Thomas R. Wickwire, Lawyer 2775 Hanson Road, Suite 1 Fairbanks, AK 99709-3940 Phone: 907-474-0068 Fax: 907-474-0069 e-mail: tom@twickwire.com Attorney for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ALASKA HAROLD FREDERICK RUDOLPH, SR., ) GERALD GUGEL, JR., APRIL J. PUGH, ) KEVIN HITE and JOHN M. McKENZIE, ) LOLA G. McKENZIE ) Civil Action No: ) Plaintiffs, ) v. ) ) LIEUTENANT GOVERNOR CRAIG ) CAMPBELL, in his official capacity; ) and STATE OF ALASKA, ) DIVISION OF ELECTIONS, ) ) Defendants. ) ) COMPLAINT UNDER THE VOTING RIGHTS ACT FOR INJUNCTIVE AND DECLARATORY RELIEF Three-Judge District Court Requested Plaintiffs Harold Frederick Rudolph, Sr., Gerald Gugel, Jr., April J. Pugh, Kevin Hite, John M. McKenzie and Lola G. McKenzie hereby allege as follows: Introduction 1. The State of Alaska, Division of Elections (hereafter, Division ) has adopted or administered several standards, practices and procedures with respect to voting in the 2010-1 -
general election for U.S. Senate (hereafter, Election ) without obtaining pre-clearance from the Department of Justice or approval from this Court, in direct violation of the Voting Rights Act, 42 U.S.C. 1973c(a). 2. The Supreme Court has explained that the Voting Right Act suspend[s] all changes to state election law, however innocuous, until they have been pre-cleared by federal authorities in Washington D.C. The pre-clearance requirement applies broadly. Northwest Austin Mun. Util. Dist. No. 1 v. Holder, 129 S. Ct. 2504, 2511 (2009). 3. This Court should issue a declaratory judgment that the Division has adopted or administered several standards, practices and procedures in violation of the Voting Rights Act, and enjoin Defendants from certifying any Election results that have been calculated using, or are otherwise based on or derived from, such unapproved standards, practices and procedures. Jurisdiction 4. This Court has subject-matter jurisdiction over this case pursuant to 28 U.S.C. 1331 (federal question) and 28 U.S.C. 1343(a)(4) (civil rights / right to vote). 5. This Court has jurisdiction to enter a declaratory judgment in this case pursuant to 28 U.S.C. 2201. Venue 6. Venue is proper in this District and Division pursuant to 28 U.S.C. 81A; id. 1391(b)(1), (b)(2); and D. Ak. LR 3.3(a). - 2 -
Three-Judge Court 7. The Voting Rights Act provides that [a]ny action under 42 U.S.C. 1973c shall be heard and determined by a court of three judges in accordance with 28 U.S.C. 2284; see also D. Ak. LR 9.2(a)(1). Parties 8. Plaintiff Harold Frederick Rudolph, Sr., is an Alaska Native, citizen of and a registered voter of the State of Alaska. He voted in the 2010 general election in the race for U.S. Senate. 9. Plaintiff Gerald S. Gugel, Jr., is an Alaska Native (Aleut) a citizen of and registered voter of the State of Alaska. He voted in the 2010 general election in the race for U.S. Senate. 10. Plaintiff April J. Pugh is an Alaska Native (Inupiak) a citizen of and registered voter of the State of Alaska. She voted in the 2010 general election in the race for U.S. Senate. 11. Plaintiff Kevin Hite is a citizen of and registered voter of the State of Alaska. He voted in the 2010 general election in the race for U. S. Senate. 12. Plaintiff John M. McKenzie is an Alaska Native, a citizen of and registered voter of the State of Alaska. He voted in the 2010 general election in the race for U.S. Senate. 13. Plaintiff Lola McKenzie is an Alaska Native, a citizen of and registered voter of the State of Alaska. She voted in the 2010 general election in the race for U.S. Senate. - 3 -
14. Defendant Craig Campbell is the Lieutenant Governor of Alaska, a citizen of Alaska, is responsible for administering the State s election laws and controls the State of Alaska, Division of Elections. 15. Defendant State of Alaska, Division of Elections, is part of the executive branch of State government, responsible for the administration of all state elections. The State of Alaska s Illegal Policies, Practices, and Procedures Regarding the 2010 General Election 16. Defendants have enacted or administered a variety of standards, practices, and procedures with respect to voting in the Election 2010 general election for U.S. Senate (hereafter, Election ) without obtaining pre-clearance from the Department of Justice or approval from this Court. 17. First, Defendants enacted and administered a new practice of counting and accepting as valid, ballots for write-in candidates in which the candidate s name is spelled incorrectly, or otherwise is not written on the ballot as it appears on that candidate s write-in declaration of candidacy. 18. This was was neither pre-cleared by the Department of Justice nor approved through a declaratory judgment, pursuant to 42 U.S.C. 1973c(a). 19. Second, Defendants enacted and administered a new, arbitrary, discriminatory policy that calls for disparate treatment of different classes of ballots, depending on the candidate for whom the voter attempted to cast the ballot. a. Under this new policy, final, conclusive determinations regarding the validity of voted cast for candidates whose names appeared on the ballot was determined by - 4 -
