Current Issue

Note From the Editor
PDF

Address

Keynote Address: Alaskan Election Law in 2020
Erwin Chemerinksy
PDF

Article

Alaska’s Ballot Initiative Today: History, Practice, and Process
Elizabeth M. Bakalar
PDF

Since statehood, Alaska’s Constitution has included the right of the people to enact legislative change by direct democracy. The state’s initiative process as governed by the Alaska Constitution, statutes, and caselaw reflects a delicate balance of citizen participation within carefully crafted guardrails meant to ensure the efficacy of the process and the role of the legislature. Alaska courts have developed a still-evolving body of caselaw interpreting the restrictions on the subject and scope of ballot initiatives, the role of the executive and judicial branches in the initiative process, and the timing and procedural features of the process. Navigating the initiative process can be expensive and arduous, and can involve difficult legal judgments by the courts, the petitioners, and the executive branch. For decades Alaskans have managed to do just that, and direct democracy has proved to be an important tool for advancing the people’s interests when they fail to garner attention or support in the legislature. This piece reviews the history of direct democracy in the Alaska Constitution and the law on Alaska’s ballot initiative process as it currently stands, including important recent updates.

Essay

Alaskan Exceptionalism in Campaign Finance
Chad Flanders
PDF

This article argues that Alaska’s efforts in campaign finance reform are closely tied to a philosophy of “Alaskan Exceptionalism”: the view that Alaska is fundamentally different from other states. A recent decision from the Supreme Court, Thompson v. Hebdon , may, however, weaken Alaska’s right to justify its reforms through an “exceptionalist” lens. The same decision suggests the Supreme Court is further narrowing its campaign finance jurisprudence more generally. Without these campaign finance limits, Alaskan politics may continue to be dominated by the oil and gas industry, the very problem those limits sought to address in the first place

Notes

Unlocking the Ballot: The Past, Present, and Future of Alaska Native Voting Rights
Zachary R. Kaplan
PDF

Racial oppression in American democracy is older than America itself. While most existing scholarship focuses on the historical disenfranchisement of Black and Latinx voters, this Note tells the story of the voting rights of a smaller, but still noteworthy marginalized American community: Alaska Natives. By contextualizing the history of Alaska Native disenfranchisement within the broader national landscape, this Note seeks to illuminate the ways in which the Alaska Native experience is similar to, and unique from, the experiences of other marginalized American communities. Although this history and present are rife with troubling discrimination, inequity, and non-compliance, this Note is ultimately a hopeful one, concluding that Alaska can – and must – take the burdensome but necessary steps required to fully establish and protect the voting rights of its Native people.

Retaining Judicial Independence: Solutions to Increasing Threats to Alaska’s Judicial Merit System
Ryan Kuchinski
PDF

While the judicial merit system in Alaska has effectively balanced accountability with the competing need for independence in the judiciary, the growing trend of politicized retention elections threatens that independence. This Note examines the threat to the Alaskan judicial merit system, argues for the importance of protecting an independent judiciary, and proposes a number of potential solutions to reform or replace the current retention election system.

Comment

When Misrepresentation Becomes Deceptive: Analyzing Petition-Signer Inadvertence Post-Cambell
Melissa English & Daisy Gray
PDF

In 2010, the Alaska supreme court held that a legally deficient petition summary of a ballot initiative could be corrected and put on the ballot without being recirculated for signatures. The Parental Involvement Initiative at the root of the litigation would prohibit doctors from performing abortions for unemancipated minor women who had not provided notice to or obtained consent from a parent. After the petition was circulated for signatures, the supreme court determined that omissions of fact in the petition summary rendered the summary inaccurate and therefore deficient. However, the court refused to require that the initiative sponsors recirculate the petition with a corrected summary upon a determination that the deficient summary was unlikely to have led to petition-signer inadvertence. This Comment critiques the supreme court’s analysis of petition-signer inadvertence and proposes a more robust standard that advances the policy goals the court has considered when evaluating ballot initiatives.

