'

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I

IN TIIE SUPERIOR COURT FOR THE STATE OF ALASKA ... I J PH~ ;
THIRD JUDICIAL DISTRICT AT ANCHORAGE .

'

ALYSE S. GAL VIN,
Plaintiff,
v.

GAIL FENUMIAJ, in her official capacity as
DIRECTOR OF THE DIVISION OF
ELECTIONS; and ST ATE OF ALASKA,
DIVISION OF ELECTIONS,
Defendants,

Case No. 3AN-20-"99or >C l

Defendants.
VERIFIED COMPLAINT SEEKING DECLARATORY JUDGMENT AND
PRELIMINARY INJUNCTION PURSUANT TO ALASKA
RULE OF CIVIL PROCEDURE 65
Plaintiff ALYSE S. GALVIN, by her undersigned counsel, states:

PARTIES
1.

This is an action for declaratory and injunctive relief against Gail Fenumiai,

in her official capacity as the Director of the Division of Elections, and the State of Alaska,
Division of Elections.
2.

Alyse S. Galvin, who is registered as a Non-Partisan voter, is the Democratic

Nominee to represent Alaska in the United States Ilouse of Representatives. While Galvin

COM PLAINT SEEKING DECLARATORY JUDGMENT AND PRELIMINARY
I JUNCTION PURSUANT TO ALASKA RULE OF CIVIL PROCEDURE 65
Galvin v. Fenumiai, et al.
Case No. 3AN-20CL
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2'i

 won the Alaska Democratic Primary, she does not self-identify as a Democrat and that she
is Non-Partisan is a critical aspect of her identity and her political platform.
3.

Gail Fenumiai is the Director of the Alaska Division of Elections, and she is

sued in her official capacity only. Under AS 15.15.010, Fenumiai is the chief elections
ofiicial for the State and is responsible for the "general administrative supervision over
the conduct of state elections, and may adopt regulations under AS 44.62 (Admini strative
Procedure Act) necessary for the administration of state elections." She is also

responsible for the printing and preparation of ballots. See AS 15.1 5.035.
4.

The State of Alaska, Divis ion of Elections is an executive branch agency

responsible for the administration of Alaska's elections and enforcement of Alaska's
election laws.

JURISDICTION AND VENUE

5.

This Court has jurisdi ction to award declaratory and injunctive relief under

AS 22.10.020 (a, b, c & g).
6.

Venue is proper in this Court under Alaska Rule of Civil Procedure 3 and

J\S 22.10.030.

COMPLAINT SEEKING DECLARATORY JUDGMENT AND PRELIMINARY
TNJUNCTION PURSUANT TO ALASKA RULE OF CIVIL PROCEDURE 65
Galvin v. Fenumiai, et al.
Case No. 3AN-20CI
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SINCE 2018, CANDIDATE VOTER AFFILIATION HAS BEEN A FEATURE OF
THE ALASKA BALLOT

7.

In 2018, the Alaska Supreme Court he ld that the Division of Electi ons

violated Article 1, Section 5 of the Alaska Constitution when it prohibited the Alaska
Democratic Paiiy from allowing independ ent voter candidates to participate in
Democratic primary elections. See generally State v. Alaska Democratic Party, 426 P.3 d
90 I (Alaska 201 8).

8.

Since then, independent, non-partisan, and unaffiliated voter ca ndidates

have been permitted to participate in Democratic primary elections, and Fenumiai and
the Division of Elections have consistently indicated each candidate's voter affiliati on on
the ballot, parenthetically after her name.
9.

This approach was consistent with and required by statute. Namely, AS

15. 15.0 10(5) requires that "[t]he names of the candidates and their party designations
shall be placed in separate sections on the state general election ballot under the office
des ignation to which they were nominated,'' and that ·'[tlhe party affiliation. if any, shall
be designated after the name of the candidate ..,
l 0.

Thus, in prior elections, Fenumiai and the Division of Elections prepared

and printed ballots consistent with AS 15.15.0 I 0(5) to indicate the party affil iation (if

COMPLAfNT SEEKING DECLARATORY JUDGMENT AND PRELIMfNARY
INJUNCTION PURSUANT TO ALASKA RULE or CIVIL PROCEDURE 65
Galvin v. Fenumiai, et al.
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any) of the candidate and the party by which the candidate was nominated, as shown in
the excerpt from the 2018 federal sample ballot below:
Unltod StlllOS
Repl'tsentatlve
(11111•
,

QGat.o.n,

AJ~e

s. (UJ

'°"

cne)

...._.10.mocrauc
Pllly Nctnll\M
Aluta~bkan

Parry Nominee

• O

11.

