Alaska prosecutors are dropping voter misconduct cases against residents born in American Samoa after an appeals court ruled that the state must prove they acted with a “consciousness of wrongdoing” when they wrongly identified themselves as US citizens on voter forms.
The decision follows the dismissal of felony charges against Tupe Smith, a resident of Whittier, Alaska, who said election officials told her to select the “US citizen” option because the forms did not include a category for US nationals.
Acting Alaska attorney general Cori Mills said prosecutors had reviewed the Court of Appeals ruling and concluded they could not prove the remaining cases beyond reasonable doubt.
“We respect the role of the courts in interpreting Alaska law and will faithfully execute our duty to apply the law and carefully evaluate our prosecutorial decisions,” Ms Mills said.
Eleven people from Whittier, a small community about 50 miles south-east of Anchorage, had been charged with falsely claiming US citizenship when registering to vote or attempting to cast ballots. Smith’s husband, Michael Pese, was among those prosecuted.
Appeals court ruling
In a unanimous ruling, the three-judge appeals panel said Alaska’s first-degree voter misconduct law required more than proof that a statement on a registration form was false. Prosecutors had to show that the defendant deliberately made the statement while aware it was wrongful.
The court also found problems with the way a state trooper questioned Smith and with the evidence presented to the grand jury that indicted her.
Smith’s native language is not English. During an interview, a trooper asked her a lengthy, multi-part question suggesting that she knew she was ineligible to vote but wanted to take part in a school-board election. After she did not immediately respond, another officer repeated that the question was being put to her. Smith then answered “Yes”.
The appeals court said the exchange had been misrepresented to the grand jury and that jurors had been given an incorrect definition of the legal meaning of “intentionally”. It concluded that they might not have indicted Smith had they received a fuller account of the interview and the correct legal guidance.
Smith was arrested after winning election to a regional school board in 2023. She has said she normally identified herself as a US national on official paperwork, but was advised to select the citizenship option on voter registration documents.
Prosecutors had argued that she knowingly made a false claim, pointing to warnings on forms completed in 2020 and 2022 stating that non-citizens were not eligible to vote.
Whitney Brown, Smith’s lawyer, said the dismissal would allow the Whittier community “to put this ordeal behind them and begin moving forward”. She said the ruling provided an important safeguard against people facing felony charges over an honest mistake.
“The state must prove a person acted with a consciousness of wrongdoing,” Ms Brown said. “That distinction makes a world of difference to Ms Smith and helps ensure that Alaska’s voter-misconduct statute is applied as the legislature intended.”
Neil Weare, co-director of the Right to Democracy Project and part of the legal team representing Smith and Pese, said the decision raised questions about why the prosecutions had been brought.
American Samoa is the only US territory where people are not automatically granted citizenship at birth. Those born there are generally US nationals: they can obtain US passports and serve in the military, but are barred from voting in most US elections and cannot hold public office in the United States without becoming citizens through naturalisation.
