Court Rules that State Must Prove "Consciousness of Wrongdoing,” Questions Whether State Could File Separate Perjury Charges

The Alaska Court of Appeals, in a unanimous opinion, has ruled against the State of Alaska in its criminal prosecution of Tupe Smith, an American Samoan woman living in Whittier who had been instructed by local officials to mark she was a “U.S. citizen” on voter registration forms after she told them she was a “U.S. national.” The Court ruled that to prove voter misconduct the state must establish “that the defendant acted with a consciousness of wrongdoing in purposely or deliberately making a false sworn statement under an oath.” The decision reversed an earlier ruling by the Alaska Superior Court.

Tupe Smith, right, next to her husband, Michael Pese, in front of the Boney Courthouse. Photo Credit: Jeff Chen

“The state’s prosecution against me and my family has been extremely difficult. I feel vindicated by today’s court decision. But at the same time I worry it will not mean the end of the state’s criminal targeting of the American Samoan community in Whittier,” said Tupe Smith, who the State arrested on charges of voter misconduct shortly after she was elected to serve on her local school board in 2023. 

The Court ruled that “Smith would not be criminally liable if she did not realize that checking the U.S. citizen box was wrong,” explaining that “she stated that she had been told by Whittier election officials that if there was not a box to check for U.S. national, she should check the box for U.S. citizen.” The Court further noted that when the police interviewed her “she was confused about her status and her eligibility to vote,” with the court observing that “Alaska law sometimes expressly treats U.S. nationals as U.S. citizens.” 

“We appreciate the Court’s thoughtful ruling, which in addition to following the law just makes common sense,” said Neil Weare, Co-Director of Right to Democracy, who represents Ms. Smith along with her husband Michael Pese, who is also facing prosecution. “Being confused about what box to check, especially after public officials tell you to check a certain box, should not be considered a crime at all, much less a felony that could mean up to five years in jail.”

“We are delighted for Ms. Smith, whose case has always centered on a simple principle: people should not face felony charges for voter misconduct absent proof that they intended to do something wrong. The Alaska Court of Appeals’ opinion faithfully applies the law and provides important guidance on how Alaska’s voter-misconduct statute should be understood in future cases,” said Whitney Brown, a partner at Stoel Rives, who argued the case before the Alaska Court of Appeals on behalf of Ms. Smith.

“The state should take this moment to pause and reconsider its criminal prosecution of American Samoans in Whittier. Not just of Ms. Smith, but her husband Michael Pese and all the others it has charged,” said Charles Ala’ilima, an American Samoan attorney who also represents Ms. Smith and Mr. Pese. “American Samoa’s Governor, Congresswoman, and legislative leaders have all expressed concerns about Alaska’s ongoing criminal prosecutions of our people, and we hope Alaska prosecutors will take that into consideration as they plan their next steps.” 

If the state chooses not to bring its criminal prosecution to an end, it has a few options. The State could appeal the decision to the Alaska Supreme Court. Or it could reindict Ms. Smith under the correct standard for voter misconduct. While it is also possible the State could charge Ms. Smith with perjury charges as it has her husband, Michael Pese, and other American Samoan defendants, the Court of Appeals questioned in a footnote whether the State could do so. Without deciding the question, it observed that “the State could potentially charge Smith with both first-degree voter misconduct and perjury, notwithstanding the fact that the legislature has chosen to enact a specialized voter misconduct statute.”

In the remaining criminal cases, the Alaska superior court is also considering motions to dismiss the charges based on the constitutional defense that Mr. Pese and others born in American Samoa - a U.S. territory for 125 years – are U.S. citizens based on the Citizenship Clause of the Fourteenth Amendment. Briefing on those motions will be complete later this month.

Right to Democracy has an FAQ on its website with more information about the ongoing criminal prosecution of American Samoans in Alaska.