Alaska’s legally required campaign ad disclaimers do not violate the First Amendment, the state supreme court ruled Friday, deciding a six-year-old dispute between the Alaska Policy Forum and state campaign regulators.
Justice Dario Borghesan wrote the 61-page decision on behalf of the court, which ruled unanimously and upheld minor fines against APF that were issued by the Alaska Public Offices Commission five years ago.
At issue were a series of news releases, opinion pieces and a video embedded in the group’s website, all opposing ranked-choice voting.
“We uphold the agency’s decision, concluding that the cited publications had to be reported and required a ‘paid for by’ disclosure,” Borghesan wrote. “We also hold that the statutory standards are not unconstitutionally vague because they give fair notice of what kind of speech must be reported and must contain a disclosure. And we conclude that the First Amendment challenges to these laws are unavailing.”
APF organized with a variety of groups across the country to produce the video embedded in its website, the opinion notes.
“APF did not just happen to find a video on the internet and share it on social media. APF engaged in discussions with organizations around the country to create a national coalition that developed or gathered content on ranked-choice voting and allowed APF to republish that content. Such efforts required significant time, and someone paid for that time. Alaskans have a genuine interest in knowing who,” the opinion states.
The case dates from 2020, when Alaskans voted to approve Ballot Measure 2.
That measure installed open primary elections, required disclosure of some political donations and installed ranked-choice voting in general elections.
That system remains in place today but has been challenged by a new repeal initiative. A prior repeal effort failed in 2024.
In September 2020, Alaskans for Better Elections, a group that supports the current voting system, filed a complaint with the commission, stating that APF was violating state law because its statements on ranked-choice voting did not list their three top contributors, something required for campaign communications.
APF contended that its statements were about ranked-choice voting in general, not about Ballot Measure 2 in particular, because they didn’t specifically name the Alaska measure.
APOC commissioners disagreed and cited APF, requiring it to file disclosure forms but waiving fines. APF appealed to Superior Court Judge Frank Pfiffner, who ruled in the commission’s favor, finding that the commission “reasonably concluded that APF’s activities amounted to an express communication that was an exhortation to vote against (Ballot Measure 2).”
Pfiffner rejected technical arguments against the commission’s actions, the argument that state laws were improperly vague, the idea that the First Amendment gave APF a right to publish its material without a disclosure, and APF’s challenge to a state law that requires political groups to disclose contributions starting with the “first dollar” they spend.
Individuals are not subject to the same disclosure requirement.
APF appealed to the Supreme Court, which heard oral arguments in September 2023 and ruled more than two years later.
In Friday’s order, Borghesan repeatedly refers to past rulings by the 9th U.S. Circuit Court of Appeals, which holds jurisdiction over Alaska.
Relying on that precedent, the court concluded that given the context and language of APF’s communications, there was no other way to view them than as urging a particular vote in the 2020 campaign.
“In the context of an upcoming election in which ranked-choice voting is on the ballot,” Friday’s order states, a “video’s reference to a ‘push’ by ‘interest groups’ for ranked-choice voting and its call to ‘SAY NO TO RANKED CHOICE VOTING’ is a clear, albeit indirect, reference to voting against the Initiative.”
The Alaska Supreme Court’s ruling could be appealed to the U.S. Supreme Court.
“APF is disappointed by the decision,” said attorney Stacey Stone, who represented the group in court. “The ruling allows the state to treat protected educational speech about public policy as regulated campaign activity. That approach threatens to chill core First Amendment expression. We are reviewing the opinion carefully and evaluating our options.”
Attorney Scott Kendall represented Alaskans for Better Elections.
“Alaskans for Better Elections has been focused on campaign finance transparency since its founding. This victory affirms those values,” he said, explaining that the group is “very pleased with this outcome.”
Kendall noted that Alaskans have an interest in knowing who is funding ads in their elections.
“Hopefully, the Policy Forum will now comply with the law and disclose its donors, as it should have done years ago,” he said.