Final ER

Case: 20-35778, 12/01/2020, ID: 11911411, DktEntry: 27, Page 1 of 139
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
DISABILITY LAW CENTER OF

ALASKA, NATIVE PEOPLES ACTION Case No. 20-35778
COMMUNITY FUND, ALASKA PUBLIC
INTEREST RESEARCH GROUP,
ALEIJA STOVER, and CAMILLE ROSE
NELSON, Plaintiff-Appellants,
v.
KEVIN MEYER, LIEUTENANT

GOVERNOR OF ALASKA and the
STATE OF ALASKA, DIVISION OF
ELECTIONS, Defendants-Appellees.
On Appeal from the U.S. District Court for the District of Alaska
No. 20-cv-173, The Hon. Joshua M. Kindred, presiding
EXCERPTS OF RECORD
VOLUME 1 OF 1
Scott M. Kendall /s/ Jason Harrow

Samuel G. Gottstein Jason Harrow
HOLMES WEDDLE & BARCOTT, EQUAL CITIZENS
P.C. 3243B S. La Cienega Blvd.
701 West 8th Avenue, Ste. 700 Los Angeles, CA 90016
Anchorage, AK 99501 Telephone: 610-357-9614
smkendall@hwb-law.com jason@equalcitizens.us
sgottstein@hwb-law.com
Michael Donofrio
STRIS & MAHER LLP
28 Elm St., 2d Fl.
Attorneys for Plaintiffs- Montpelier, VT 05602
Appellants michael.donofrio@strismaher.com
December 1, 2020
INDEX
Page
1. Order Denying Motion For Preliminary Injunction,

Docket No. 36 (filed Sept. 3, 2020) ................................................... 3
2. Transcript of Hearing
Docket No. 42 (held Aug. 25, 2020) ................................................ 25
3. Declaration of Josh Applebee

Docket No. 25 (filed Aug. 3, 2020) .................................................. 75
4. Declaration of Gail Fenumiai

5. Declaration of Anne Zink

6. Affidavit of Scott M. Kendall

Docket No. 14 (filed July 22, 2020) ................................................ 89
7. June 17, 2020 mailing to certain Alaska voters

8. June 29, 2020 letter of Matt Claman

9. Amended Complaint
Docket No. 8-1 (filed July 22, 2020) ............................................... 98
10. Notice of Appeal

Docket No. 37 (filed Sept. 4, 2020) ............................................... 129
11. District Court Docket Sheet

(as of Nov. 27, 2020) ...................................................................... 131
2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

ALASKA; NATIVE PEOPLES
ACTION COMMUNITY FUND; Case No. 3:20-cv-00173-JMK
ALASKA PUBLIC INTEREST
RESEARCH GROUP; ALEIJA
STOVER; and CAMILLE ROSE ORDER
NELSON, DENYING MOTION
FOR PRELIMINARY INJUNCTION
Plaintiffs,
vs.
KEVIN MEYER, Lieutenant Governor

of Alaska; and STATE OF ALASKA,
DIVISION OF ELECTIONS,
Defendants.
This matter is before the Court on Plaintiffs’ motion for preliminary
injunction. 1 Defendants oppose the motion. 2 Plaintiffs filed a reply. 3 On August 25, 2020,
the Court held a hearing and heard oral argument on this motion. The Court has carefully
considered the arguments raised by the parties. For the reasons set forth below, Plaintiffs’
motion is DENIED.
1
Docket 12.
2
Docket 22.
3
Docket 28.
Case 3:20-cv-00173-JMK Document 36 Filed 09/03/20 Page 1 of 22 ER-3

I. INTRODUCTION
A. Motion Presented
Plaintiffs ask this Court for an order requiring Defendants to “immediately
mail absentee ballot applications to all registered Alaskan voters who have not yet received
one.” 4 Defendants argue that Plaintiffs are not entitled to preliminary injunctive relief on
this matter because they have not met their burden to establish irreparable harm, that the
balance of equities and the public interest weighs in their favor; or that they are likely to
succeed on the merits, or even raise serious questions going to the merits. 5
B. Background Facts
The parties largely agree on the background facts in this case. The global
pandemic caused by the COVID-19 illness has significantly affected life in Alaska since
at least March 2020. Not long after then, public health officials, in coordination with
government leaders, continuously have implemented restrictions on community,
economic, and social activity with the aim of limiting person-to-person contact in order to
slow the spread of COVID-19.
Every aspect of life outside the home—from grocery shopping, to classroom
learning, to daily employment—has had to evolve. In response to this new reality,
Defendants Alaska Division of Elections (“the Division”) and Lt. Governor Kevin Meyer
(collectively, “Defendants”) have made decisions and taken action regarding the upcoming
2020 state elections.
4
Docket 13 at 40.
5
Docket 22 at 26–29.
Disability Law Center of Alaska, et al. v. Meyer, et al. Case No. 3:20-cv-00173-JMK
Order Denying Motion for Preliminary Injunction Page 2
Alaska’s legislature and the U.S. Congress have passed legislation to address
and provide funds for the State’s COVID-19 responses. 6 Congress earmarked $3 million
for Alaska’s elections via the CARES Act. 7 The Alaska Legislature, in SB 241, authorized
conducting the entirety of the elections by mail, but, as Defendants note, did not require
it. 8 Defendant Lt. Governor Meyer decided that while the State would still maintain in-
person voting in 2020 elections, he would increase efforts and outreach for absentee voting,
or vote by mail. 9
Defendants list precautions taken during the pandemic in their response in
opposition 10 to the motion for preliminary injunction:
Staff are working hard to assure the primary and general

