A lawsuit over the state’s decision to automatically send absentee ballot applications only to those 65 and older is headed to federal court. The lawsuit alleges that the action unconstitutionally discriminates against younger voters.
Anchorage lawyer Scott Kendall filed the lawsuit on behalf of several plaintiffs.
“Our lawsuit’s very simple: You want to help people to vote absentee? We applaud it. Help all eligible vote absentee in the same way,” he said. “And don’t discriminate in an unconstitutional fashion.”
Lt. Gov. Kevin Meyer announced in June that the state would be sending requests to vote by mail to all Alaskans 65 and older. He cited the increased risk that older people face for complications from COVID-19.
The lawsuit was filed by the Disability Law Center of Alaska, Native Peoples Action Community Fund, Alaska Public Interest Research Group and two residents.
The lawsuit said limiting who automatically receives the applications violates the 26th Amendment to the U.S. Constitution, which says the rights of citizens 18 and older to vote shall not be denied or abridged on account of age.
And the lawsuit said that word “abridged” is key — and that it means some voters can’t have a better opportunity to vote than others.
Kendall said the age cutoff is arbitrary.
“They’ve said, ‘Everyone over age 65, we’re going to cut three steps out of the process and make it really easy for you to vote. And everyone else, uh, you’re kind of on your own,’” Kendall said.
Cori Mills, an assistant attorney general, said the state will reply to the lawsuit in court. But she laid out the state’s position on how it’s handling the election.
“As a general matter, we believe no one is being limited in their right to exercise their vote this election season,” Mills said. “There are a myriad of ways to vote: absentee, in person, as well as early voting. And all of those apply equally to all registered voters in Alaska.”
The lawsuit raises issues beyond age. It notes that Alaskans with disabilities are also at increased risk of COVID-19 complications, with more recent federal guidelines noting the risk for younger people with other medical complications.
Mark Regan, the legal director of the Disability Law Center, said Meyer should have sent the letter with the application to all Alaskans.
“It would make sense to send that letter to people beyond the over 65 age group,” Regan said. “And it would make sense to people with disabilities, it would make sense to send it to people in rural areas. It would make sense to send it to a lot of people. And the cleanest and simplest thing to do would be send that letter to everybody.”
Camille Nelson, a 24-year-old Kotzebue resident, is one of the plaintiffs. She said residents in villages in the Northwest Arctic Borough are more vulnerable to COVID-19 because of the limited local hospital capacity.
“A lot of the places here in Alaska are very vulnerable,” she said. “So I think putting more precautions into place would help.”
Those precautions include making it easier to vote by mail. She’s concerned that young people could spread COVID-19 in multigenerational households if they go to vote in person.
“Many people live with their elders and they would be exposed as well if an outbreak were to happen,” she said.
Alaska Division of Elections Director Gail Fenumiai referred questions about the lawsuit to the Department of Law. But she said the state is offering the same options to voters as in previous years, including being able to vote early beginning 15 days before the Aug. 18 primary at more than 150 locations. The division is planning to provide personal protective equipment to both poll workers and voters on Election Day.
And Fenumiai said the state has a new online application to request an absentee ballot.
“It’s fast. It’s easy. It doesn’t require paper. … It doesn’t require postage,” she said. “It saves the voter time, and it saves the division time in processing as well.”
But the lawsuit has raised concerns with the online application — not everyone knows about it or has reliable internet access. And it relies on identification issued by the Division of Motor Vehicles, which not everyone has.
The state has received 25,751 absentee ballot requests by Wednesday afternoon, more than twice as many as were requested in total in recent primaries. And there’s still time to apply. Applications must be received at least 10 days before the election.
The lawsuit was filed in Anchorage Superior Court on Friday. On Monday, the case was moved to federal court at the request of Meyer and the Division of Elections. Kendall, the lawyer for the plaintiffs, said he’ll ask for the U.S. District Court to quickly issue an order requiring the division to mail out the applications to all registered voters.