Alaska Supreme Court keeps federal prisoner on ballot for U.S. House race after appeal denied

ANCHORAGE, Alaska (KTUU) - An appeal by the Alaska Democratic Party to take a federal prisoner’s name off the November ballot for Alaska’s U.S. House race was denied Thursday by the state Supreme Court.

What voters wanted when they approved moving to ranked-choice voting in 2020 was at the center of arguments Alaska Supreme Court justices heard during the emergency appeal Thursday.

The attorneys representing the Alaska Democratic Party and one state resident submitted the emergency appeal just one day earlier.

Superior Court Judge Ian Wheeles’s ruling on Tuesday allowed Eric Hafner — who is running as a Democrat and serving a 20-year sentence in a New York federal prison for threatening elected officials in New Jersey and false bomb threats — to remain eligible for the ballot.

Hafner will face incumbent Rep. Mary Peltola, D-Alaska, Republican Nick Begich, and Alaska Independence Party candidate John Wayne Howe.

Department of Law spokesperson Patty Sullivan said of the decision, “We would just thank the Supreme Court for issuing a decision on such short notice and preventing any disruption to the election.”

Alaska Democratic Party chair said after the ruling, lawmakers may need to take further action.

“I do think the legislature should act to prevent people who are incarcerated, convicted felons, who have not finished their probation, finished their sentence, they should not be able to run on our ballots,” he said.

Focusing on a single issue Thursday morning, Democrats attorney David Fox argued state law only allows candidates who finish fifth in the general election to replace a candidate who finished in the top four under Alaska’s primary system.

The law states, “If a candidate nominated at the primary election dies, withdraws, resigns, becomes disqualified from holding office for which the candidate is nominated, or is certified as being incapacitated in the manner prescribed by this section after the primary election and 64 or more days before the general election, the vacancy shall be filled by the director by replacing the withdrawn candidate with the candidate who received the fifth most votes in the primary election.”

Hafner finished sixth in the primary election with less than 500 votes but was elevated to the top four on the general election ballot — along with Alaska Independence Party candidate John Wayne Howe, who finished fifth — after Republican Lt. Gov. Nancy Dahlstrom and fourth-place finisher Republican Matthew Salisbury withdrew from the race.

In a phone call Thursday from prison shortly after the appeal ruling came out, Hafner told Alaska’s News Source said the lawsuit was “absolutely frivolous” from the beginning and the appeal “even more.”

Certainly, the state of Alaska is absolutely correct in saying that we don’t have the time to delay anything here to make sure that everybody gets their ballots and they’re able to vote,” Hafner said. “All throughout the primary, everybody knew who I was. Everybody knew the fact that I was in prison, and nobody seemed to have any interest in filing any sort of challenge.

“Now that I’ve [finished sixth in] the primary and I’m ready to win in November, suddenly we have these frivolous challenges come out of the womb.”

Justice Dario Borghesan asked Fox what his interpretation of the law is for multiple withdraws.

“So can the vacancy actually be filled? Or can it not be filled? And then what do we make of the fact that it directs the director to fill the vacancy, but she can’t actually do that,” Borghesan asked.

“If they wanted to authorize more replacements, they would have written the statute differently,” Fox replied. “And then the question is — so what to make of multiple withdrawals? I think it’s possible that you just can’t remove more than one person from the ballot and replace them.”

Jesse Alloway, counsel for the State of Alaska and Division of Elections, argued the statute is not interpreted in a single instance, saying any time a candidate withdraws, it repeats itself.

Lt. Gov. Dahlstrom withdrew on Aug. 27 and Salisbury did the same on Aug. 30.

“Everybody moves up, basically, at that point,” Alloway said. “Three days later, you have a second withdrawal. You again have to apply that statute ... the director has to replace that candidate, who’s the fifth place — who’s now in fifth place?”

Justice Susan Carney argued that the statute could be interpreted as there being one fifth-place finisher; the candidate that finishes in that position once the primary results are certified.

“There’s only one of those people that can only replace a candidate that withdraws,” Carney said.

Justice Jennifer Henderson presented what appeared to be a more natural interpretation of the statue.

“For instance, if a person speaks to me, I will respond to them. I imagine over the course of the day that would most naturally be read and understood to me, whenever a person speaks to me, I will respond to them — not I’m only going to respond to one person because I expect only one person will speak to me today,” Henderson said.

Fox replied, “I think that if a drafter had wanted to clearly convey that they were talking about whenever anyone does this, they would have said whenever any or if any candidate withdrew.”

The Democrats have argued that this is not how the ranked-choice system is designed, pointing to where Hafner finished in the primary race and the irreparable harm he could have on the Democrats in the general election.

The plaintiffs in their lawsuit have argued that Hafner’s presence on the ballot could “confuse” voters. Hafner is not a member of the Alaska Democrats, and they don’t want to be associated with a convicted felon.

“The voters also had a chance to vote for Mr. Hafner in the primary election. I mean, it’s not like he was disqualified for the ballot entirely, and the voters — a few of them — voted for him to qualify for the general election under the plain terms of the statute,” Fox told the justices.

Also present at the appeal hearing was Richard Moses, counsel for the Republican Party. He echoed Alloway when he said eliminating Hafner from the ballot would go against the wishes of Alaskans who voted for ranked-choice voting.

“All of the publicly available information pointed to Alaskans having more choices on a November general election ballot, not fewer,” Moses said.

In their lawsuit, Democratic Party members have alluded to their feeling the Republican Party is encouraging candidates to drop out so voters can support one general election candidate.

In a recent statement, Democratic Party Executive Director Lindsay Kavanaugh alluded to the Alaska Republican’s alleged plan.

“Unlike the Republican Party, we don’t have to scheme to win by asking candidates to drop out until a convicted felon gets on the general election ballot who received less than half a percentage of the votes cast during the primary. We have more respect than that for voters in Alaska; clearly, our candidates are more viable than theirs.”

Republicans split the vote in 2020 between Begich and former Gov. Sarah Palin, R-Alaska. Begich said before the primary that he would have dropped out if he had finished third because in 2022, voters who voted for him didn’t list a second choice.

However, in their lawsuit, the Democrats also acknowledged with two Democrats on the ballot, Alaskans who vote for Hafner might list a second choice.

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