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Intervenor Alaskans for Better Elections, Inc Scott M. Kendall Alaska Bar No. 0405019 J ahna M. Lindemuth Alaska Bar No. 9711068 Samuel G. Gottstein Alaska Bar No. 1511099 FILED in the Tri~! Courts Holmes Weddle & Barcott, P.C. State of Alaska Third ;.)1stnct 701 West 8th Avenue, Ste. 700 Anchorage, AK 99501 .APR U 2 202"1 Phone: 907.274.0666 Clerk of the Trial courts Fax: 907.277.4657 By______ Deputy Attorneys for Intervenor Alaskans for Better Elections, Inc. IN THE SUPERJOR COURT FOR THE STATE OF ALASKA THIRD JUDICIAL DISTRICT AT ANCHORAGE SCOTT A. KOHLHAAS, THE ALASKAN INDEPENDENCE PARTY, ROBERT M. BIRD, AND KENNETH P. JACOBUS, Plaintiffs, V. STATE OF ALASKA; STATE OF ALASKA: DIVISION OF ELECTIONS; Case No. 3AN-20-09532 CI LIEUTENANT GOVERNOR KEVIN MEYER, in his official capacity as Supervisor of Elections; and GAIL FENUMIAI, in her official capacity of Director of the Division of Elections Defendants. ALASKANS FOR BETTER ELECTIONS, INC. Intervenor. 61NTERVENOR ALASKANS FOR BETTER ELECTIONS' MOTION FOR SUMMARY JUDGMENT Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 1 of 39 I. INTRODUCTION After voters approved an election reform initiative in November 2020, Plaintiffs Scott A. Kohlhaas, the Alaskan Independence Party, Robert M. Bird, and Kenneth P. Jacobus ( collectively "Plaintiffs") filed this facial challenge seeking to invalidate the entirety of the popularly-enacted law. 1 Through this law, the public adopted comprehensive reforms to give voters and individual candidates more choices in elections, and to ensure that the candidates with the most support - regardless of party affiliation ( or lack thereof) - would represent Alaskans. Contrary to Plaintiffs' assertions, neither the United States nor Alaska Constitution gives political parties the power to compel the State of Alaska to run primary elections for the purpose of selecting their parties' nominees. Moreover, under Alaska's new primary system, political parties will remain free to conduct their own nomination processes and other internal affairs however they see fit. The United States and Alaska Constitutions do not prohibit the type of nonpartisan primary chosen by the people of Alaska. Nor do they prohibit voters from expressing more precise preferences through ranked-choice voting in general elections. And Plaintiffs are wrong about how to apply a severability analysis. Because voters enacted a constitutionally-sound election reform initiative, this court should enter summary Although Plaintiffs confusingly challenge only portions of the initiative, they style their complaint as a facial challenge to the entire measure and specifically request its invalidation as relief. Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 2 of39 judgment against Plaintiffs and in favor of Defendant State of Alaska and Intervenor Alaskans for Better Elections, Inc. on all claims. II. FACTUAL BACKGROUND A. Alaskans For Better Elections Drafts And Submits A Comprehensive Election Reform Initiative. A nonpartisan group of Alaskans formed Alaskans for Better Elections, Inc. ("ABE") in 2019 to file a comprehensive election reform ballot initiative. 2 ABE filed its initiative on July 3, 2019, which was later designated "19AKBE" by the State. 3 Although 19AKBE proposed several revisions to Alaska's election statutes, 4 the State and ABE "agree[ d] that the initiative would make three substantive changes to Alaska election law: (1) replacing the party primary system with [atop four] ... nonpartisan primary; (2) establishing ranked-choice voting [("RCV")] in the general election; and (3) mandating new disclosure and disclaimer requirements to existing campaign finance laws." 5 Each of these three "logically related" election refonns sought to increase "transparency, participation, access, and choice" in Alaska's statewide election 2 See Meyer v. Alaskans for Better Elections, 465 P.3d 477,490 (Alaska 2020). 3 See id. 4 See generally Alaska's Better Elections Initiative [hereinafter 19AKBE] (Appendix A). 5 Meyer, 465 P.3d at 498; see also id. (characterizing 19AKBE's initiative title as being "extremely detailed"). Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 3 of 39 process.6 The first of 19AKBE's proposed election refonns - a top four nonpartisan primary - allows all Alaskans to vote on the same primary ballot regardless of a voter's affiliation with a political party. 7 The new system differs from Alaska's previous "semi-closed" primary election system where voters had to choose between one of two ballots to vote on, and one of those ballots was available only to registered Republican, nonpartisan, or undeclared voters. 