This was how Defendants have interpreted and applied AS 15.15.010(5) in

primary elections as well as in general elections, as shown in the excerpt below from the
20 I 8 Pri mary sample ballot:

:J
.,

United St~tes

Repre&entatlve
(YOtef0tcne)

ol

QCUMlng._ Chr1a~1 C . (N)

•

QGa\o>11. ,Ajyle S. (U)

o

QH..tflel, C8ICI tD)

N.aska Oeil10c:1atlc
Peny Pr1m&1'f

A!Mka Dt 110Cflllic
Pally Prln"l'Y

I 2.

2

And this remained true during the 2020 Primary election:

1

https://elections.alaska.gov/election/20l8/Gcneral/SampleBallots/GEN%20 l 8%20FE
DERAL%20Sample.pdf.
2
https://www.elections.alaska.gov/election/2018/Primary/ SampleBallots/HDl %20ADL
%20Sample.pdf.

COM PLAINT SEEKING DECLARATORY JUDGMENT AND PRELIMINARY
INJ UNCTION PURSUANT TO ALASKA RULE OF CIVIL PROCEDURE 65
Galvin v. Fenumiai, et al.
Case No. 3AN-20Page 4 of 16
32280864.3

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 Unltod States
Senator
(vote ror one)

0
0
0
0

B•atchlord. Edgar· D
Cwoogs. Chns C. • N
Gloss. Al • N
Howe,JoMWayne-A

Democratc
Dernoaalc
Oemocnltlt:
AKkldep

United States
Roprosontatlvo
(VOie for one)

0 GalVln. Al)"e S. • N
0 Hibler, W~l1am •Sitr • D
0 Tu9e1uk.RaySean-O

Oemocratc
Democratc
Oemocratc 3

YESTERDAY, WITHOUT WARNING, DEFENDANTS MATERI ALLY
CHANGED THE WAY CANDIDATES APPEAR ON THE BALLOT

13.

On September 14, without warning or explanation, Defendants published

sampl e ballots for the 2020 general election, w hich do not fo ll ow AS 15.1 5.0 I0(5), nor
are they consistent w ith Defendants' past practice in implementing the statute.
14.

Specifically, in stark contrast to their prior practice and contrary to the clear

statutory requirements, Defendants have suddenly omitted candidate voter regi stration
affiliation information from the ballot.
15.

The 2020 sample federal ballot, which Defendants published yesterday,

lists candidate names as follows:

3

https://www.elcctions.alaska.gov/clection/2020/Primary/SampleBallots/FED%2QAD.Q
df

COMPLAINT SEEKING DECLARATORY JUDGMENT AND PRELIMINARY
INJUNCTION PURSUANT TO ALASKA RULE OF CIVIL PROCEDURE 65
Galvin v. Fenwniai, et al.
Case No. 3/\N-20CI
Page 5of 16
32280864.3

 United States
Senator
(voto ror ono)

0 Howe. Jor, Wa,ne

AK lndtp. Nofl>.iee

0

SIAl/llll Oen

Repul>'.can Norr..:lN

0

Gross.~

Oetnoc:tet.c Norn.nee

0 ,,
Unltod Statoa
Represontatlvo
(vo1e for one)

0

G•l•lll. A.'y.. S.

Oornoaal c NDllWlM

0

Young.Don

Rapu~..can

0

Nomilee

4

DEFENDANTS HAVE FAILED TO OFFER ANY EXPLANATION FOR
THIS SUDDEN CHANGE
16.

Galvin first learned of Defendants' abru pt and unexplained change

yesterday, through a report first published on Twitter as seen below:

4

https://wv.'\v.elections.alaska.gov/e lection/2020/General/SampleBall ots/FED.pdf

COMPLAINT SEEKING DECLARATORY JUDGMENT AND PREUMTNARY
INJUNCTION PURSUANT TO ALASKA RULE OF CIVIL PROCEDURE 65
Galvin v. Fenwniai, et al.
Case No. 3AN-20Cl
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 ...··~

-

~

The Alaska Landmr11e · " , c·•" ",. c: ,,. c c
lnter<ming. The
changed how ballots with -independent"
candidates wtio ran In the Democratic primary appear on the bdllot In 2018
i1 showed a U by thtir name to indicate they are Undroar.ed. That has been
taken ilWay this year. "

.:

17.

