Al Gross should have stayed on U.S. House ballot, Alaska Supreme Court says
Justices concluded that the Alaska Division of Elections mishandled the withdrawal of the independent who sought to replace Don Young
May 4, 2023
The Alaska Division of Elections improperly removed Al Gross, an independent candidate for U.S. House, from last year’s special election ballot, the Alaska Supreme Court said in a ruling published Friday.
Gross withdrew from the race after finishing third among 48 candidates in the special primary election that was the first step in filling the House seat left vacant by the death of Congressman Don Young.
Democrat Mary Peltola, who finished fourth behind Gross in the special primary, won both the special election in August and the regular general election in November.
Gross’ withdrawal has still not been explained, and the division advanced only three candidates to the four-person ranked-choice general election after removing Gross from the ballot.
That removal didn’t follow state law, the court concluded in a 30-page analysis, stating, “had the Division strictly followed the law, Dr. Gross’s name should have remained on the special general election ballot.”
Under state law, a candidate must withdraw at least 64 days before the general election in order to be removed from the ballot.
Gross quit the race after that deadline but expected the fifth-place finisher, Republican Tara Sweeney, would be promoted to fill his spot. His withdrawal statement urged his supporters to support either Sweeney or Peltola.
Instead, the then-director of the Division of Elections, Gail Fenumiai, said he would be removed from the ballot and replaced with no one.
Four of the court’s five justices — the fifth recused himself from the case — said they are “troubled by the Division’s apparent failure to abide by the statute and its own regulations in this regard.”
It isn’t clear how — or whether — the result of the election would have changed if Gross had remained on the ballot.
Patty Sullivan, a special assistant to Attorney General Treg Taylor and a frequent spokesperson for the Alaska Department of Law, said the Division of Elections “was surprised by that part of the decision. No one argued that (the statute) required the division to include a candidate on the ballot even after he withdrew. The court came up with that reading of the statute on its own, without the benefit of briefing from the parties. The division is evaluating the decision and considering whether it warrants a petition for rehearing.”
Friday’s ruling was the result of a lawsuit filed by three Alaska Native plaintiffs who sued the division after officials there declined to replace Gross with Sweeney.
The court said in a brief ruling last year that the division lacked the power to replace Sweeney with Gross, and Friday’s ruling reconfirmed that initial decision.
Gross withdrew 57 days before the general election. Justices concluded that if Gross had quit before the 64-day deadline in state law, Sweeney would have replaced him, but because he did not, no replacement was possible.
The justices concluded that timelines included in Alaska’s recently implemented ranked-choice voting law applied to both special elections and regular elections.
In addition to scolding the division for its handling of Gross’ withdrawal, the justices also criticized the timeline used for handling candidate withdrawals before the special primary election.
State law says the withdrawal deadline is 52 days before a primary; in the special election, the division set it 69 days beforehand.
No one raised that point during the lawsuit, the justices said, so they did not rule on that issue.
Attorneys representing the three plaintiffs had argued at trial that the Division of Elections has the flexibility to act differently during a special election, but the justices concluded differently.
“Unless the division can articulate substantial confusion or impossibility, it must apply all statutorily mandated election deadlines as written in the statute,” they wrote.
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