On Friday, May 29th, the ACLU of Alaska, with ACLU Voting Rights Project and the ACLU Racial Justice Project, filed an amicus brief in Alaska v. Smith, a case that highlights the serious consequences of the confusing nature of voting rights in Alaska for U.S. nationals from American Samoa, who the federal government does not currently recognize as U.S. citizens. This case is currently in front of the Alaska Court of Appeals.
Ms. Tupe Smith is a U.S. national and resident of Whittier who believed that as a U.S. national, she could register for and vote in a local election. In American Samoa, which recently celebrated 125 years as a U.S. territory, she was eligible to vote in local elections, just not for President. Ms. Smith and her family are deeply rooted in the small Southcentral Alaska town where her family is actively involved. Ms. Smith volunteered at her children’s school, and her husband was a volunteer firefighter. Ms. Smith was so involved in her community that she ran for and won a seat on the local school board.
Before running for the school board seat, Ms. Smith repeatedly asked local election officials for guidance about whether she was eligible to vote as a U.S. national. She was told she could and so believed she was able to vote in Whittier’s local election and also to run for local office. Now the state is pressing criminal charges, arguing that she should be convicted of a felony even if she did not realize she was ineligible to vote.
Our amicus brief argues that Ms. Smith’s actions do not meet the legal standard necessary to support these criminal charges, especially because public officials instructed her that she was eligible to register and vote. As this case demonstrates, the rules and regulations involving voting rights for U.S. nationals living in the U.S. are complex and confusing. As a result, Ms. Smith is facing up to ten years in jail for doing what she believed to be her civic duty.
There are many reasons that voting eligibility is confusing for U.S. nationals living in Alaska. People like Ms. Smith, who are born in American Samoa, have a unique status when they move to the United States. They carry a U.S. passport and are eligible for many public benefits reserved for U.S. citizens. In a few localities around the country, U.S. nationals are able to vote in local elections. In Alaska, people born in American Samoa are eligible for many benefits that U.S. citizens receive including Medicaid, SNAP, ATAP, and the Permanent Fund Dividend, but there are no local jurisdictions in our state that currently permit U.S. nationals who are not recognized as U.S. citizens to vote in local elections. Alaska law even recognizes American Samoans as "U.S. citizens" for certain purposes. All of this only adds to the confusion.
However, our voting rules have been unclear. Alaskans can register to vote in a few different ways: directly submitting a voter registration form through the Division of Elections, automatic voter registration with the Department of Motor Vehicles, and by applying for a Permanent Fund Dividend. Historically, these forms did not include a box to check for so-called "non-citizen" U.S. nationals, leading to a great deal of confusion for state officials as well as for people born in American Samoa. Additionally, the State requires “non-citizen” U.S. nationals to withdraw their inadvertent voter registration instead of auditing its own registration for potential errors, putting the responsibility and criminal liability on U.S. nationals instead of the State taking responsibility, as has been the situation in other states like Oregon.
Prosecuting U.S. Nationals diminishes public safety in Alaska.
This case also illustrates the need to ensure that the State of Alaska’s public safety resources are properly allocated to truly protect Alaskans. Rather than focusing on crimes that threaten the lives and well-being of Alaskans, this case is costing our state scarce public safety resources to criminally investigate and prosecute Ms. Smith. Compounding these costs is the fact that last fall, more than a dozen Alaska State Troopers were sent to Whittier to investigate whether other American residents had unlawfully voted. That investigation resulted in ten additional U.S. nationals being charged with perjury, voter misconduct, and other alleged offenses regarding voting, all related to their birth in American Samoa. These individuals have now entered the criminal legal system and are waiting for the next steps in their legal processing. It is unclear if Alaska intends to investigate and prosecute others born in American Samoa who may have similarly been tripped up by all these confusing - and often conflicting - standards.
There are pressing questions about this investigation. Why were over a dozen State Troopers deployed to pursue allegations of non-violent crimes? How much did it cost Alaskans to carry out this investigation? What other calls were State Troopers unable to respond to because they were working this raid? These questions remain unanswered.
In addition to the costs to our public safety, Alaskans are bearing financial costs for this as well. Our state is in a fiscal crisis. Rather than pursuing a costly criminal investigation, public officials could have resolved the issues by speaking with people and by clarifying voting rules and regulations for Alaskans who were attempting in good faith to exercise their civic duty. The state’s heavy-handed approach will cost the state scarce dollars that could be spent on improving our elections, education, or other public safety measures.
A Better Way Forward
While many American Samoans in Alaska now face an uncertain legal future, we know that fixing the underlying problem rather than punishing people for civically engaging in their communities is the best path forward to ensure Alaska maintains its election integrity. The chilling effect of the State’s aggressive investigation has sent ripples through the Pacific Islander community in Alaska. To rectify this issue, the State of Alaska needs to clarify who is and is not an eligible voter, and ensure that the process for registering to vote, including automatic voter registration, does not create traps for unsuspecting residents.
Let's work to fix these problems rather than criminalize hardworking Alaskans based on where they were born in the United States.
