Attorneys for the state of Alaska and Mary Peltola’s U.S. Senate campaign argued in state Superior Court on Tuesday over the campaign’s bid to receive information about rejected absentee ballots from the Alaska Division of Elections.
The case is the latest wrinkle in Alaska’s high-profile U.S. Senate race.
As of Tuesday, Peltola, a Democrat and former U.S. representative, narrowly led Sen. Dan Sullivan, a Republican and two-term incumbent, by 2,517 first-choice votes, reflecting 1.1% of the vote. More than 220,000 ballots have been counted and a final result may not be known until next week.
The Peltola campaign sued the state Friday, arguing that the Alaska Division of Elections had rejected its requests for records that would show the “accept or reject code” of returned absentee ballots in the election and the identity of voters who cast those ballots. The campaign has said it’s interested in the “accurate and lawful tabulation and certification of votes,” and that no law prevents the data from being disclosed.
Anchorage Superior Court Judge Thomas Matthews said during the hearing that the question involves whether the information should be released under the Alaska Public Records Act.
“This motion is not about who won or lost the election,” he said. “This motion is about access to public records.”
Matthews started the hearing by granting the request by the campaign for Sen. Sullivan to intervene in the case. The judge said the case is moving at “lightning speed” and he intends to issue a written decision before Wednesday afternoon.
The state has argued that it has never provided the information in the manner the Peltola campaign is requesting, and there is no law requiring it to do so.
It has said such a step would violate Alaskans’ constitutional right to privacy and could obstruct efforts to count the votes in a timely manner.
Absentee ballots are rejected for a variety of reasons, including late postmarking and missing signatures.
The state has no ballot curing process for voters to correct minor mistakes, which can lead to absentee ballots not being counted. In the 2024 general election, the division rejected about 1,300 ballots , citing “improper or insufficient witnessing” for many of those ballots.
In this year’s primary election, the absentee ballot disqualification rate was higher in some parts of rural Alaska than the state overall, and dozens of absentee ballots cast in person before the August primary failed to reach the Division of Elections in time to be counted.
In-person absentee voting was offered in the days before the Nov. 3 election in many rural communities, where voters were expected to favor Peltola, who is Yup’ik from Western Alaska.
Abha Khanna, an attorney with the Elias Law Group representing the Peltola campaign, said the campaign is looking to access the identities of voters whose absentee ballots were rejected and why, which Khanna said is already visually available to ballot counting observers for both campaigns. After signing confidentiality agreements, those observers watch absentee ballot review boards across the state to determine if ballots are accepted or rejected in accordance with the law.
“We have no indications that there has been any irregularity in the counting process, anything that’s worth concern,” Khanna said. “This is really just about having documentation of the process we’re already reviewing in real time.”
The campaign wants the data in a centralized way, to create a record of a process that’s already “happening very fast in an entirely decentralized way, in a way that observers aren’t able to actually communicate back to the campaign,” she said.
The Peltola campaign wants the information before the race’s certification, which is currently scheduled for Nov. 25, Khanna said.
Khanna said she was surprised to see that the Sullivan campaign sought to intervene on the side of the state.
The Peltola campaign is not “seeking any kind of unequal advantage,” and believes the Sullivan campaign should also receive the same information if it wants, she said.
“In their papers, they assert a reciprocal interest in the accurate tabulation of the vote and a reciprocal right to this information,” Khanna said. “I couldn’t agree more.”
State of Alaska attorney Margaret Paton-Walsh argued that the information sought by the Peltola campaign is not a public record.
She said the elections division has maintained a policy of letting voters themselves know after the election if their ballot was rejected and why, so they don’t make the same mistake with future votes.
But disclosing all the voters’ identities and the reason for their rejected ballots to the Peltola campaign would violate a voter’s right to privacy, spelled out in Alaska’s constitution, Paton-Walsh said.
Disclosing that information to the campaign would also mean the information is available for full public disclosure, which is different from letting observers who have signed confidentiality agreements view such information as decisions on whether to reject ballots are made, she said.
The public disclosure of that information could cause the voter embarrassment or anxiety, and the constitutional right to privacy needs to be weighed in this case, she said.
“I think that voters have a privacy interest in that because people who want to vote absentee presumably don’t want to mess it up and don’t want to be publicly exposed as having messed that up,” Paton-Walsh said. “So I think that is private information, your honor, and we’ve never disclosed it before.”
Khanna argued that sensitive privacy issues that are constitutionally defensible involve more extreme situations, such as a “sex offender background, or a person’s medical condition that requires use of medical marijuana.”
“The idea that someone forgot to sign their absentee ballot, I just don’t think measures up in that constitutional analysis,” Khanna said.
Khanna said the state is not seeking voter addresses, and she said those could presumably be removed from the state’s voter registration database, known as VREMS, with “one click of the button“ while still providing the voter’s identification and the accept or reject codes.
Paton-Walsh said the database is “extremely clunky” and is not an “Excel spreadsheet.”
Instead, removing the addresses would require the state to contract with the outside vendor familiar with the technology to create a different version of the report.
“And that is something that the Public Records Act expressly does not require us to do, much less at the busiest moment” for the agency right after an election, she said.
Khanna said the Peltola campaign would be “willing to work with division as to the when and the where and the how to access the requested data.”