elections run smoothly and meet the various critical deadlines
set forth in state law. To this end, in addition to facilitating the
many diverse voting options and procedures outlined above,
the Division has arranged for social distancing, masks, gloves,
and sanitizing in over 440 polling places around the state;
recruited election workers to staff those polling places in a year
when far fewer people are willing to serve in this role; created
new distanced training to avoid unnecessary exposure for
smaller communities and its employees; and already processed
an unprecedented number of absentee ballot applications. At
the same time, the Division is adjusting its internal workplace
protocols to protect the safety of Division employees and poll
workers. In addition, and in order to help mitigate the risk to
Alaskans, the Lieutenant Governor explored ways to increase
absentee voting while not overwhelming the administrative
capacity of the Division of Elections. To that end, in May 2020
he decided to supplement the Division’s new online absentee
ballot application system with an additional absentee voting
6
Alaska SB 241; U.S. Congress Coronavirus Aid, Relief, and Economic Security Act (“CARES
Act”).
7
Docket 13 at 4.
8
Docket 22 at 7.
9
Dockets 13 at 7; 22 at 7–8.
10
Docket 22.
outreach effort, mailing voters aged 65 and older a paper

absentee ballot application form. 11
Plaintiffs, who are and represent individuals under the age of sixty-five that
also may face high-risk complications from COVID-19, including rural Alaskan residents
with decreased access to robust medical treatment facilities, say that Defendants’ decision
to mail paper absentee ballot application forms only to senior citizen voters is
discriminatory and harmful to them. Defendants justify their decision because only voters
age 65 and older are (1) known to be high-risk as a group, and (2) can be identified from
information that the Division already possessed.
II. STANDARD OF REVIEW
A. Preliminary Injunctions
“A preliminary injunction is an extraordinary remedy never awarded as of
right.” 12 As articulated in Winter, the moving party must establish each of the following:
(1) that they are likely to succeed on the merits; (2) that they are likely to suffer irreparable
harm in the absence of preliminary relief; (3) that the balance of equities tips in their favor;
and (4) that an injunction is in the public interest. Id. However, the Ninth Circuit does
afford a certain level of malleability to this four-prong test. 13 In other words, a court is
permitted to issue a preliminary injunction when the moving party has effectively raised
“serious questions on the merits,” as opposed to the more arduous burden of establishing a
likelihood of success on the merits, so long as the balance of hardships tips sharply in the
11
Id. at 7–8.
12
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).
13
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134–35 (9th Cir. 2011).
their favor and they satisfy the other two Winter prongs. 14 Regardless of whether the court
chooses to adopt a sliding-scale approach, the moving party must “make a showing on all
four prongs” of Winter to obtain a preliminary injunction. 15 Ultimately, “[a] preliminary
injunction . . . should not be granted unless the movant[s], by a clear showing, carr[y] the
burden of persuasion.’” 16
B. Mandatory Versus Prohibitory Injunctions
It also is important to note that a preliminary injunction can take two forms.
A prohibitory injunction prohibits a party from taking action and “preserve[s] the status
quo pending a determination of the action on the merits.” 17 A mandatory injunction “orders
a responsible party to ‘take action.’” 18 A mandatory injunction “‘goes well beyond simply
maintaining the status quo [p]endente lite [and] is particularly disfavored.’” 19 In cases such
as this one, where a party seeks a mandatory injunction that goes well beyond maintaining
the status quo, courts should be extremely cautious. 20 When a mandatory preliminary
injunction is requested, the district court should deny such relief “‘unless the facts and law
clearly favor the moving party.’” 21
14
Id. at 1135.
15
Id.
16
Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (emphasis in original) (quoting Mazurek
v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam)).
17
Chalk v. U.S. Dist. Court, 840 F.2d 701, 704 (9th Cir. 1988); see also Heckler v. Lopez, 463 U.S.
1328, 1333 (1983) (a prohibitory injunction “freezes the positions of the parties until the court can hear the
case on the merits”).
18
Meghrig v. KFC W., Inc., 516 U.S. 479, 484 (1996).
19
Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1980) (quoting Martinez v. Mathews,
544 F.2d 1233, 1243 (5th Cir. 1976)).
20
Martin v. Int’l Olympic Committee, 740 F.2d 670 (9th Cir. 1984).
21
Anderson v. United States, 612 F.2d at 1114.
C. Purcell Doctrine
The right to vote is a foundational and fundamental right, but a federal court
cannot and should not interfere in a state election absent serious and compelling
justification. 22 Federal courts are “required to weigh, in addition to the harms attendant
upon issuance or nonissuance of an injunction, considerations specific to election cases.” 23
There are several aspects to litigation relating to election processes that require restraint
from the court: (1) the fact-intensive character of disputes regarding election
administration; (2) the democratic values at stake, which often are accompanied by
impassioned partisan animus; and (3) the procedural posture, which often necessitates
expedited consideration of an incomplete record. “Court orders affecting elections,
especially conflicting orders, and themselves result in voter confusion and consequent
incentive to remain away from polls. As an election draws closer, that risk will increase.”
The Supreme Court has repeatedly emphasized that district courts “should ordinarily not
alter the election rules on the eve of an election.” 24
D. Anderson/Burdick Framework 25
In evaluating voting schemes, the Court “must first consider the character
and magnitude of the asserted injury.” 26 The Court “then must identify and evaluate the
precise interests put forward by the State as justifications for the burden imposed by its
22
Reynolds v. Sims, 377 U.S. 533, 555, 585 (1964).
23
Feldman v. Arizona Sec’y of State’s Office, 843 F.3d 366, 367–68 (9th Cir. 2016) (citing Purcell
v. Gonzalez, 549 U.S. 1, 4 (2006)).
24
Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020); see also
Short v. Brown, 893 F.3d 671, 676 (9th Cir. 2018).
25
Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992).
26
Celebrezze, 460 U.S. at 789.
rule. In passing judgment, the Court must not only determine the legitimacy and strength
of each of those interests; it also must consider the extent to which those interests make it
necessary to burden the plaintiff’s rights. Only after weighing all these factors is the
reviewing court in a position to decide whether the challenged provision is
unconstitutional.” 27 While the State’s “reasonable, nondiscriminatory restrictions” usually
can be justified by important regulatory interests, strict scrutiny is required for more serious
burdens. 28
III. ANALYSIS
Although there is a heightened standard applicable in this matter, the prudent
analytical path begins with an analysis of the four Winter prongs that Plaintiffs must
establish.
A. Whether an Injunction is in the Public Interest
The Court begins with the fourth prong: whether Plaintiffs have established
that an injunction is in the public interest. Plaintiffs initially assert that the State has
repeatedly and consistently advocated for the avoidance of public gatherings in an attempt
to curb the spread of COVID-19. In a vacuum, that contention appears to be correct.
However, rather than weave that assertion into part of a detailed legal argument, Plaintiffs
simply conclude: “[t]hus, the public interest tips strongly in favor of providing every
Alaskan assistance in voting by absentee ballot, which will allow Alaskans to express their
27
Id. at 789.
28
Burdick, 504 U.S. at 434.
voices while also protecting one another from potential exposure to COVID-19.”29
Analysis of what may or may not be in the public interest requires a more thoughtful
consideration of context and nuance. The State acknowledges that its aim is to safely
conduct an election in the midst of a global and grave pandemic. Understandably, the State
and its citizens are concerned about the potential risks associated with voting in person.
While the Court knows rational people can agree that protecting the safety of the electorate
is a worthy endeavor, the State also must consider the logistical realities of conducting an
election. Specifically, and as described above, the State has implemented a number of
policies—to not only mitigate the risk to voters, but also to ensure that the State’s election
apparatus is well-equipped to navigate the logistical burdens of conducting so much of a
statewide election exclusively by mail.
While Plaintiffs are correct that reducing the number of individuals who vote
in person is important for limiting the spread of COVID-19, they ultimately fail to provide
any legal argument in support of the proposition that the public interest is served by that
alone. Furthermore, Plaintiffs appear to either ignore the other aspects of conducting a
state-wide election that the State must balance with its attempts to limit the spread of
COVID-19, or they dismiss the rationale provided by the State. Importantly, Plaintiffs
minimize the reality that the State already has provided a path to mail-in voting to all
Alaskans, and that remains true regardless of whether this Court were to grant a preliminary
injunction. In other words, the public interest is served by the State extending the ability
29
Docket 13 at 39.
to vote by mail to all registered voters. It is less clear that providing written absentee
applications to every voter is in the public interest given the State’s reasonable concerns
regarding its ability to efficiently process written applications to vote by mail.
Plaintiffs bear the burden of establishing that the preliminary injunction
sought is in the public interest. 30 Plaintiffs cannot meet that burden merely by providing
the Court what amounts to a platitude and conclusory statement. It is not the role of this
Court to create theories or legal arguments as to why the public interest might be served by
granting the injunction, nor would it be proper.
In our adversary system, in both civil and criminal cases, in the

