anc. [email protected] IN THE SUPERIOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE ALYSE GALVIN, ) ) Plaintiff, ) ) v. ) ) STA TE OF ALASKA, DIVISION OF ) Case No. 3AN-20-07991 CI ELECTIONS, and Gail Fenumiai, Director ) of the Division of Elections, ) ) Defendants. ) ~~~~~~~~~~~~~~-) OPPOSITION TO MOTION FOR TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION The defendants, Gail Fenumiai and the Alaska Division of Elections, (collectively "the State" or "the Division") urge this Court to immediately lift the temporary restraining order issued today and confirm that the Division may mail general election ballots to uniformed and overseas voters on Friday, September 18, so as to comply with the requirements of federal law. The Division further asks this Court to deny Galvin's request for a preliminary injunction ordering the Division to reprint the general election ballots for two reasons: first, the potential harm to the State (and all Alaskans) of such an injunction can hardly be overstated because it threatens to derail the entire general election, possibly disenfranchising many thousands of voters. Second, Galvin has not shown the probability of success on the merits necessary to justify the draconian relief she requests- with its potentially catastrophic consequences for the election. To the contrary, Galvin's legal claims do not even raise "substantial questions" that would justify an injunction ifthe defendants could be adequately protected (which, here, they cannot). Therefore, the State asks the Court to deny Galvin's motion for preliminary injunction and immediately lift the restraining order entered against the State.1 BACKGROUND I. Facts. The plaintiff, Alyse Galvin, is a registered "non-partisan" voter, but ran in the Democratic primary and became the Democratic nominee for Alaska's seat in the United States House of Representatives. [Complaint at~ 2] The Division of Elections finalized the design of the general election ballot, specifying how candidate names and party affiliations would be listed, on June 8, 2020. [See Ex. F - Affidavit of Gail Fenumiai at~ 2] The ballot has two pieces of information about each candidate: (I) their name and (2) either the name of the party that nominated them or the fact that they reached the ballot through a nominating petition. [Ex. A at I] This design is consistent with the Division's longstanding practice of providing only one identifier for candidates on the general election ballot-either the political party that nominated them or the term "unaffiliated" or "non-affiliated," terms that indicate that no party nominated the candidate; neither of which is a voter registration status. [Ex.Fat, 4; Ex. A at 2-7] The design decision was guided by this historical practice, the statutory goals of "fairness, Although the TRO technically enjoins only printing of ballots, the State requests confirmation that it may mail already-printed ballots to uniformed and overseas voters on Friday, September 18. Galvin v. Fenumiai, et al. Case No. 3AN-20-07991 CI Opp. to Mot. for TRO/Prelim. Inj . Page 2 of23 simplicity, and clarity in the voting procedure,"2 and the direction of the Alaska Supreme Court in State v. Alaska Democratic Party that "[o ]n the general election ballot, the State could simply print the nominating party's name next to the candidate's name."3 [Ex.Fat~ 5] The Division of Elections sent the artwork- the ballot design with candidates' names inserted- for the 4 7 versions of the general election ballot to the printer on September 5. This was the earliest day that the Division could send the ballot designs to the printer because it must wait five days after final certification of the primary election result, when the deadline to request a recount had passed (meaning that the names of all the primary winners were known and the ballot could be finalized). [Ex. F at~ 2] The Division posted the sample ballot on its website on September 10. By September 15, 800,000 ballots, including all 47 different versions, had been printed. [Ex . Fat~ 2] The first ballots are scheduled to be mailed out to uniformed and overseas voters on September 18, which is necessary to comply with the federal deadline in the Uniformed and Overseas Citizens Absentee Voting Act, (UOCAVA), 52 U.S.C. § 20302. [Ex. F at~ 9] The Division plans to begin sending absentee ballots out to the more than 70,000 voters who have already requested them beginning in late September; and early voting begins on October 19. [Ex. F at ~ 9] 2 AS 15.15.030. 