Democrat Mary Peltola's campaign sued the State of Alaska on Friday, November 6, asking a judge to force election officials to hand over the running record of which absentee ballots are being accepted and which are being rejected in this week's general election — and why each rejected ballot was turned away — while the count in her close U.S. Senate race against Republican Senator Dan Sullivan is still under way.

Source: Alaska News

The lawsuit, Alaskans for Mary v. Dahlstrom, was filed in Alaska Superior Court in Anchorage, in the state's Third Judicial District. It names Lieutenant Governor Nancy Dahlstrom, whose office oversees elections, Division of Elections Director Carol Beecher and the Division of Elections itself as defendants. The filings are signed by lawyers from the Anchorage firm Reeves Amodio and from the Elias Law Group, whose lawyers on the case are based in Seattle and Washington, D.C.

What the campaign is asking the court to order

Alaskans for Mary, Peltola's campaign committee, wants the absentee register — the running record that shows an accept or reject code for every returned absentee ballot — or any other records that show the names of voters whose ballots were rejected and the reason for each rejection, in electronic form and on a rolling basis as the count continues. The complaint argues the records are public under the Alaska Public Records Act and asks the court to declare that the campaign has a right to them and to order the state to produce them. Alongside the complaint, the campaign filed an emergency motion for a temporary restraining order and asked for expedited consideration, so a judge could order the records released, or let the campaign inspect and copy them, while ballots are still being counted.

The case has been building for nearly two weeks. According to the complaint, the campaign first asked each of the division's regional elections offices on October 27 for the absentee register and got no response. On November 4 its lawyers sent a demand letter acknowledging that state regulations give agencies up to 10 working days to answer a records request, but arguing the rules also require an answer as soon as practicable, and set a deadline of 4 p.m. on November 5. On November 5, the state's attorneys declined to turn over the records immediately, according to the complaint, and the lawsuit followed the next day.

The campaign's argument: the register is a public record

The campaign points to a state regulation that says the absentee register "may be reviewed by interested persons at any time during the election process at the regional elections offices." Observers appointed by candidates and parties can already attend absentee ballot reviews, the campaign says, so it is asking for "nothing more than a written compilation of those public determinations." It argues that a voter's name and ballot status are not among the six pieces of voter information state law makes confidential; its request excluded those six items, which include birth dates, Social Security numbers and signatures, and it did not seek anyone's marked ballot. "Plaintiff cannot ensure that its voters' lawful votes were properly counted without knowing whose absentee ballots were rejected or questioned, and why," the complaint says.

The state's answer: preliminary, confidential — and the voters have not been told yet

The Alaska Department of Law, which represents the lieutenant governor and the Division of Elections, said in a statement on Friday that the campaign is seeking "preliminary absentee ballot information that the Division of Elections has long treated as confidential and that Alaska law does not require the Division to release." The information is preliminary and subject to change and is "not yet available to affected voters," the department said. Authorized observers can view certain daily records during the review process under confidentiality agreements, it said, but the division does not hand out copies or let observers keep them. Releasing the information in the way the lawsuit seeks "would create additional burdens during ballot processing and could delay the timely counting of votes," the department said, adding that it would ask the court to protect the information.

Source: Zark News, citing Reuters and the Alaska Department of Law statement

Why a rejected ballot can stay unknown to its voter for months

Under state law, the Division of Elections has until 60 days after the election is certified to mail voters whose absentee ballots were rejected a notice explaining why their ballot did not count — long after the result is final. State law lists the reasons an absentee ballot can be rejected, including problems with the voter's certificate or its witness signature, a postmark dated after Election Day, and missing identification from some first-time voters. The Legislature passed a bill this year that would have given voters a chance to fix minor errors on their ballot envelopes before their ballots were rejected, but Governor Mike Dunleavy vetoed it, and an attempt to override the veto fell two votes short in May.

What happens next

No hearing date or ruling on the campaign's request for an early order had been reported as of Saturday. The Division of Elections is scheduled to release its next count on Tuesday, November 10. Absentee ballots postmarked by Election Day can still arrive through November 13 from inside the United States and November 18 from overseas, and if no candidate has a majority once all ballots are counted, a ranked-choice tabulation on November 18 would decide the race. The records case is separate from the federal lawsuit the U.S. Department of Justice brought over ballots cast for a different candidate who shares Senator Sullivan's name; a federal judge dismissed that case on November 1, and the Justice Department has appealed.