first instance and on appeal, we follow the principle of party
presentation. That is, we rely on the parties to frame the issues
for decision and assign to courts the role of neutral arbiter of
matters the parties present. 31
Thus, this Court cannot find that Plaintiffs have met their burden of
persuasion that the preliminary injunction is in the public interest.
B. Balance of Equities
Assuming, arguendo, that Plaintiffs could establish that the preliminary
injunction is in the public interest, this Court’s analysis naturally would flow into the third
prong: “balance of equities.” As provided in Winter, a “preliminary injunction is an
extraordinary remedy never awarded as of right . . . ” and this Court “must balance the
30
See, e.g., DISH Network Corp v. F.C.C., 653 F.3d 771, 776 (9th Cir. 2011).
31
See Greenlaw v. United States, 554 U.S. 237, 243–44 (2008).
competing claims of injury and consider the effect of granting or withholding the requested
relief, paying particular regard to the public consequences.” 32
Here, Plaintiffs rightly and passionately point to the importance of Alaskans’
ability to vote by mail during a global pandemic. However, again, Plaintiffs fail to provide
any detailed factual or legal argument that supports their contention that the balance of
equities tips in their favor. Rather, Plaintiffs simply conclude that the facts, “coupled with
the right every Alaskan voter has to an absentee ballot, means the balance of hardships tips
sharply in [their] favor.” 33
This conclusory statement is not only wanting, but appears to this Court to
be fatally flawed. First, it views the balance of hardships in a selective and convenient
vacuum, conducting the balancing exercise without due consideration of Defendants’
perspective. Furthermore, Plaintiffs missed an opportunity to remedy this deficiency in
their reply, instead reducing Defendants’ articulation of hardship as speculative. 34 Second,
and perhaps more damning, Plaintiffs misstate the purported harm. Every voter does have
the right to an absentee ballot. Nothing about Defendants’ actions that give rise to this
litigation alters the ability for all Alaskans to vote by mail. Nor do Defendants’ actions
alter the fact that all Alaskans must apply to exercise their right to vote by mail.
Defendants express a compelling, practical concern regarding the Division
of Elections’ ability to effectively process high volumes of paper applications as
32
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7.
33
Docket 13 at 38; see Docket 28 at 22–23.
34
Docket 28 at 22–23.
justification for preferring that the majority of Alaskans utilize the online application
apparatus. Plaintiffs fail to meaningfully counter that position, and instead claim that this
concern could be addressed by Defendants adopting a different policy approach. Even if
that were true, however, courts must give deference to the professional judgment of States
concerning the prudence or efficacy of its approach to conducting elections. 35 Given all
these considerations, Plaintiffs cannot establish that the balance of equities favors granting
a preliminary injunction.
C. Likelihood of Success on the Merits
Even though Plaintiffs have failed to establish that their claims satisfy either
the public interest or balance of equities prongs, this Court still is compelled to examine
the first Winter prong: likelihood of success on the merits. 36 For the upcoming election,
all Alaskans eligible to vote: (1) are permitted to vote by mail; (2) must fill out an
application to vote by mail; and (3) can choose among several methods to apply to vote by
mail, including options to complete an online or paper application. Plaintiffs contend that
the State action here, providing Alaskans age sixty-five and older with a written absentee
ballot application, warrants strict or heightened scrutiny.
35
See U.S. CONST. art. I § 4; see also McDonald v. Bd. Of Election Comm’rs of Chicago, 394
U.S. 802, 809 (1969).
36
Although Plaintiffs put forward six separate claims in their opening brief, Plaintiffs “no longer
seek preliminary injunctive relief with respect to their claims under the [Americans with Disabilities Act]
and 52 U.S.C. § 10502,” and, accordingly, this Court will not contemplate the likelihood of success on the
merits for those two claims.
To support this claim, Plaintiffs cite to Reynolds v. Sims 37 and Miller v.
Treadwell. 38 However, each of those cases is immediately distinguishable from the present
matter. In Reynolds, the Supreme Court considered an equal protection claim relating to a
state’s legislative apportionment arrangement, or, in other words, a state action that served
to dilute the votes of certain voters. In Miller, the Alaska Supreme Court upheld a
challenge to the manner in which the State considered and tallied write-in votes, or, in other
words, the possibility that certain Alaskans would be denied the vote they had submitted. 39
While both cases do stand for the proposition that “the right of the citizens to cast their
ballots and thus participate in the selection for those who control their government is one
of the fundamental prerogatives of citizenship,” 40 neither case necessarily suggests that this
Court apply strict scrutiny in the present matter.
More importantly, judicial analysis in the realm of election litigation is not a
binary construct. The Supreme Court has established and maintained that a deferential
analysis of electoral logistics typically is appropriate because, “as a practical matter, there
must be substantial regulation of elections if they are to be fair and honest and if some sort
of order, rather than chaos, is to accompany the democratic processes.” 41 This Court must
be cautious and acknowledge that subjecting every voting regulation or methodology to
strict scrutiny and, thus, requiring that the regulation be narrowly tailored to advance a
37
377 U.S. 533 (1964).
38
245 P.3d 867 (Alaska 2010).
39
Miller v. Treadwell, 245 P.3d 867, 868 (Alaska 2010) (quoting Carr v. Thomas, 586 P.2d 622,
625 (Alaska 1978).
40
Miller v. Treadwell, 245 P.3d at 868 (citing Carr v. Thomas, 586 P.2d at 626 (quoting Sanchez
v. Bravo, 251 S.W.2d 935, 938 (Tex. Civ. App. 1952)).
41
Storer v. Brown, 415 U.S. 724, 730 (1974).
compelling state interest “would tie the hands of States seeking to assure that elections are
operated equitably and efficiently.” 42 Fortunately, courts have adopted an approach that
offers the appropriate malleability to navigate challenges relating to the administration of
elections. The Anderson-Burdick framework prescribes a sliding-scale methodology,
where the degree of scrutiny is a product of the “character and magnitude” of the burden
on voting rights. 43 Accordingly, actions that serve to effect a severe burden on the right to
vote will be subject to strict scrutiny, whereas actions that impose tempered or minimal
burdens on the right to vote will be subject to a lenient rational-basis scrutiny. 44
Before considering Plaintiffs various claims, and whether they are likely to
succeed on the merits, this Court must attempt to quantify the nature or severity of the