8 Neither of the ballots included all of the candidates. 19AKBE's top four nonpartisan primary instead places all candidates on a single ballot, giving all voters the option of choosing their preferred candidate in each race regardless of the candidate's or the voter's party affiliations. 9 From the voters' perspective, this means they will have a range of choices that they never had under Alaska's partisan two-ballot primary regime: they can now vote for a Republican in one race, and for a Democrat ( or other party candidate) in another race. Rather than be artificially hindered in their choices under the two-ballot system, primary voters can now just choose their favorite candidate in every race. When those primary votes are tabulated, the four candidates receiving the greatest number of votes in each race, without regard to party affiliation, then 6 Id. at 498-99; see also 19AKBE at 1-2 (Appendix A). 7 AS 15.15.025; AS 15.25.060; see 19AKBE at 8 (Appendix A). 8 See State v. Alaska Democratic Party, 426 P.3d 901, 904-06 (Alaska 2018). 9 AS 15.15.025; see 19AKBE at 8 (Appendix A). Intervenor Alaskans for Better Elections, lnc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 4 of39 proceed to the general election ballot. 10 Ancillary related changes include: (1) removing barriers for third-party candidates to appear on the primary ballot; 11 (2) allowing primary voters to express a preference on a joint ticket for governor and lieutenant governor; 12 and (3) adding clear disclaimers explaining that a candidate's expressed party affiliation does not mean the party has endorsed that candidate. 13 The second of 19AKBE's proposed election reforms adopts RCV for Alaska's general elections. 14 Alaska's prior system allowed voters to express a single candidate preference in each general election race, and whichever candidate obtained the greatest number of votes was declared the winner. That system - often termed "first past the post" or plurality voting - can result in candidates winning with far less than a majority, and sometimes only a small plurality of the vote. Under that system, a candidate could win even though he or she is actually opposed by the 10 AS 15.25.010; AS 15.25.100; see 19AKBE at 14-16 (Appendix A). 11 See 19AKBE at 18-19 (removing the requirement that a minority-party candidate must first obtain signatures of at least 1% of qualified voters based on the number of prior general election votes) (Appendix A); see also Alaska Democratic Party, 426 P.3d at 904-05 ("A candidate not representing a political party may appear on the general election ballot by submitting a petition with a sufficient number of qualified voters' signatures." (citing former AS 15.25.140; fonner AS 15.25.190; former AS 15.25.160; former AS 15.25.170)). 12 AS 15.15.030(5); AS 15.25.030(a)(16)-(17); see 19AKBE at 8, 15 (Appendix A). 13 AS 15.15.030(14)-(15); AS 15.25.010; AS 15.58.020(a)(13); AS 15.58.020(c); see 19AKBE at 8-9, 14, 22-24 (Appendix A). 14 See Meyer, 465 P.3d at 498; see also AS 15.15.350(c) ("All general elections shall be conducted by ranked-choice voting."). Intervenor Alaskans for Better Elections, Inc.'s Motion for Summary Judgment Scott A. Kohlhaas, et al. v. State of Alaska, et. al., Case No. 3AN-20-09532 CI Page 5 of39 majority ofvoters. 15 In contrast, 19AKBE's RCV system gives voters the opportunity to rank candidates in order of choice from one to four. 16 If a candidate receives a majority from the first-choice votes (fifty percent plus one vote), then that candidate wins immediately, just as in the prior system. 17 But ifno candidate receives a majority of first choices, the candidate with the fewest first choice votes is eliminated, and voters who ranked that eliminated candidate first have their vote assigned to their second choice candidate. 18 This process continues until a candidate is elected with a majority of voters' support. 19 This system gives general election voters greater choice and ensures that winning candidates receive a majority of the tabulated votes. RCV also empowers general election voters to express themselves 15 See 2020 General Election, Election Summary Report, Official Results, https://www.elections.alaska.gov/results/20GENR/data/sovc/ElectionSummaryRepor tRPT24.pdf (published Nov. 30, 2020) [hereinafter 2020 General Election Results] (showing winning candidates without majority support in Senate District N, and House Districts 23, 27, and 28). 16 AS 15.15.350; AS 15.15.360; see 19AKBE at 9-10 (Appendix A). In other words, RCV simply asks voters to count to four. See Rob Richie et al., Instant Runoffs: A Cheaper, Fairer, Better Way to Conduct Elections, 89.1 NAT'L CIVIC REV.
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