-.......

In response, Galvin 's campaign reviewed the sample ballot recentl y

published on the Division of Elections webs ite and confim1ed th at it was consistent w ith
the sample ba llot posted on Twitter.
18.

News outlets reported that ·'[t]he change was made unilatera ll y on Monday

by Alaska Divis ion of Elections Director Gail Fenumiai." 6
19.

On info rm ati on and belief, Defendants fa iled to announce their abrupt

decision to change the ballot until M onday September 14 to avo id a court challenge.

5

https://twitter.com/alaskalandmine/status/ l 305590538314289152?s=2 l.
James Brook and Aubrey Wciber, A late change to the 2020 General Election ballot
sparks outcry from Alaska Democrats, Anchorage Daily News (Sept. 14, 2020),
https://www.adn.com/politics/2020/09/14/a-late-change-to-thc-2020-general-electionballot-sparks-outcry-from-alaska-democrats/ (reporting that " [l]ooking at the ba ll ot
alone, there's no way to tell that [candidates are] independents or non-partisan").

6

COM PLAINT SEEKING DECLARATORY JUDGMENT AND PRELIM INA RY
INJUNCTION PURSUANT TO ALAS KA RULE OF CIVIL PROCEDURE 65
Galvin v. Fenwniai, et al.
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because federal law requires that absent stateside and overseas uniformed service
members and overseas civilian voters be sent their ballots by no later than 45 days before
election day. See 42 U.S.C. § 1971, et seq. For the November 3, 2020 general election,
that deadline is this Saturday, September 19.
20.

On information and belief, Defendants intend to respond to this challenge

by alleging there is no time for them to change the bal lot at this time while still complying
with federa l law to construct a defense against being forced to comply with their
obligations under AS 15.15.010(5) and the Alaska Constitution.
21.

Upon information and belief, Defendants made this eleventh-hour change

to inappropriately affect the outcome of the election by misleading and confusing Alaska
voters and depriving them of essential information.
CANDIDAT E VOTER AFFILIATION IS IMPORTANT TO ALASKA VOTERS
22.

More than half of all Alaska voters are registered as Non-Partisan or

Undeclared.
23.

Specifically, only 13% of Alaska voters self-identify as Democrats in voter

registration records, and only 24% self-identify as Republicans. In contrast, and unlike
in most other states, over 58% of Alaska voters are registered as Non-Partisan or
Undeclared.

COMPLAINT SEEKING DECLARATORY JUDGMENT AND PRELIMINARY
INJUNCTION PURSUANT TO ALASKA RULE OF CIVIL PROCEDURE 65
Galvin '" Fenumiai, et al.

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24.

More than half of Alaska voters chose not to affiliate with any political

party and therefore exercise their freedom of association by explicitly registering with
the state as not affiliated with any political party.

GALVIN'S NON-PARTISAN VOTER AFFILIATION IS A CRITICAL
COMPONENT OF HER CAMPAIGN AND HER IDENTITY
25.

Galvin was registered and identified as an Undeclared voter for well over

a decade.
26.

In 2019, Galvin changed her registration from Undeclared to Non-Partisan.

27.

Galvin changed her registration because Non-Partisan best represents her

beliefs and political objectives, and it is how she self-identifies as a voter.
28.

That Galvin has won her second Democratic Primary election and, for the

second time, is running as the nominee of the Alaska Democratic Party has not changed
or altered how Galvin identifies as a voter.
29.

Ga lvin's personal voter registration affiliation as Non-Partisan, and

fonnerly as Undeclared, has been an important part of her identity, her campaign
platform, and her relationship with her supporters.

COMPLAINT SEEKING DECLARATORY JUDGMENT AND PRELIMJNARY
INJUNCTION PURSUANT TO ALASKA RULE OF CIVIL PROCEDURE 65
Galvin v. Fenumiai, et al.
Case No. 3AN-20CI
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 30.

Omitting Galvin's personal voter registration affiliation from the ballot will

mislead voters by wrongly suggesting that Galvin's personal voter registration affiliation
is Democratic.
31.