burden on voting rights in this case. Although the term “severe” is not clearly defined in
the context of the judicial review of electoral mechanics, the Court can garner a better sense
of the types of actions that have been described as severe or not severe and make natural
and objective comparisons to the present matter. Starting with Burdick, involving a
challenge to Hawaii’s ban on write-in ballots, the court determined that the ban was
constitutional, and that such a burden was both “limited” and “slight.” 45 In doing so, the
Burdick court highlighted that “the function of the election process is “to winnow out and
finally reject all but the chosen candidates,” not to provide a means of giving vent to “short-
42
Celebrezze, 460 U.S. at 788.
43
Id.; Burdick, 504 U.S. 428; see also McClure v. Galvin, 386 F.3d 36, 41 (1st Cir. 2004) (“[T]he
Supreme Court has suggested something of a sliding scale approach and has noted that there is no ‘bright
line’ to separate unconstitutional state election laws from constitutional ones.”) (quoting Timmons v. Twin
Cities Area New Party, 520 U.S. 351, 350 (1997)).
44
Burdick, 504 U.S. at 434 (quoting Celebrezze, 460 U.S. at 789).
45
Id. at 438–39.
range political goals, pique, or personal quarrel[s].” Attributing to elections a more
generalized expressive function would undermine the ability of States to operate elections
fairly and efficiently.” 46 In Timmons v. Twin Cities Area New Party, the court subjected a
Minnesota ban on fusion candidates to a flexible standard. 47 Similarly, in Storer v. Brown,
the court evaluated under a flexible standard a California law that required independent
candidates to have disaffiliated from a political party at least one year before running as an
independent. 48 Compare that to Dunn v. Blumstein, where the court applied a higher
standard of review in invalidating a Tennessee law that required a would-be voter to have
been a resident for a year in the state and three months in the county. 49
Understandably, courts also have treated cases involving burdens and
abridgments different than those that directly impact the right to vote itself. For the former,
courts have almost exclusively applied a lesser standard of analysis. For example, in
Crawford v. Marion County Election Bd., the Seventh Circuit weighed the justifications of
early voting restrictions against the First and Fourteenth Amendment rights of the
plaintiffs. 50 On review, the Supreme Court, considering both equity and efficiency, agreed
that the Anderson-Burdick framework dictated that the legislation in question did not
46
Id. at 438 (citation omitted) (quoting Storer v. Brown, 415 U.S. at 735).
47
520 U.S. 351 (1997). Electoral fusion is an arrangement where two or more political parties
support a common candidate in hopes of pooling the votes so that all those parties may secure a controlling
majority.
48
Storer v. Brown, 415 U.S. at 736.
49
405 U.S. 330 (1972).
50
472 F.3d 949 (7th Cir. 2007).
warrant strict scrutiny. 51 Which brings this Court to two cases that arguably are the most
similar to the present matter: Texas Democratic Party v. Abbott 52 and Short v. Brown. 53
In Texas Democratic Party, the Fifth Circuit considered a challenge to the
state regarding its approach to voting by mail during the COVID-19 pandemic. Although
there were a number of procedural and rhetorical complexities, at its core, the plaintiffs
claimed that Texas’s rules for voting by mail discriminated by age in violation of equal
protection and the Twenty-Sixth Amendment. 54 Texas provides those aged sixty-five and
older with the option to vote by mail, 55 and prohibits anyone under the age of sixty-five
from voting by mail absent presenting a valid justification. Similarly, the plaintiffs sought
a preliminary injunction, which the District Court granted. The Fifth Circuit reversed. In
doing so, the court attempted to quantify the alleged harm as the precursor to determining
the appropriate level of judicial scrutiny. While the court recognized that only allowing
residents age sixty-five and older to vote by mail facially discriminated on the basis of age,
the court concluded that strict scrutiny was not appropriate. The court relied heavily on
McDonald v. Board of Election Commissioners of Chicago, which involved an Illinois
statute that denied certain inmates mail-in ballots. 56 The McDonald court noted that
restrictions related to absentee ballots did not restrict the right to vote, because the inmates
in question possessed alternative methods of voting. As result, the McDonald court applied
51
Id. at 204.
52
961 F.3d 389 (5th Cir. 2020).
53
893 F.3d 671 (9th Cir. 2018).
54
Texas Democratic Party, 961 F.3d at 395.
55
Texas Election Code § 82.003.
56
394 U.S. 802 (1969).
a rational-basis review and upheld the absentee voting restriction. Of particular import, the
court noted that the state “need not run the risk of losing an entire remedial scheme simply
because it failed, through inadvertence or otherwise, to cover every evil that might
conceivably have been attacked.” 57 Resting on the shoulders of McDonald, the Fifth
Circuit concluded that the state “ha[d] a proper interest in helping older citizens to vote,
and its decision to permit them to do so by mail is a rational way to satisfy that “laudable
state policy.” 58 Furthermore, the Circuit Court opined that “[i]f anything, [COVID-19’s]
existence proves the reasonableness of Texas’s approach, given that older persons have a
greater risk of becoming seriously ill or dying from it, as the record demonstrates.” 59
In Short v. Brown, the Ninth Circuit considered a challenge to a California
scheme that permitted voters in some counties to receive a mail-in ballot automatically,
while simultaneously requiring voters in other counties to register to receive a mail-in
ballot. 60 In that case, the Ninth Circuit upheld the District Court’s denial of the plaintiff’s
motion for a preliminary injunction. 61 In doing so, the court first looked to the Anderson-
Burdick framework to determine the applicable level of scrutiny. The court noted that the
California approach made it “easier for some voters to cast their ballots by mail,” but that
the right to vote by mail already existed for all voters. 62 Perhaps most importantly, the
court concluded that “[t]o the extent that having to register to receive a mailed ballot could
57
Id. at 809.
58
Texas Democratic Party, 961 F.3d at 406 (quoting McDonald, 394 U.S. at 811).
59
Id.
60
893 F.3d 671, 676 (9th Cir. 2018).
61
Id. at 676.
62
Id. at 677.
be viewed as a burden, it is an extremely small one, and certainly not one that demands
serious constitutional scrutiny.” 63 The court gave weight to the fact that plaintiffs failed to
introduce evidence that the state action would prevent anyone from voting and that
plaintiffs failed to cite to “any authority explaining how a law that makes it easier to vote
would violate the Constitution.” 64
Based on the relevant case law, this Court can arrive at only one conclusion:
the burden imposed by Defendants’ actions in this matter do not warrant strict scrutiny.
(1) Defendants’ discriminatory mailing violates the Twenty-Sixth

