With the first ballots sent and preparations for the Nov. 4 general election in full swing, a district chairman in the Alaska Republican Party filed a lawsuit in state Superior Court in Anchorage challenging the emergency regulation that permitted the "unity" ticket of Bill Walker and Byron Mallott.
The Sept. 2 regulation, promulgated by Lt. Gov. Mead Treadwell and the Division of Elections, should be nullified, the suit claims, because no emergency existed and the rights of primary-election voters have been violated.
Political opportunism caused Walker to drop his Republican Party registration and become "undeclared" at the last minute, then join forces with former Democratic gubernatorial candidate Byron Mallott in a "nonparty" ticket, says the lawsuit, brought by attorney Ken Jacobus on behalf of plaintiff Steve Strait, Alaska Republican Party chairman of District 21 in Anchorage.
"Procrastination, political strategy and political expediency has nothing to do with preserving public peace, health, safety or general welfare and is not an emergency" under state law, the lawsuit says.
The suit names as defendants Treadwell and Gail Fenumiai, director of the Division of Elections.
Fenumiai said on Wednesday afternoon the first ballots for the general election had been mailed out earlier in the day, with more than 2,300 of them headed to overseas citizens and military voters.
"Because some ballots were mailed today, voting has essentially started in the general election for a small group of voters at this time," she said.
Other key steps are in the works, too. More than half the state's order of 600,000 ballots have been printed at a shop in Homer. The entire printing job will cost the state an estimated $300,000, she said.
Walker said Strait and Jacobus are the ones engaging in political gamesmanship and that the lawsuit has no merit. He said it stems from two recent polls showing Walker and Mallott in the lead. "If it had showed we were 15 points behind, this probably would not have been filed," he said.
Libby Bakalar, a state assistant attorney general assigned to the case, said an expedited hearing is expected but that a schedule had not yet been set. The case will be taken up by Judge John Suddock, and the state will defend the regulation in court, she said. "We are confident of our legal position and believe basic principles of ballot access favor the adoption of the regulation," she said.
Bakalar said precedent for the decision stems from a 2000 Alaska Supreme Court ruling in O'Callaghan v. State of Alaska that said the orderly administration of elections is a situation justifying an emergency regulation.
The ballot printing needs to happen on a specific schedule, she said.
The O'Callaghan ruling was also cited as precedent in a 2006 attorney general's opinion addressing gubernatorial candidate Andrew Halcro's substitution of a running mate. In that opinion, assistant attorney general Michael Barnhill wrote that "no-party gubernatorial candidates are free to choose any running mate they wish, regardless of political affiliation or lack thereof, whether it be at the initial petition stage or later when the original running mate may withdraw and need to be replaced."
The lawsuit has no connection to the Alaska Republican Party and is not driven by politics, said Strait. The ultimate hope is that voters will have three choices running for governor as was expected when voters went to the primary polls Aug. 19, including a Democrat and a Republican.
"I'm filing as a longtime Alaskan very concerned about what just happened here," Strait said, adding that the integrity of the election process is under threat.
Strait said he did not file until Wednesday because extensive research was required, something he says Treadwell apparently did not do.
"It appears the lieutenant governor took less than eight hours to make his decision, and that's why we're here today -- because he didn't ponder it, look at the statutes, and consider it fully, it appears," Strait said.
Reached in the lieutenant governor's office, Cameron Eggers said the office had no comment and that Treadwell was in Ketchikan preparing for a public meeting to explain ballot initiatives on the general election ballot.
Jacobus was a lawyer for the Alaska Republican Party about a decade ago, but he said he is no longer associated with the party. "It won't matter who wins primary elections if we don't prevail," said Jacobus. Groups with the most money can hand-pick nominees, said Jacobus.
The men appeared at a hastily assembled press conference to announce the lawsuit on Wednesday afternoon, along with Frank McQueary, who said he was supporting Strait, including by helping to pay Jacobus' attorney fees.
The issue is about policy, not politics, McQueary said. "We're saying the lieutenant governor made a bad decision and is in the process of implementing bad law which will damage both Republicans and Democrats now and in the future," he said. Democrats are disenfranchised this time, he said, but next time it could be Republicans.
McQueary said he had met with Treadwell about the issue. "Basically, the response was this probably does need to be litigated," he said.
The lawsuit spells out the steps leading to the unusual ticket, noting that it came after the primary election and required the backing out of Walker running mate Craig Fleener and Mallott running mate Hollis French. It says the marriage was driven by pressure from the AFL-CIO, Alaska's umbrella labor organization, which had said it would not endorse either Mallott or Walker because they would lose to Parnell in a three-way race.
"The ticket swap" was "nothing more than a political strategy put into play by the AFL-CIO, so as to garner a better chance of defeating Governor Parnell" in the Nov. 4 general election, the lawsuit says.
The decision could have been made months earlier, rather than shortly before changes could be made to the Nov. 4 ballot, Strait said.
Laying out six counts, the lawsuit notes the due-process rights of Alaskans has been violated, and that nonparty candidates must gather 1 percent of voters' signatures from the previous general election to get their names on the ballot, something Mallott did not do.
"What has taken place here is not logical, and makes a mockery of the election process and the voters' choices," in the primary election, the suit claims.