Omitting Galvin's personal voter regi stration affiliation from the ballot will

undermine Galvin's constitutionally-protected right to associate and identify as a NonPartisan voter.
32.

Omitting Galvin's personal voter registration affiliation from the ballot will

undermine the constitutionally-protected right of Alaska voters to associate with and
s upport a candidate who best reflect their values and personal political associations and
identities, should they so choose.
33.

Because of Defendants' unlawful actions, Galvin-and the electorate-

wi ll be imminently harmed in a manner that cannot be measured or compensated

in

economic damages unless the actions of Defendants are enjoined immediately.

COUNT .I
VIOLATION OF AS 15.15.030(5)
34.

AS 15.15.030(5) requires that "[t]he names of the candidates and their party

designations shall be placed in separate sections on the state general election ballot under

COMPLAINT SEEKING DECLARATORY JUDGMENT AND PRELIMINARY
fNJUNCTlON PURSUANT TO ALASKA RULE or CIVIL PROCEDURE 65
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 the office designation to which they were nominated," and that " [t]he party affiliation, if
any, shall be designated after the name of the candidate."
35.

Based on Defendants' prior conduct since 2018, when the Supreme Court

ordered them to permit independent and unaffiliated voters to run in Alaska Democratic
Party primaries, Defendants have interpreted AS 15.15.030(5) to require that they list not
on ly the candidate's party nomination, but also the candidate's personal voter registration
affiliation on the ballot.

36.

Defendants decided they would no longer include the information required

by AS 15.15.030(5) in eleventh-hour decision that Fenumiai reportedly made
"unilaterally on Monday" of this week.
37 .

Defendants do not have the authority to act outside the law or in direct

violation of the Alaska Election Code, and specifically in direct contravention of AS
15.15.030(5).

COUNT II
VIOLATION OF ALASKA CONST. ART. I,§ 5
38.

The Alaska Constitution grants every person the right to "freely speak,

write, and publish on all subjects, being responsible for the abuse of that right." Alaska
Const. art. I, § 5. This inherently guarantees the rights of people, and political parties, to

COMPLAINT SEEKING DECLARATORY JUDGMENT AND PRELIMINARY
INJUNCTION PURSUANT TO ALASKA RULE OF CIVIL PROCEDURE 65
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associate together to achieve their po litical goals. See Stale, Div. of Elections v. Green

Party of Alaska, 118 P.3d 1054, 1064-65 (Alaska 2005) ("Green Party"); Vogler v.
lvfiller, 651 P. 2d 1, 3 (Alaska 1982). Both the First Amendment to the federal constitution
and the Alaska Constitution protect "the rights of voters to band together as parties to
pursue political ends." Green Party, 118 P.3d at l 064. But, as the Alaska Supreme Court
has recog nized, the Alaska Constitution is even more protective of political associational
ri g hts than the federal constitution. Alaska Democratic Party, 426 P.3d at 911.
39.

When an election law or procedure is challenged, Alaska courts fi rst

determ ine whether the claimant has asserted a cons titutionally protected right. Green

Party I, 118 P.3d at 1061 (footnotes omitted) (quoting O'Callaghan v. State, 914 P.2d
1250, 125 4 (Alaska 1996)). Next, the court must weigh and assess "the character and
magnitude of the asserted injury to the rights," against "the precise interests put forwa rd
by the State as justifications for the burden imposed by its rule." Id. Finally, courts mus t
"judge the fit between the challenged legislation and the [S]tate's interests in order to
determine ·the extent to which those interests make it necessary to burden the plaintiff's
rights.'" Id. ·"This is a flexible test: as the burden on constitutionally protected rights
becomes more severe, the government interest must be more compelling and the fit
between the challenged legislation and the [S]tate's interest must be closer.'' Id.; see also

COMPLAINT SEEKING DEC LARATORY JUDGMENT AND PRELIMlNAR Y
INJUNCTION PURSUANT TO ALASKA RULE OF CIVIL PROCEDURE 65
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Alaska Democratic Party, 426 P.3d at 907 (applying this test to hold that the Division of
E lections' prohibition on allowing independent and unaffiliated voters to run in
Democratic primary elections imposed an unjustifiable burden on the Alaska Democratic
Party's rights to freedom of association under Alaska Const. Art. I, § 5).
40.

