In high-stakes U.S. House lawsuit, Alaska Supreme Court split on the definition of ‘fifth’
- James Brooks
- Jul 28
- 3 min read
The decision means Alaskans would almost always be presented with four options in the November general election for statewide races
Last year, the Alaska Supreme Court ruled in a 4-1 decision that Eric Hafner, an imprisoned felon in New York state, could remain on Alaska’s U.S. House ballot despite a lawsuit challenging his eligibility.
On Friday, the court issued a 22-page opinion explaining that its decision came down to the definition of the word “fifth.”
When Alaskans approved 2020’s Ballot Measure 2, they installed an open primary election and a ranked choice general election. The top four vote-getters in the primary election, regardless of party, advance to the general election.
If one of those top four candidates withdraws after the primary, a section of that ballot measure says that the Alaska Division of Elections should replace the withdrawn candidate “with the candidate who received the fifth most votes in the primary election.”
But in 2024, two Republican candidates withdrew after the primary, seeking to consolidate support behind fellow Republican Nick Begich III, the eventual winner.
That meant the sixth-place candidate, Democrat Eric Hafner, was promoted to the top-four general election.
Hafner had never lived in Alaska at the time of his candidacy and, if elected, would have been ineligible to serve in office because he was not a resident of the state at the time of his election, something required by the U.S. Constitution.
Alaska Democrats, fearing a split vote between then-incumbent Rep. Mary Peltola and Hafner, sued, arguing that the ballot measure allowed the Division of Elections to promote the fifth finisher to the top four, but not anything beyond that.
The Division of Elections and the Alaska Republican Party disputed that interpretation. An Anchorage Superior Court judge and the Supreme Court sided with the division, preserving Hafner’s candidacy.
In the end, it didn’t matter — Peltola lost to Begich by a margin that was wider than the number of votes Hafner received. Even if every Hafner voter had gone with Peltola, she still would have lost.
Writing after that result, four of the Supreme Court’s justices concluded that the plain language of the Ballot Measure 2 law “is susceptible to more than one reasonable interpretation” and is “ambiguous” about what happens if more than one winning candidate withdraws after the primary.
Given that, the justices relied on logic, prior case law and their view of voters’ intent when Alaskans approved Ballot Measure 2 in 2020.
Historically, the justices noted, they have issued orders that favor candidates’ access to the ballot.
Additionally, the language and context of Ballot Measure 2 support the idea that voters wanted to have four options in the general election.
“The language and purpose of Ballot Measure 2 favor the division’s interpretation: Allowing successive replacements aligns with the ballot measure’s goal of furnishing greater candidate choices for voters,” wrote Justice Jude Pate, an appointee of Gov. Mike Dunleavy, for the majority.
Under the Alaska Democratic Party’s interpretation of the law, the justices wrote, there could be a situation where three candidates withdraw after the primary election, leaving the remaining candidate unopposed in the general election, even if there were more candidates in the primary.
“We doubt that voters and the drafters would have intended such results,” Pate wrote of that hypothetical.
Writing in dissent was Justice Susan Carney, who said that the other four justices were wrong and that the plain language of the law is clear.
“It is hard for me to imagine plainer language than this statute uses to describe the candidate who will fill a vacancy on the general election ballot,” she wrote.
Carney wrote that “Ballot Measure 2 greatly increased Alaskans’ choices for representation” but that the plain meaning of “fifth” is clear and unambiguous.
Because of that fact, “the lengths to which the court has reached to conclude otherwise are unnecessary and unreasonable.”
• 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.