Amendment of the United States Constitution
The Twenty-Sixth Amendment provides:
The right of citizens of the United States, who are eighteen

years of age or older, to vote shall not be denied or abridged by
the United States or by any State on account of age.
At the foundation of Plaintiffs’ Twenty-Sixth Amendment claim is that
Defendants’ actions abridged the right to vote for Alaskans between the age of eighteen
and sixty-four. It is crucial for this Court to first consider whether the Twenty-Sixth
Amendment is implicated.
Given the fact that all Alaskan registered voters, regardless of age, possess
the ability to vote either in person and by mail, it is clear that Defendants have not denied
the “right to vote” in violation of the Twenty-Sixth Amendment. Thus, this Court must
consider whether Defendants’ actions intend to, or in practice do, “abridge” the right to
63
Id.
64
Id. at 677–78.
vote. To “abridge” means to “curtail, lessen, or diminish; to reduce the extent or scope
of.” 65 Congress, through the Voting Rights Act, has defined “denial or abridgement” as
when voting is “not equally open to participation by members of a class of citizens . . . in
that its members have less opportunity than other members of the electorate to participate
in the political process and to elect representatives of their choice.” 66 Here, Defendants’
act of sending paper ballot applications to older voters, while doing nothing that would
impede the present ability of voters under age sixty-five to apply for a vote-by-mail ballot,
cannot reasonably be construed as an abridgment. Given that this Court is not convinced
that any Alaskan’s rights have been abridged, it also must conclude that Plaintiffs’ Twenty-
Sixth Amendment claim does not constitute a claim that is likely to succeed on its merits.
(2) Defendants’ discriminatory mailing violates equal protection under the