Goodbye Yellow Brick Road: Enfranchisement Among Native American Voters and Nick v. Bethel
Kristen M. Renberg
PDF

This Comment documents the limited impact of Nick v. Bethel and proposes legislative and electoral reforms to increase enfranchisement among Alaska Natives. The Voting Rights Act (VRA) of 1965 made significant progress in protecting minority voting rights. In 2007, a federal district court interpreted the “historically unwritten” exemption in Section 203 of the VRA for the first time in Nick. While the court found Yup’ik to be historically unwritten, the court also reasoned that written translations of election materials should be prepared in order to ensure that oral translations were effective in accommodating voters. The state responded through various actions to ensure the effectiveness of the language assistance program in the Bethel Census Area. Nick set up a roadmap for future successful litigation to bring the state into compliance with the VRA. However, since the U.S. Supreme Court held parts of the VRA unconstitutional in Shelby County v. Holder , the litigation strategy outlined in Nick has dissolved. In turn, the call for new federal and state policies addressing the geographic and language obstacles for voters in Alaska has never been clearer.

Primer

How Should Alaskans Choose?: The Debate Over Ranked Choice Voting
Angela Sbano
PDF

In November 2020, Alaskan voters will decide whether or not they will adopt a Ranked Choice Voting system for elections within their state. While the move would be an unprecedented one for the state, the state of Maine and cities across the country have already adopted Ranked Choice Voting in recent years. The electoral system of Ranked Choice Voting in the United States has seen city-wide adoption, mass repeal, and renewed interest and support over the last century. Proponents hail its ability to improve representation and campaign civility, while opponents point out its complexity and potential to decrease voter turnout. The issue of whether to adopt this electoral reform invokes questions about access to representation, voter participation, and solutions to the larger structural problems, such as polarization, that plague American politics today.

The Top-Four Primary and Alaska Ballot Measure 2
Brendan McGuire
PDF

This Primer provides an overview of the debate surrounding non-partisan ranked primaries. In the November 2020 election, Alaskan voters decided whether to adopt Ballot Measure 2 which, among other reforms, would introduce a top-four primary system. Under this system, the top-four vote-getters in the primary election, regardless of partisan affiliation, would advance to the general election. Supporters of the reform argue it offers voters more choices, fosters competition, creates a more representative pool of candidates, and avoids vote splitting. Opponents contend that such a system reduces representation by possibly preventing political parties from participating in general elections. Alaska will not be the first state to adopt a top-rank primary system; the debate over Ballot Measure 2 is just another chapter in the historical dialogue over voting reform.

Current Issue

Note From the Editor
PDF

Address

Keynote Address: Alaskan Election Law in 2020
Erwin Chemerinksy
PDF

Article

Alaska’s Ballot Initiative Today: History, Practice, and Process
Elizabeth M. Bakalar
PDF

Since statehood, Alaska’s Constitution has included the right of the people to enact legislative change by direct democracy. The state’s initiative process as governed by the Alaska Constitution, statutes, and caselaw reflects a delicate balance of citizen participation within carefully crafted guardrails meant to ensure the efficacy of the process and the role of the legislature. Alaska courts have developed a still-evolving body of caselaw interpreting the restrictions on the subject and scope of ballot initiatives, the role of the executive and judicial branches in the initiative process, and the timing and procedural features of the process. Navigating the initiative process can be expensive and arduous, and can involve difficult legal judgments by the courts, the petitioners, and the executive branch. For decades Alaskans have managed to do just that, and direct democracy has proved to be an important tool for advancing the people’s interests when they fail to garner attention or support in the legislature. This piece reviews the history of direct democracy in the Alaska Constitution and the law on Alaska’s ballot initiative process as it currently stands, including important recent updates.

Essay

Alaskan Exceptionalism in Campaign Finance
Chad Flanders
PDF

This article argues that Alaska’s efforts in campaign finance reform are closely tied to a philosophy of “Alaskan Exceptionalism”: the view that Alaska is fundamentally different from other states. A recent decision from the Supreme Court, Thompson v. Hebdon , may, however, weaken Alaska’s right to justify its reforms through an “exceptionalist” lens. The same decision suggests the Supreme Court is further narrowing its campaign finance jurisprudence more generally. Without these campaign finance limits, Alaskan politics may continue to be dominated by the oil and gas industry, the very problem those limits sought to address in the first place

Notes

Unlocking the Ballot: The Past, Present, and Future of Alaska Native Voting Rights
Zachary R. Kaplan
PDF

Racial oppression in American democracy is older than America itself. While most existing scholarship focuses on the historical disenfranchisement of Black and Latinx voters, this Note tells the story of the voting rights of a smaller, but still noteworthy marginalized American community: Alaska Natives. By contextualizing the history of Alaska Native disenfranchisement within the broader national landscape, this Note seeks to illuminate the ways in which the Alaska Native experience is similar to, and unique from, the experiences of other marginalized American communities. Although this history and present are rife with troubling discrimination, inequity, and non-compliance, this Note is ultimately a hopeful one, concluding that Alaska can – and must – take the burdensome but necessary steps required to fully establish and protect the voting rights of its Native people.

