Alaska Drops All Voter Fraud Cases Against American Samoans

Alaska prosecutors dropped voter misconduct cases against 11 American Samoans after an appeals court ruled a checked box alone cannot prove criminal intent.

Alaska's Department of Law announced Friday it is dropping voter misconduct cases against a group of residents born in American Samoa, ending prosecutions of 11 people from the small community of Whittier who were charged with falsely claiming US citizenship when registering or trying to vote. The decision came a week after a three-judge Court of Appeals panel threw out the felony charges against Tupe Smith, a Whittier woman arrested in 2023 after winning election to a regional school board. Her husband, Michael Pese, had also been charged. Acting Attorney General Cori Mills said prosecutors reviewed the court's ruling, applied it to the facts, and concluded they could not prove the cases beyond a reasonable doubt, adding that the state respects the courts' role in interpreting Alaska law.

The state had pursued felony charges against an entire small community over a single checkbox on voter registration forms, and prosecutors had argued that Smith falsely and deliberately claimed citizenship, pointing to warnings on her 2020 and 2022 registration forms that noncitizens 'are not eligible to vote.' The reversal is striking because a lower court judge had previously allowed the prosecution to continue, and Smith was arrested only after she won a school board seat. Neil Weare, co-director of the nonprofit Right to Democracy and part of the defendants' legal team, said the decision to drop charges 'raises questions about why this prosecution was even brought to begin with,' asserting the state never had evidence of wrongdoing.

The appeals panel found flaws both in a state trooper's questioning of Smith and in the grand jury process that led to her indictment. According to the panel's ruling, a trooper asked Smith, whose native language is not English, a long compound question implying she knew she was ineligible to vote; when she did not respond, another trooper said 'He's asking you,' and the question was repeated. Smith answered 'Yes,' which led to her arrest and indictment on two counts of felony voter misconduct. The panel described the question as 'a lengthy and complex statement containing four individual questions' and said her 'Yes' could not fairly be treated as a clear admission that she knew she was breaking the law.

The Court of Appeals ruled that Alaska law requires proof that defendants who erroneously filled out voter registration forms had a 'consciousness of wrongdoing' and intended to break the law — more than simply showing a statement was false. Smith's lawyer, Whitney Brown, said the ruling 'establishes an important safeguard against imposing felony liability for an honest mistake' and helps ensure Alaska's voter-misconduct statute is applied as the legislature intended. The case spotlighted a quirk of US law: American Samoa is the only US territory where birth does not automatically confer citizenship, so its residents are US nationals who can serve in the military and hold US passports but cannot vote in most US elections or hold US public office.

Smith said she marks herself as a US national on paperwork, but Alaska's voter registration form offered no such option. According to court papers, city representatives in Whittier told her it was appropriate to mark herself as a citizen when she asked. Smith was arrested after winning election to a regional school board in 2023 and has said she relied on erroneous information from local election officials. Per The Alaska Story, the state's own 20-page opinion noted grand jurors themselves questioned whether Smith had made an honest mistake, with one asking whether checking the box 'by accident' would still constitute a felony. The ruling does not make US nationals eligible to vote in Alaska.

The Department of Law's decision effectively ends prosecutions that began with 11 American Samoan residents of Whittier and drew national attention to both the unusual citizenship status of people born in American Samoa and the absence of a 'US national' option on Alaska's voter registration forms. Brown said the dismissal will allow the community 'to put this ordeal behind them and begin moving forward.' The ruling still leaves deliberate voter fraud prosecutable in Alaska, but prosecutors must now prove criminal intent rather than merely that a registration document contained false information. Naturalization remains the path to citizenship for American Samoans, though it is described as expensive and cumbersome.