United States and Alaska Constitutions
Here, Plaintiffs seem to acknowledge the applicability of the Anderson-
Burdick framework, and appear to accept that Defendants’ actions might not constitute a
severe burden. 67 But, then, without citing any cases directly on point, Plaintiffs conclude
that Defendants’ asserted interest simply is illegitimate. Specifically, Plaintiffs claim that
there is “no legitimate state interest in choosing a single age cohort to assist in voting while
leaving out all other cohorts who are equally vulnerable and equally eligible to vote by
mail.” 68 This Court takes issue with several aspects of those contentions.
65
OXFORD ENGLISH DICTIONARY (3d ed. 2009).
66
52 U.S.C. § 10301(b).
67
The Anderson-Burdick framework applies equally to Plaintiffs’ claims under both the U.S. and
Alaska Constitutions. See Sonneman v. State, 969 P.2d 632, 636–38 (Alaska 1998).
68
Docket 13 at 24.
First, Plaintiffs’ suggestion that Defendants arbitrarily selected one age
group is contradicted both by the facts in this case and by Plaintiffs’ own briefing.
Plaintiffs repeatedly reference the Center for Disease Control (“CDC”) findings that “risk
increases with age and the presence of certain underlying medical conditions.” 69 As
relevant here, the CDC posts its COVID-19 related data for public consumption, and that
data indicated that death rates are 90 times higher for individuals aged 65–74, 220 times
higher for individuals aged 75–84, and 630 times higher for individuals aged 85 and
older. 70 Thus, it is disingenuous to suggest that Defendants selected people age 65 and
older arbitrarily, or that all other age groups are equally vulnerable. Plaintiffs fairly point
to those Alaskans who possess an underlying medical condition that might make them more
vulnerable to COVID-19. Understandably, however, Defendants are not in a position
where they can readily, easily, or confidently identify Alaskans who might qualify under
that criteria.
Furthermore, it is important to note that, given that the burden is so slight—
that is, voters under 65 must procure an absentee ballot application on their own initiative,
either via the internet, or some other way—Defendants’ general interest in protecting an
easily and readily identifiable vulnerable class of Alaskans is objectively rational. 71
Expecting perfection in the State’s voting approach or methodology when conducting a
69
Id. at 6.
70
https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-discovery/hospitalizatio
n-death-by-age.html.
71
See Burdick, 504 U.S. at 434, 439–40; cf. McDonald, 394 U.S. at 809 (observing that under
rational basis review, “a legislature traditionally has been allowed to take reform ‘one step at a time,
addressing itself to the phase of the problem which seems most acute to the legislative mind’”).
general election in the midst of a novel and evolving global pandemic suggests an
impossible and unrealistic standard. Courts should “permit[] states to serve ‘as laboratories
for experimentation to devise various solutions where the best solution is far from clear.’”72
Defendants’ actions in this case do not in any way restrict individuals of any
age group from exercising the right to vote, nor do they restrict mail-in voting to any
particular age group. Given the lack of a severe or even meaningful burden, coupled with
Defendant’s legitimate endeavor to protect Alaskans who are particularly vulnerable to
COVID-19, Plaintiffs have failed to convince this Court that its equal protection claims are
likely to succeed on the merits.
(3) Defendants discriminatory mailing violates substantive due process

under the Alaska Constitution
Plaintiffs next contend that Defendants’ actions violate substantive due
process under the Alaska Constitution, noting that “[s]ubstantive due process . . . is meant
to guard against unfair, irrational, or arbitrary state conduct that shock[s] the universal
sense of justice.” 73 This Court is not convinced that any aspect of Defendants’ actions
could be fairly described as unfair, irrational, or arbitrary. On the contrary, Defendants’
actions here clearly are rational and reasoned. Plaintiffs also contend that because the right
to vote is a fundamental right, strict scrutiny applies. However, as this Court previously
has found, Defendants’ actions do not restrict any Alaskans’ right to vote. The burden here
is so minimal it almost defies precise articulation. It would be illogical under the Anderson-
72
Pub. Integrity, 836 F.3d at 1028.
73
Docket 13 at 31 (quoting Doe v. Dep’t of Pub. Safety, 444 P.3d 116, 124–25 (Alaska 2019).
Burdick framework to suggest any standard of review more stringent than rational basis.
This Court previously has concluded that Defendants’ actions are likely to survive a
rational basis review. As a result, Plaintiffs have failed to convince this Court that their
due process claims under the Alaska Constitution are likely to succeed on the merits.
D. Likelihood of Irreparable Harm Absent an Injunction
Finally, this Court considers the remaining Winter prong, the likelihood of
irreparable harm. Following the analysis above—that Defendants have not abridged the
voting rights of Alaskans under age sixty-five—Plaintiffs cannot establish that this
injunction would prevent irreparable harm to them and others. In fact, this Court heard
argument that harm would increase—Defendants noted that the Division of Elections may
be less likely to efficiently process paper vote-by-mail applications if the preliminary
injunction were granted because the State would anticipate a significant volume of
applications that it would not have the capacity to handle on the necessary timeline. The
Court is persuaded by that concern and finds that the requested injunctive remedy may
actually increase harm to Alaska’s voting process and its voters.
IV. PRELIMINARY RELIEF IS NOT WARRANTED
To echo the court in Short v. Brown, there is nothing in the Constitution,
Supreme Court precedent, or Ninth Circuit precedent that would suggest that the Court
micromanage Alaska’s election process to this degree. 74 Not only would such an approach
be counterproductive, it would disregard that “[s]tates . . . have broad powers to determine
74
893 F.3d 671, 676.
the conditions under which the right of suffrage may be exercised.” 75 No one disputes that
the right to vote is fundamental. 76 But, as described above, not all election laws impose
constitutionally suspect burdens on that right. Here, where the purported abridgment is so
slight, and the requested remedy of an affirmative injunction so extreme, it is impossible
for this Court to determine that the Winter prongs are sufficiently satisfied.
For the reasons discussed above, Plaintiff’s Motion for Preliminary
injunction is DENIED.
IT IS SO ORDERED this 3rd day of September, 2020, at Anchorage, Alaska.
/s/ Joshua M. Kindred

JOSHUA M. KINDRED
United States District Judge
75
Lassiter v. Northampton Cty. Bd. of Elections, 360 U.S. 45, 50, 79 S. Ct. 985, 3 L. Ed. 2d 1072
(1959).
76
Harper v. Va. State Bd. of Elections, 383 U.S. 663, 667 (1966).
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KEVIN G. CLARKSON
ATTORNEY GENERAL
Margaret Paton-Walsh
(AK Bar No. 0411074)
Assistant Attorney General
Department of Law
1031 West Fourth Avenue, Suite 200
Anchorage, AK 99501
Telephone: (907) 269-5275
Facsimile: (907) 276-3697
Email: margaret.paton-walsh@alaska.gov
Attorney for the State of Alaska

DISABILITY LAW CENTER OF )