Retaining Judicial Independence: Solutions to Increasing Threats to Alaska’s Judicial Merit System
Ryan Kuchinski
PDF

While the judicial merit system in Alaska has effectively balanced accountability with the competing need for independence in the judiciary, the growing trend of politicized retention elections threatens that independence. This Note examines the threat to the Alaskan judicial merit system, argues for the importance of protecting an independent judiciary, and proposes a number of potential solutions to reform or replace the current retention election system.

Comment

When Misrepresentation Becomes Deceptive: Analyzing Petition-Signer Inadvertence Post-Cambell
Melissa English & Daisy Gray
PDF

In 2010, the Alaska supreme court held that a legally deficient petition summary of a ballot initiative could be corrected and put on the ballot without being recirculated for signatures. The Parental Involvement Initiative at the root of the litigation would prohibit doctors from performing abortions for unemancipated minor women who had not provided notice to or obtained consent from a parent. After the petition was circulated for signatures, the supreme court determined that omissions of fact in the petition summary rendered the summary inaccurate and therefore deficient. However, the court refused to require that the initiative sponsors recirculate the petition with a corrected summary upon a determination that the deficient summary was unlikely to have led to petition-signer inadvertence. This Comment critiques the supreme court’s analysis of petition-signer inadvertence and proposes a more robust standard that advances the policy goals the court has considered when evaluating ballot initiatives.

Goodbye Yellow Brick Road: Enfranchisement Among Native American Voters and Nick v. Bethel
Kristen M. Renberg
PDF

This Comment documents the limited impact of Nick v. Bethel and proposes legislative and electoral reforms to increase enfranchisement among Alaska Natives. The Voting Rights Act (VRA) of 1965 made significant progress in protecting minority voting rights. In 2007, a federal district court interpreted the “historically unwritten” exemption in Section 203 of the VRA for the first time in Nick. While the court found Yup’ik to be historically unwritten, the court also reasoned that written translations of election materials should be prepared in order to ensure that oral translations were effective in accommodating voters. The state responded through various actions to ensure the effectiveness of the language assistance program in the Bethel Census Area. Nick set up a roadmap for future successful litigation to bring the state into compliance with the VRA. However, since the U.S. Supreme Court held parts of the VRA unconstitutional in Shelby County v. Holder , the litigation strategy outlined in Nick has dissolved. In turn, the call for new federal and state policies addressing the geographic and language obstacles for voters in Alaska has never been clearer.

Primer

How Should Alaskans Choose?: The Debate Over Ranked Choice Voting
Angela Sbano
PDF

In November 2020, Alaskan voters will decide whether or not they will adopt a Ranked Choice Voting system for elections within their state. While the move would be an unprecedented one for the state, the state of Maine and cities across the country have already adopted Ranked Choice Voting in recent years. The electoral system of Ranked Choice Voting in the United States has seen city-wide adoption, mass repeal, and renewed interest and support over the last century. Proponents hail its ability to improve representation and campaign civility, while opponents point out its complexity and potential to decrease voter turnout. The issue of whether to adopt this electoral reform invokes questions about access to representation, voter participation, and solutions to the larger structural problems, such as polarization, that plague American politics today.

The Top-Four Primary and Alaska Ballot Measure 2
Brendan McGuire
PDF

This Primer provides an overview of the debate surrounding non-partisan ranked primaries. In the November 2020 election, Alaskan voters decided whether to adopt Ballot Measure 2 which, among other reforms, would introduce a top-four primary system. Under this system, the top-four vote-getters in the primary election, regardless of partisan affiliation, would advance to the general election. Supporters of the reform argue it offers voters more choices, fosters competition, creates a more representative pool of candidates, and avoids vote splitting. Opponents contend that such a system reduces representation by possibly preventing political parties from participating in general elections. Alaska will not be the first state to adopt a top-rank primary system; the debate over Ballot Measure 2 is just another chapter in the historical dialogue over voting reform.

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