Alaska drops voter misconduct charges against American Samoa residents after court ruling

ANCHORAGE, Alaska -- Alaska prosecutors are dropping voter misconduct cases against a group of residents born in American Samoa after a state appeals court threw out felony charges against a woman who wrongly checked a box saying she was a U.S. citizen.

The state’s Department of Law announced the decision Friday, after a three-judge Court of Appeals panel ruled a week earlier that state law requires proof that defendants who erroneously filled out voter registration forms had a “consciousness of wrongdoing” and intended to break the law.

The panel found flaws with a state trooper’s questioning of Tupe Smith, the woman involved in the case that was thrown out, as well as with the grand jury process that led to her indictment. It overturned a lower court’s decision that had kept the charges against her alive.

Acting Alaska Attorney General Cori Mills said in a statement that after reviewing the decision and applying the facts, prosecutors concluded that they could not prove cases against Smith and the others beyond a reasonable doubt. Her husband, Michael Pese, had also been charged.

“We respect the role of the courts in interpreting Alaska law and will faithfully execute our duty to apply the law and carefully evaluate our prosecutorial decisions,” Mills said.

In a statement last week, Smith’s lawyer Whitney Brown heralded the Court of Appeals decision, saying it “establishes an important safeguard against imposing felony liability for an honest mistake.”

The court “made clear that Alaska law requires more than simply showing that a statement was false — the State must prove a person acted with a consciousness of wrongdoing,” Brown said. “That distinction makes a world of difference to Ms. Smith and helps ensure that Alaska’s voter-misconduct statute is applied as the legislature intended going forward.”

Neil Weare, part of the legal team representing Smith and Pese, said Saturday that the decision to drop charges “raises questions about why this prosecution was even brought to begin with.”

“It’s clear that all along, they really had no evidence of any consciousness of wrongdoing on the part of Michael, Tupe or the other defendants,” said Weare, co-director of the nonprofit Right to Democracy.

In all, 11 people from the small community of Whittier, about 50 miles (80 kilometers) southeast of Anchorage, were charged with falsely claiming U.S. citizenship either when registering or trying to vote. Messages seeking comment were left for their lawyers.

American Samoa is the only U.S. territory where residents are not automatically granted citizenship by being born on American soil and instead are considered U.S. nationals. Paths to citizenship exist, such as naturalization, though that process can be expensive and cumbersome.

American Samoans can serve in the military, obtain U.S. passports and vote in elections in American Samoa, but they cannot hold public office in the U.S. or participate in most U.S. elections.

Smith was arrested after winning election to a regional school board in 2023. She has said she relied on erroneous information from election officials in Whittier when she identified herself as a U.S. citizen on voter registration forms.

Smith said she marks herself as a U.S. national on paperwork. But when there was no such option on voter registration forms, she was told by city representatives that it was appropriate to mark herself as a citizen, according to court papers.

Prosecutors contended that Smith falsely and deliberately claimed citizenship, pointing to warnings on voter registration forms she filled out in 2020 and 2022 that noncitizens “are not eligible to vote.”

The Court of Appeals panel said in its ruling that toward the end of a police interview, a state trooper asked Smith “a long compound question that implied that Smith actually knew she was not eligible to vote” but wanted to be involved in the school board.

When Smith, whose native language is not English, did not respond right away, another state trooper clarified, “He’s asking you,” and the first trooper again presented his question, which the panel describe as “a lengthy and complex statement containing four individual questions.”

Smith answered “Yes,” the panel said, leading to her arrest and indictment on two counts of felony voter misconduct.