ALASKA, NATIVE PEOPLES ACTION )
COMMUNITY FUND, ALASKA )
PUBLIC INTEREST RESEARCH )
GROUP, ALEIJA STOVER, AND )
CAMILLE ROSE NELSON, )
)
Plaintiffs, )
)
v. )
)
KEVIN MEYER, LIEUTENANT ) Case No. 3:20-cv-00173-JMK
GOVERNOR OF ALASKA, and the )
STATE OF ALASKA, DIVISION OF ) DECLARATION OF
ELECTIONS, ) JOSH APPLEBEE
)
Defendants. )
)
I, Josh Applebee, declare under penalty of perjury that the following is true and
correct:
1. I am the Chief of Staff for Lieutenant Governor Kevin Meyer, who controls
and supervises the Alaska Division of Elections. I have personal knowledge of the

matters described in this affidavit.
2. On July 9 and 10, 2020, the Division mailed absentee ballot applications to
all registered voters aged 65 and older. This mailing went out to 97,281 voters.
3. As the potential severity of the COVID-19 pandemic became increasingly
apparent in April of 2020, the Alaska Legislature enacted SB 241 to address many
aspects of the State’s response to the pandemic. Among other things, it authorized—but
did not require—the Division of Elections to conduct the 2020 elections entirely by mail.
2020 SLA ch. 10, § 9.
4. In evaluating whether to pursue this option, the Lieutenant Governor’s
Office and the Division of Election weighed the current state of the pandemic in Alaska,
contemporaneous scientific and medical understanding of the character of the disease—
particularly demographic groups that were thought to be especially vulnerable—and the
administrative complexity of conducting statewide elections by mail with just a few
months to prepare.
5. In April and May, when daily infection counts were still low in Alaska, the
Lieutenant Governor decided that a hasty conversion to an all-by-mail election was
inadvisable and instead looked at options for increasing absentee voting while not
overwhelming the administrative capacity of the Division of Elections.
6. To that end, the Lieutenant Governor decided to supplement the Division’s
new online absentee ballot application system with an additional absentee voting
outreach effort aimed at elderly voters, mailing voters 65 and older a paper absentee
ballot application form.
DLC, et al. v. Meyer, et al. Case No. 3:20-cv-00173-JMK

Declaration of Josh Applebee Page 2 of 5
7. The Lieutenant Governor arranged this mailing because public health
officials at the time identified people 65 and older as a high-risk group who must be
particularly careful to avoid exposure to COVID-19. Such voters may therefore wish to
avoid going to the polls, standing in close proximity, and using touch screens or handling
ballots. They may also be less comfortable using—and have more limited access to—the
online ballot application system.
8. Although the Lieutenant Governor understands that there are other high-
risk groups, the Division of Elections has access only to limited information about voters
and is not able to identify all disabled voters or all those with underlying medical
conditions that make them particularly vulnerable to COVID-19.
9. I assisted in preparing and coordinating this mailing to voters aged 65 and
older. The timeline related to the mailing was as follows:
a. On May 15, the Lieutenant Governor publicly announced that the
Division will be conducting regular elections with in-person voting on Election Day
(along with other normally available options such as absentee and early voting) rather
than hastily converting to an entirely by-mail election system.
b. On May 26, we discussed procurement options for the mailing.
c. On June 1, we learned that our mailing list would be approximately
98,500 and the approximate cost of the mailing $49,250, meaning we could use the
“request for quote” process for procurements under $100,000 (which takes 5-7 days)
instead of the longer “invitation to bid” process (which takes 3-4 weeks).
d. On June 2, a request for quotes was emailed to three vendors.

e. On June 11, in an interview with the media, the Lieutenant Governor
publicly announced the forthcoming mailing.
f. On June 19, a purchase order was submitted.
g. On June 22, the proofs of the mailing were approved.
h. On June 24, the vendor reported that it was still waiting to receive
envelopes to complete the mailing. The Division has learned through several sources that
counties and states throughout the country have run into printing supply shortage issues
because of the increased volume of voting by mail.
i. On July 8, the Division received confirmation of the mailing.
10. The estimated final cost of the mailing was $.52/piece. The quoted price for
printing was $12,608 and the postage was $37,877.55.
11. A similar mailing to all remaining registered voters in the state
(approximately 491,272 people) would cost approximately $255,461 at $.52/piece. It is
not clear whether any vendor in the state has the supplies on hand to complete a mailing
order of this size right away. And because this mailing would cost over $100,000, state
law would typically require that the procurement be arranged through the “invitation to
bid” process, which generally takes 3-4 weeks.
12. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the
foregoing is true and correct and that this declaration was executed on August 3rd, 2020.
/s/ Josh Applebee

Josh Applebee
Chief of Staff
Lt. Governor Kevin Meyer

KEVIN G. CLARKSON
ATTORNEY GENERAL
(AK Bar No. 0411074)
Department of Law
Anchorage, AK 99501
Telephone: (907) 269-5275
Facsimile: (907) 276-3697


)
Plaintiffs, )
)
v. )
)
STATE OF ALASKA, DIVISION OF ) DECLARATION OF
ELECTIONS, ) GAIL FENUMIAI
)
Defendants. )
)
I, Gail Fenumiai, declare under penalty of perjury that the following is true and
correct:
1. I am the director of the Division of Elections for the State of Alaska, and I

have personal knowledge of the matters in this declaration. I was first appointed as
director in January 2008 and had worked in the division for approximately 10 years
before my appointment. I ended my first tenure as director in July 2015 and then was
reappointed by Lieutenant Governor Kevin Meyer in January 2019.
2. The Division of Elections is working hard to make this election run
smoothly, but the COVID-19 pandemic has created many new challenges. The Division
must arrange for social distancing, masks, gloves, and sanitizing in over 440 polling
places around the state; recruit election workers to staff those polling places in a year
when far fewer people are willing to serve in this role; create new distanced training to
avoid unnecessary exposure for smaller communities and Division employees; and
process an unprecedented number of absentee ballot applications. This is all while
adjusting our own internal workplace protocols to protect the safety of Division
employees and poll workers.
3. Alaska is fairly unique among the states when it comes to voter registration
because of an initiative passed by the voters in 2016. The initiative law automatically
registers every eligible Alaskan that applies for a permanent fund dividend to vote. See
https://pfd.alaska.gov/Automatic-Voter-Registration. Since the law was passed, 78,225
Alaskans have been registered to vote by applying for the permanent fund dividend.
4. The State of Alaska also provides numerous ways for eligible Alaskans to
vote, starting with the State’s no excuse absentee ballot system. Any registered voter can
vote absentee by submitting an application starting January 1 of the year in which the
election will be held. Voters can submit absentee ballot applications in person, by mail,