3 426 P.3d 901, 913 (Alaska 2018). Galvin v. Fenumiai, et al. Case No. 3AN-20-0799 l CI Opp. to Mot. for TRO/Prelim. Inj . Page 3 of23 II. Proceedings. Galvin filed suit on September 15, asserting that the Division's design violates AS 15.15.030(5) and her constitutional right to association and asking this Court for an injunction ordering the State to reprint the general election ballots to include her personal voter registration status in addition to her nominating party. [Complaint at 14- 15] Her complaint also makes serious, unfounded factual allegations about the Division's motives in designing the ballot: she claims that the Division ''omitted" Galvin's voter registration status in order to "inappropriately affect the outcome of the election," and mislead voters by depriving them of "essential information" about how Galvin "self-identifies" as a voter. [Complaint at,, 21, 27] She further claims that the Division purposely sought to avoid a court challenge by making and announcing this purported "eleventh hour decision" only days before the deadline to mail ballots to overseas service personnel and civilian voters. [Complaint at 1119, 21] This Court held an expedited hearing the following morning and then issued a temporary restraining order this morning, September 17, enjoining the State "from printing ballots that do not include candidates' voter registration affiliation." [Order at 4] But as explained above, general election ballots have already been printed. What the State urgently needs to know now is whether this Court will enjoin mailing those ballots to UOCA VA voters on Friday as required by federal law and further require the State to reprint 800,000 general election ballots. Notably, the Division was contacted this morning by attorneys from the United States Department of Justice, who had Galvin v. Fenumiai, et al. Case No. 3AN-20-07991 CI Opp. to Mot. for TRO/Prelim. Inj. Page 4 of23 independently become aware that this litigation jeopardizes the State's ability to comply with UOCAVA and requested "an update if possible." [Ex. C] Because this Court's order requesting additional briefing and setting another hearing for September 18 does not allow sufficient time for the State to obtain review of an adverse decision before the UOCAVA deadline, the State has also petitioned for expedited review of the TRO by the Alaska Supreme Court. ARGUMENT I. Legal standard for a preliminary injunction. Preliminary injunctions are extraordinary remedies that should be infrequently granted. The Alaska Supreme Court has called preliminary injunctions "harsh remedies" that are only used to "preserve the status quo" when necessary to prevent "the irreparable loss of rights before judgment." 4 Under Alaska law, a "[p]laintiff may obtain a preliminary injunction by meeting either the balance of hardships or the probable success on the merits standard."5 The balance of hardships standard applies when the plaintiff establishes three factors: ( 1) the plaintiff is faced with irreparable harm; (2) the opposing party is adequately protected; and (3) the plaintiff raises "serious and substantial questions going to the merits of the case."6 A plaintiff can meet this standard "only where the injury which will 4 Martin v. Coastal Vi/ls. Region Fund, 156 P.3d 1121, 1126 n.4 (Alaska 2007) (quoting United States v. Guess, 390 F.Supp.2d 979, 984 (S.D. Cal. 2005)). 5 Alsworth v. Seybert, 323 P.3d 47, 54 (Alaska 2014). 6 Id. at 54. Galvin v. Fenumiai, et al. Case No. 3AN-20-0799 l CI Opp. to Mot. for TRO/Prelim. Inj. Page 5 of23 result from ... the preliminary injunction can be indemnified by a bond or where it is relatively slight in comparison to the injury which the person seeking the injunction will suffer if the injunction is not granted."7 When the opposing party's interests cannot be adequately protected in the face of an injunction, the plaintiff must satisfy a much higher burden to obtain one by making a "clear showing of probable success on the merits."8 In assessing the relative hardships to each party, the Court is required to "[a]ssume the plaintiff will ultimately prevail when assessing the irreparable harm to the plaintiff absent the injunction," and also, conversely, "[a]ssume the defendant ultimately will prevail when assessing the harm to the defendant from the injunction."9 II. The harm to the State----and all Alaskans-of the requested injunction is so serious-and Galvin's harm so slight-that this Court should deny the motion under any standard. The Division of Elections is responsible for the smooth and efficient conduct of the general election. Galvin vastly understates the harm to the Division-and all Alaskans-of the injunction she requests, given that it has already printed 800,000 ballots and must begin mailing them on Friday, September 18, in order to comply with federal law. But more important than this immediate deadline is the fact that it simply 7 State v. Kluti Kaah Native Vil/. Of Cooper Center, 831P.2d1270, 1273 (Alaska 1992) (quoting State v. United Cook Inlet Drift Ass 'n, 815 P .2d 378, 3 78-79 (Alaska 1991)). 8 See, Misyura v.