Alaska Supreme Court upholds elections ballot measure, state will use ranked-choice voting

The Alaska Supreme Court on Wednesday upheld the constitutionality of a new voter-approved elections system, ending the last legal challenge against it.

Alaska will become the second state to use ranked-choice voting, which asks voters to pick multiple candidates in order of preference. Alaska will use it in state and federal general elections but not in municipal races or the statewide primary.

Gail Fenumiai, director of the Alaska Division of Elections, said the division has been preparing to implement the new system since it became law, and Wednesday’s order doesn’t change anything.

In their order, issued Wednesday, the Supreme Court’s five justices say only that they are upholding lower-court rulings in favor of the new system, which was approved by voters in a 2020 ballot measure. The justices said they will issue a longer written explanation for their decision at a later date.

In addition to ranked-choice voting in the November general election, the new ballot measure creates an open August primary election. All candidates for a particular office will be placed on a single ballot. Voters pick one candidate, and the top four vote-getters advance. The measure’s third component, requiring additional disclosure for certain third-party campaign contributions, is already in effect.

The court’s order came one day after justices heard oral arguments in an Anchorage courtroom.

“I think that it’s a very clear and resounding win. And I’m very grateful to how quickly they reached it,” said Scott Kendall, the attorney representing Alaskans for Better Elections, which campaigned in favor of the 2020 ballot measure. Kendall was the measure’s primary author.

Attorney Ken Jacobus represented the Alaskan Independence Party, which opposed the new elections system and funded a lawsuit against it.

“I think the court’s decision is incorrect, but the court decided, so we’re going to have to live with that,” he said.

Bob Bird, chairman of the independence party, said he wasn’t surprised by the decision but is disappointed and said he believes it will create a political duopoly with minor parties crowded out of the top-four primary by Republican and Democratic candidates.

“I think it means an end to anything other than Republicans and Democrats,” he said.

In Alaska’s ranked-choice election, voters will be asked to rank four candidates — and a write-in option — in order of preference. If one of the candidates is the first choice of a majority of voters, that candidate wins.

If no candidate has a majority, the candidate with the fewest first-preference votes is eliminated. All voters who selected that candidate will have their votes to go their second preference, and the votes are re-tallied. If someone has a majority of the votes, they win. If not, the process repeats until someone has a majority or until there are only two candidates left, and the person with the most votes wins.

The state of Alaska was the primary defendant in the case. Aaron Sadler, a special assistant to Attorney General Treg Taylor, said the court’s quick decision provides clarity, and the state looks forward to reviewing the full opinion.

The Alaska Libertarian Party has previously said it supports the new system. The chair of the Alaska Republican Party did not return a phone call seeking comment.

Lindsay Kavanaugh, executive director of the Alaska Democratic Party, said she believes the court came to the right decision, and the party has received positive feedback from voters in its 2020 ranked-choice, party-run presidential primary.

“Alaskans saw the need and spoke out strongly across the state for these changes, and we’re pleased that the will of the people has been respected. That said, we also believe that a robust voter education program is going to be necessary to ensure that the will of the people is reflected in their votes,” she said.

Wednesday’s decision came 15 months after Alaska voters narrowly approved Ballot Measure 2, which contained the new system.

Much of the advertising and public attention before the vote focused on disclosure requirements for “dark money.” The measure was supported by a $6.8 million advertising campaign funded mostly by Outside interests. The leading opposition group spent less than $600,000.

The final vote was decided by about 1 percentage point out of 361,400 votes cast statewide, and a hand-count recount confirmed the result.

Jacobus filed suit on behalf of himself, the AIP and a libertarian candidate for office less than a month later, arguing in court filings that there was no constitutional way for the state to implement the new voting system.

The state of Alaska was supported in defense by Alaskans for Better Elections.

An Anchorage Superior Court judge ruled in favor of the state in July, and Jacobus appealed to the Alaska Supreme Court, where other political figures became involved in the case.

Former Alaska Lt. Gov. Mead Treadwell and former state Rep. Dick Randolph each submitted documents in support of Jacobus.

Vic Fischer, the last living signatory of the Alaska Constitution, submitted documents in support of the state, as did Outside voting-reform organizations.

Neither the Alaska Democratic Party nor the Alaska Republican Party became directly involved in the lawsuit.

Jacobus, formerly a prominent figure in the state’s Republican establishment, said he’s disappointed by that fact.

“I’m not happy with the Republican Party over this because they’re the ones that are going to be hurt the most,” he said, referring to the open primary.

Wednesday’s ruling ends the last pre-election legal challenge against the state’s new voting system, but a losing candidate in this fall’s election could challenge the way the state implemented it. Such a challenge took place in Maine after it began using ranked-choice voting, and Kendall said he thinks it’s “very likely” here.

Jacobus said he thinks it’s possible, but he’s not planning one.

Correction: Earlier versions of this article misidentified the attorney representing the plaintiffs. He is Ken Jacobus, not Scott Jacobus. The article has been changed.