The Alaska Court of Appeals took up the case of a Whittier woman Thursday who was indicted in 2023 on felony charges of voter misconduct.
Like others born in American Samoa, Tupe Smith is a U.S. national but not a U.S. citizen. Smith says she thought that meant she could vote in local elections but not presidential elections.
When filling out voter registration forms in the past, Smith and her lawyers say a Whittier city official told her to check a box that said she was a U.S. citizen, even though Smith knew she wasn’t, because the forms did not have a box for U.S. national.
That led to an investigation by Alaska State Troopers, who arrested Smith in late November 2023.
Voting rights advocates have linked Smith’s case – and a similar, separate case that includes some of her family members in Whittier – to national efforts by conservatives to end birthright citizenship in the United States. The advocates say the plight of people born in American Samoa highlights a group that is already being denied the right to vote.
After a grand jury indicted Smith in early 2024, her lawyers asked a Superior Court judge to toss the indictment, saying a trooper who testified to the grand jury had misled them on the issue of whether Smith intentionally checked the box saying she was a U.S. citizen.
The judge denied the request. But in a rare move, the Alaska Court of Appeals accepted Smith’s appeal before the Superior Court judge’s final decision and on Thursday heard oral arguments from one of her lawyers, as well as an attorney for the state.
Now, one of the main sticking points is whether the words “knowingly” and “intentionally” mean the same thing in regards to a person making a false statement on a voter registration form.
While some people might use the terms interchangeably, doing something “intentionally” requires a higher mental state – in legal terms, mens rea, or “guilty mind” in Latin – than doing something “knowingly.”
Smith’s attorney, Whitney Brown, told the three-judge Appeals Court panel Thursday that the words do not mean the same thing. In writing the law on voter misconduct, Brown said, the Legislature used both terms differently and therefore they should be understood differently.
“The record also reflects that if she had known she was not supposed to vote, she would not have done so,” Brown said. “So the state has just shown no evidence of an intent to mislead or deceive. So we believe that the court, in this instance, can take the extra step of just dismissing the indictment.”
The state wants the Appeals Court to send the case back to the Superior Court for a final decision. The state’s attorneys argue that the words “intentionally” and “knowingly” can mean the same thing.
“It’s not that she didn’t know what she was writing was false. It’s that she thought she was supposed to write something that she knew was false for these specific purposes, and that’s a little bit different,” Assistant Attorney General Kayla Doyle told the Appeals Court judges.
Doyle agreed with Brown that it was a difficult, but important, case. And there were multiple puns made in Thursday’s oral arguments – intended or not – about how intentional the Legislature had been in including the word “intentional” in the law on voter misconduct.
The Appeals Court will make a decision in the case at a later date, though it’s unclear when that will be.
