Alaska drops criminal prosecution of 11 Whittier residents for alleged noncitizen voting

Following a ruling by the Alaska Court of Appeals, the Alaska Department of Law has dropped criminal charges against 11 American Samoan residents of Whittier who were accused of illegal voting.

American Samoans are U.S. nationals but not citizens and thus cannot vote in Alaska elections. 

State prosecutors charged Tupe Smith and 10 other Whittier residents with voting illegally after Smith won a local school board race in 2022.  

All 11 said they were unaware that they could not vote in local elections and said they were misinformed by local elections officials. 

Smith, who was charged in 2023, sought to have her case dismissed. A Superior Court judge denied that request, but Smith appealed, and the Court of Appeals ruled this month that in order to convict someone of voting illegally, prosecutors must prove that someone intentionally sought to deceive elections officials when they cast an illegal vote.

The Department of Law had brought charges against Smith and others under a different standard, one that doesn’t require an intent to deceive. 

Rather than appeal the Court of Appeals interpretation to the Alaska Supreme Court, the Department of Law dropped the charges.

“Our prosecutors have an obligation to follow the law as it is written and to apply it faithfully to the cases before us,” said Acting Alaska Attorney General Cori Mills in a statement published Friday. “It is sometimes the case that courts reach a different conclusion about what the law requires the state to prove, as the Court of Appeals has done here. This requires us to re-evaluate whether the state can prove its case beyond a reasonable doubt under the new standard, and after reviewing the decision and applying the facts, we don’t think we can do that.”

Attorneys for Smith and the other Whittier residents accused of wrongdoing said they were happy with the result but disappointed that it took years to resolve.

“We could not have been happier when we heard the news. This was a major stress. It feels like a dark cloud hanging over our heads has been removed. I could not help but worry about worst-case scenarios, and how to deal with not seeing my kids if I’m taken away to prison,” said Michael Pese, Smith’s husband and one of the 10 other American Samoans charged by the state. 

“It feels good after everything we’ve been through. We are relieved to no longer have to worry about who will watch our kids if we are both put in jail,” Smith said.

“The state’s dismissal of charges is welcome, but these searches, arrests and prosecutions should never have been done in the first place,” said Charles Ala’ilima, an American Samoan attorney who represented Smith and Michael Pese, her husband. 

“These prosecutions were traumatizing, not just for those charged, but for the entire American Samoan community in Alaska. It opens all of our eyes to the real difficulties we face as American Samoans because of our current ambiguous and, in my opinion, unconstitutional, noncitizen second-class legal status imposed by federal statute,” Ala’ilima added.