The Alaska Supreme Court ruled on Friday that the Lake and Peninsula Borough (L&PB) violated the voting rights of five citizens over two separate elections.
In 2011, the Borough clerk challenged the ballots of Bob Gillam, John Gillam, John Holman, Daniel Oberlatz, and Raymond “Sonny” Peterson because their ballots were mailed to and returned from addresses outside the borough. The Borough Canvassing Committee upheld the challenges based on testimony and public residence records. The Borough Assembly denied their appeals.
Oberlatz and Bob Gillam had their ballots challenged in 2010 under similar circumstances. Only Oberlatz appealed that decision. His 2010 appeal was also denied by the assembly.
All five voters have multiple residences for various reasons.
Bob Gillam and Oberlatz alleged in court that the denial of their borough residency was in retaliation for their efforts to stop the Pebble Mine. Gillam, who owns a fishing lodge on Lake Clark, has raised millions of dollars trying to protect the Bristol Bay salmon he says will be harmed living downstream from a copper mine. He is one of the top three contributors to Bristol Bay Forever, the group responsible for Ballot Measure Four in the upcoming November election.
Oberlatz is the vice president of the Renewable Resources Foundation, which opposes Pebble Mine, as well as the owner of Alaska Alpine Adventures. His company offers a $100 discount to clients who wish to contribute to stop Pebble Mine.
John Holman is also a board member of the Renewable Resources Foundation, while Sonny Petersen, another vocal opponent of Pebble, is the owner of Katmailand lodges and founder of Katmai Air taxi service.
Bob Gillam and Oberlatz brought suit in superior court against the borough in 2010. The court found in favor of the borough in that case, but later granted a new trial after it deemed the borough’s voter appeal process unconstitutional. (The members of the Canvassing Committee were also the members of the assembly to whom a voter would appeal the committee’s decision, a violation of due process.)
The 2010 Gillam/Oberlatz case was consolidated with a 2011 suit involving all five voters. Among the superior court’s findings in that case were that all the voters had been eligible to vote in the elections in which they tried to vote, the borough appeal process was unconstitutional, and that a borough residency requirement passed after the 2010 election was invalid.
L&PB appealed the residency determinations of the superior court, while the voters appealed the superior court’s decision not to award them full attorney fees. Alaska law provides that a claimant shall be awarded “full reasonable attorney fees and costs” when that claimant prevails in asserting a “right under the United States Constitution or the Constitution of the State of Alaska.”
The two appeals were consolidated by the Court as Lake and Peninsula Borough v Oberlatz. Justice Daniel Winfree wrote the opinion for the Court. Chief Justice Dana Fabe and Justice Peter Maasen did not participate.
The superior court ruling held that it is generally not for governments to determine what a voter calls “home.” Its ruling cited Alaska statute, which stipulates, “The address of a voter as it appears on the official voter registration record is presumptive evidence of the person’s voting residence.” If a voter has multiple residences that have evidence of habitation, the court said, “it is not the role of the courts to force the voter to vote in a location which is not the location the voter prefers. “The Supreme Court did not express opinion on these assertions.
The borough argued that the superior court did not adequately consider objective evidence of residency and that the voters only returned to the borough to work or vacation. In a sharp rebuke, the Court wrote,
Business ownership in a particular location does not disqualify a person from claiming that location as a home. And the acts of working and resting seem to constitute the entirety, or at least the majority, of residing.” It is unclear what other acts the Borough believes are necessary for residing in a location.
It is quite common for voters to have multiple residences, even in other states, particularly voters who like to flee cold climates during the winter months. The keys are that they not be registered in more than one place and that they register at least 30 days prior to the election.
John Gillam’s situation is also not uncommon. While Gillam currently lives in Switzerland for the purposes of work, he maintains a room in his family’s borough home. This is akin to college students who maintain their permanent residence of record at their parents’ home. As the Court noted, this is a testament of intent to return.
Where the borough pointed to Department of Motor Vehicle records, the Court recognized that “vehicle registration is not dispositive of residency — the listed address often is chosen for convenience in Alaska, where receiving mail in rural locations can be difficult.”
Indeed, many Alaskans simply list a post office box on their driver licenses.
The Court disagreed that the voters were not necessarily entitled to full attorney fees, finding that their claims were constitutional. While the superior court said the case was confined to statute, the Supreme Court wrote,
Article V, section 1 of the Alaska Constitution grants the right to “vote in any state or local election” to every citizen of the United States over the age of 18 “who meets registration residency requirements… prescribed by law.” Anyone meeting those requirements has a constitutional right to vote. Statutory voter registration requirements do not create that right, they only limit it; the Alaska Constitution creates the right.
This ruling could prove costly to the L&PB. A lower court will now have to determine which of the voters’ costs and fees were specific to their constitutional claims dating back to 2010. In a footnote, the Court pointed out that courts can abate fee awards if “the full imposition of the award would inflict a substantial and undue hardship… upon the taxpaying constituents of [a] public entity.” The borough will almost certainly make that case, as well as suggesting that the voters primary claims were financial rather than constitutional.
If the lower court does not accept the L&PB’s argument, borough taxpayers may have to pony up over $100,000, a high price for trying to nullify five votes.