In 2023, the state of Alaska charged Smith with elections misconduct after she signed a document declaring that she was a U.S. citizen.

She has said she knew she couldn’t vote for President but didn’t know that she could not vote or run for office in local elections.

Since Smith was charged, the state has charged 10 other Whittier residents with similar crimes for almost identical reasons.

The case against Tupe Smith is in Anchorage Superior Court, but after a judge ruled against her request to have her indictment dismissed, she appealed the dismissal. 

Unusually, the appeals court took up the issue immediately, without waiting for the Superior Court to rule on Smith’s guilt or innocence. 

Thursday’s hearing, in front of a three-judge appeals panel, has broad implications. Alaska has charged 11 American Samoans from Whittier, including Smith, with elections-related crimes. If their cases go forward, similar charges may arise in the future against other Alaskans who believe they are eligible to vote but are actually ineligible. 

That isn’t a hypothetical issue: The Alaska Department of Motor Vehicles accidentally registered dozens of noncitizens to vote between 2022 and 2024, and many were sent voter cards. 

At issue is the difference between “intentionally” and “knowingly” in elections law — does someone commit misconduct if they accidentally affirm they are an American citizen, or must they be aware they are deceiving an elections official? 

There are relevant definitions in other parts of state law, but elections law may be different.

Attorneys representing Smith have argued that state law specifies that someone can’t break elections law unless they knowingly attempt to deceive elections officials. 

Smith didn’t intend to deceive, her attorneys argue, and even an Alaska State Trooper investigating the alleged crime got the law wrong, they said.

Attorneys representing the state have argued that in the context of elections law, intentionally and knowingly should be read similarly, but on Thursday, the appellate panel repeatedly questioned the state’s arguments.

“At least for me — I don’t know about the other judges — I don’t think it can possibly mean ‘knowingly.’ It has to mean something else. But what that something else is, is where I think it’s difficult,” said Judge Marjorie Allard.

Shortly afterward, Judge Bethany Harbison offered a similar remark.

“It does seem as though the Legislature did intend … that there be a kind of consciousness of wrongdoing … that it includes an intent to deceive, because that’s what this case seems to be ultimately about,” she said.

At the end of the hearing, the justices took the case under advisement, with a written decision to be published later.

• James Brooks is a longtime Alaska reporter, having previously worked at the Anchorage Daily News, Juneau Empire, Kodiak Mirror and Fairbanks Daily News-Miner. Alaska Beacon is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.