automatic tally machines. Final, conclusive determinations regarding the validity of votes cast for write-in candidates was determined by Division of Elections employees in a maunaul count and review. b. Votes cast for candidates whose names appeared on the ballot were counted only if an automatic tally machine accepted them as valid and counted them. Votes cast for write-in candidates were counted regardless of the automated voting machines determinations regarding them if Division of Election employees determined they were valid in their manual count and review. c. Division of Election employees, in practice, applied much more lenient standards in determining the validity of votes than the automatic voting machines, and accepted as valid, and counted, votes that automated voting machines wouild have rejected and declined to count. d. This practice has been neither pre-cleared by the Department of Justice nor approved through a declaratory judgment, pursuant to 42 U.S.C. 1973c (a). 20. Third, Defendants have adopted and administered a practice of allowing certain voters to cast ballots without showing identification, as AS 15.15.225 previously was construed to require. a. Under AS 15.15.225, voters are required to show identification at polling places, unless they are personally known to the election official at the polling place, in which case the identification requirement may be waived. - 5 -
b. The election register at each polling place contains a space near the name of each person who signs in to vote, in which the election official must mark whether the voter showed identification, or instead was excused from showing identification because he or she was personally known to the election official. c. In numerous precincts, the election register records for the majority of voters clearly show that they either presented proper identification or were personally known to an election official. According to those election registers, however, numerous other voters in those precincts neither presented identification nor were personally known to election officials, yet apparently were permitted to vote anyway, without being given questioned ballots. d. The State so far has refused to investigate these incidents or confirm whether the voters actually showed identification, thereby demonstrating its willingness to accept votes regardless of whether statutory identification requirements were satisfied, and despite official records suggesting they were not. e. This apparent practice of departing from the requirements of AS 15.15.225 and allowing people to vote despite the fact that they neither showed proper identification, nor were known to the election officials at the polling place, has been neither pre-cleared by the Department of Justice nor approved through a declaratory judgment, pursuant to 42 U.S.C. 1973c(a). - 6 -
COUNT ONE VOTING RIGHTS ACT 42 U.S.C. 1973c(a) 21. Plaintiffs re-alleged and incorporate by reference paragraphs 1 through 20, as if set forth fully herein. 22. The State of Alaska is a covered jurisdiction subject to 5 of the Voting Rights Act, 42 U.S.C. 1973c (a). See 28 C.F.R. Part 51 App.; see also 40 Fed. Reg. 49,422 (Oct. 22, 1975). 23. Defendants violated the Voting Rights Act, 42 U.S.C. 1973c (a), by adopting and administering several standards, practices and procedures with respect to voting in the 2010 general election for U.S. Senate (hereafter, Election ) without obtaining pre-clearance from the Department of Justice or approval from this Court, including but not limited to: a. a new policy of counting and accepting as valid, ballots for write-in candidates in which the candidate s name is spelled incorrectly, or otherwise is not written on the ballot as it appears on that candidate s write-in declaration of candidacy; b. a new, arbitrary and discriminatory policy, under which Division personnel are permitted to make final determinations regarding the validity of write-in votes, regardless of whether automated tally machines accepted them as valid and counted them, but the machines validity determinations are treated as conclusive and binding fro ballots cast for candidates whose names were preprinted on the ballots; and c. a practice of refusing to enforce AS 15.15.225 s requirement that voters show identification (unless previously known to precinct election workers) before casting standard ballots. - 7 -
24. Plaintiffs respectfully request injunctive and declaratory relief against these ongoing violations of the Voting Rights Act. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for: 1. An injunction, pursuant to 42 U.S.C. 1973c (a) and Allen v. State. Bd. of Elections, 393 U.S. 544 (1969), prohibiting Defendants Craig Campbell and the State of Alaska, Division of Elections from certifying results of the 2010 general election for U.S. Senate unless and until: a. Defendants reject and exclude from the certified vote totals any ballots for write-in candidates in which the candidate s name is spelled incorrectly, or otherwise is not written on the ballot as it appears on that candidate s write-in declaration of candidacy; b. Defendants review and determine the validity of all ballots according to the same standards and procedures, and base their official vote tallies on a count of the ballots determined to be valid according to those uniform standards and procedures; and c. Defendants reject and exclude from the certified vote totals any ballots cast by voters who did not show proper identification, or who were not excused from showing identification because they were personally known to an election official at the precinct polling location. 2. A declaratory judgment, pursuant to 28 U.S.C. 2201, that Defendants violated the Voting Rights Act, 42 U.S.C. 1973c (a), for the reasons set forth in Paragraph 22 of this ; - 8 -
3. Full and reasonable attorneys fees in accordance with applicable statutes, costs, and interest; and 4. Such other relief as the Court deems just and equitable. DATED at Fairbanks, Alaska, this 10 th day of December 2010. s/ Thomas R. Wickwire 2775 Hanson Road, Suite 1 Fairbanks, AK 99709-3940 Phone: (907) 474-0069 Fax: (907) 464-0069 E-mail: tom@twickwire.com ABA# 7111049-9 -