The Supreme Court has struck down election laws that impinged upon the

freedom of association in the political context on multiple occasions. For example, in
striking a law that required voters to "fully affiliate themselves with a single political

party or to forgo completely the opportunity to participate in that party's primary," the
Court found this "place[d] a substantial restriction on the political party's associational
rights.'' Green Party, 118 P.3d at 1065.
41.

Defendants' actions in omitting Galvin's voter registration affiliation from

the ballot impinge upon Galvin's constitutionally-protected right to associate politically
as a voter and through her party nomination.
42.

Defendants have offered no justification for their actions, let alone one that

might justify the burdens their actions have imposed on Galvin's constitutionallyprotected right to associate politically as a voter and through her party nomination.
43.

Defendants' actions in omitting Galvin' s voter registration affiliation from

the ballot burden the associational rights of the non-partisan and independent Alaska

COMPLAINT SEEKING DECLARATORY JUDGMENT AND PRELIMINARY
JN.JUNCTION PURSUANT TO ALASKA RULE OF CIVIL PROCEDURE 65
Galvin v. Fenumiai, et al.
Case No. 3AN-20-

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voters who support Galvin, or who simply prefer to support other non-partisan or
unaffiliated candidates based on their own political associations and affiliations.
44.

Defendants have offered no justification for their actions, let alone any that

might justify the burdens imposed on the constitutionally-protected rights of Alaska
voters.
45.

Because Defendants' interests in or justifications for omitting Galvin 's

voter registration affiliation from the ballot, to the extent they exist, are vastly outweighed

by the burdens Defendants' actions impose on the rights to freedom of political
associati on enjoyed by Galvin and all Alaska voters, Defendants' actions arc
unconstitutional and must be enjoined.

PRAYER FOR RELIEF
WHEREFORE, based upon the fo regoing allegations, Plaintiff respectfully
requests that the Court:
(a)

Declare that Defendants' actions violate AS l 5. l 5.030(5)'s clear mandate

that a candidate·s voter registration political affiliation be included on the ballot;
(b)

Declare that Defendants' actions impose an undue burden on the right to

freedom of association guaranteed by Article I. Section 5 of the Alaska Constitution;
(c)

Vacate and set aside D efendants' actions;

COMPLAINT SEEKING DECLARATORY JUDGMENT AND PRELIMINARY
TN.JUNCTION PURSUANT TO ALASKA RULE OF CIVIL PROCEDURE 65
Galvin ' '· Fenumiai, et al.
Case No. 3AN-20Page 14of16
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 (d)

Restore the status quo and prohibitively enjoin Defendants' from printing

ballots that violate the requirements of AS 15.15.030(5) and Article I, Section 5 of the
Alaska Constitution;
(c)

Restore the status quo and mandatorily enjoin Defendants by requiring

them to prepare and print ballots that comply w ith the requirements of AS 15.15 .030(5)
and Article I, Section 5 of the Alaska Constitution;

(i)

Award Plaintiff her fees, costs, and other expenses to the extent provided

by law; and
(g)

Issue such other relief as the Court may deem just, proper, and equitable.

DATED:

(

epf-f3'iz,d:rw 1~-: 2020.
PERKINS COTE LLP

COMPLAINT SEEKING DECLARATORY JUDGMENT AND PRELIMINARY
IN.JUNCTION PURSUANT TO ALASKA RULE OF CIVIL PROCEDURE 65
Galvin v. Fenumiai, et al.
Case No. 3AN-20CI
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VERIFICATION
I. Alyse S. Galvin. having been duly sworn depose and state that I have read the foregoing
Verified Complaint for Seeking Declaratory Judgment and Preliminary Injunction Purusant to
Alaska Rule of Civil Prm:edure 65. and that the information stated therein is factual and true.

Dated:

tf/;dJA2

Subscribed and sworn to or affirmed before me m

----- -------- on

September 15. 2020.

Clerk. Notary Public. or other person authorized to
administer oaths.
My commission expires: _ _ _ _ __

COMPLAINT SEEKING DECLARATORY JUDGMENT AND PRELIMINARY
INJUNCTION PURSUANT TO ALASKA RULE OF CIVIL PROCEDURE 65
Galrin \·. Fenumiai and
Slate c~lA /asku Dfrision of Elections
Case No.
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