Declaration of Gail Fenumiai Page 2 of 7
fax, or via electronic transmission or through a new online portal on the Division’s
website. They can request that their absentee ballot be mailed to them or delivered to
them by electronic transmission. But all absentee ballots must be returned to the Division
by mail. The absentee ballot must be postmarked on or by election day, but the Division
strongly encourages submission of the ballot before election day to ensure receipt of the
ballot within the required 10-day period following the election.
5. Paper absentee ballot application forms can be obtained by calling the
Division, emailing the Division, or picking one up from a regional office or other location
where they are available. The Division’s regional offices send election packets with voter
registration forms and absentee ballot application forms to over many locations around
the State so they are widely available. These locations include tribal offices, assisted
living homes, high schools, municipalities, and libraries.
6. In addition, absentee ballot applications are routinely distributed to voters
by the political parties, candidates, and other interest groups.
7. In addition to the historic outreach efforts mentioned in Paragraph 5, this
year the Lieutenant Governor decided to also send absentee ballot applications to all
registered voters 65 and older in light of the pandemic. Moreover, I have directed letters
with absentee ballot applications and a link to the online form be sent to voters in areas
that may struggle to have access to a polling place on polling day for various reasons,
including a lack of available poll workers. Although I am still hopeful to have all
precincts staffed with three poll workers, I want voters in those areas to be aware of the
potential lack of polling place and have information on other methods of voting.

8. For the first time this year, voters can also apply for absentee ballots online
if they have a valid state driver’s license or state identification card. Approximately
95 percent of registered voters have one of these types of identification associated with
their voter record. There is a link on the Division of Election’s home page
(https://www.elections.alaska.gov/) as well as on the State of Alaska’s homepage
(http://www.alaska.gov/). This system saves voters’ time by eliminating the need to print,
sign and mail the application and online applications can be processed faster by the
Division.
9. Processing absentee ballot applications that are received by mail takes
significantly more time both because of the transit time in the mail and because of the
added processing time. For each mailed application, an employee has to open the
envelope, date stamp the application, check that the application is complete, attempt to
decipher what is sometimes illegible handwriting, batch and scan them for processing
before sending out the ballots. If the application is incomplete or illegible, a Division
employee attempts to contact the individual to assist in completing the application. This
may sound like it does not take much time but multiply that by 30,000 or more and you
get significant processing times. On the other hand, all of this processing time is
eliminated if the voter applies online.
10. A voter can also request an absentee ballot by electronic transmission or
fax, meaning the ballot package will be sent to them by email. The ballot has to be
printed out and mailed or faxed back to the Division on or by election day. This type of
ballot transmission can be requested starting 15 days before election day and up to 5 p.m.

the day before the election.
11. There are currently 140 in-person absentee voting locations across the State
where a voter can vote one-on-one with an absentee voting official starting 15 days
before the election and up to election day. An absentee in-person voter’s ballot is placed
in an absentee ballot envelope completed by the voter, and that envelope is reviewed by
the absentee review board to determine the voter’s eligibility to vote before the ballot is
counted.
12. The State also has eight early voting sites open starting 15 days before the
election and up to the day before the election. Early voters’ eligibility to vote is
determined at the time they vote. These sites have ballots for all 40 house districts.
13. Of course, we also plan on having 441 polling places open on election day
to vote in person from 7 a.m. to 8 p.m. Unlike other states that have drastically cut down
on the number of polling places available this year, we are striving to have a similar
number of polling places available to ensure every voter can vote in the manner they are
comfortable with. In-person voting is also available on election day at the Juneau,
Fairbanks, and Anchorage airports.
14. For those voters who reside in remote areas of the state where distance,
terrain or other natural conditions deny the voter reasonable access to a polling place or
who have a disability that makes it difficult for them to vote in person, the State
designates these voters as “permanent absentee voters.” This means that, in even-
numbered years, they are mailed an absentee by-mail application. There are over 9,500
permanent absentee voters. Unless a voter notifies the Division of Elections has no way

to know which voters are disabled.
15. For those with a disability, there is a process to receive assistance with
voting in addition to the permanent absentee voting option. The voter can have a
representative request a special needs ballot starting 15 days before the election and up to
election day. The representative then delivers the ballot to the voter, witnesses the voter’s
signature, and returns the ballot to the Division of Elections. This allows the voter to cast
their vote at home.
16. As shown above, the State of Alaska offers a myriad of ways for eligible
Alaskans to exercise their right to vote. To send out paper absentee ballot application
forms to every registered voter would potentially result in major processing delays as the
Division balances putting on an in-person election, offering early voting, and offering in-
person absentee voting. The online application is far superior to the mailed application in
terms of processing times and ensuring voters get absentee ballots in a timely manner.
My goal is to ensure every voter can exercise the right to vote in the way that works best
for them and to have every vote counted. Mailing out absentee ballot applications to
everyone would upset that balance and potentially result in avoidable and preventable
issues in the election.
17. The Division has hired additional staff to process the anticipated increase in
absentee ballot applications this year, but it cannot rapidly expand its processing capacity
while maintaining the integrity of the election. Recruiting and training qualified staff
takes weeks—not days—and staff cannot work from home because they must be able to
access the Division’s secure voter database. This means that increasing the number of

staff also requires finding more temporary space so that workers can maintain proper
social distance in the workplace.
/s/ Gail Fenumiai

Gail Fenumiai
Director
State of Alaska
Division of Elections
CERTIFICATE OF SERVICE
I certify that on August 3rd, 2020, the foregoing document was served on all
parties via the CM/ECF filing system.
/s/ Margaret Paton-Walsh


KEVIN G. CLARKSON
ATTORNEY GENERAL
(AK Bar No. 0411074)
Department of Law
Anchorage, AK 99501
Telephone: (907) 269-5275
Facsimile: (907) 276-3697


)
Plaintiffs, )
)
v. )
)
STATE OF ALASKA, DIVISION OF ) DECLARATION OF ANNE ZINK
ELECTIONS, )
)
Defendants. )
)
I, Anne Zink, declare under penalty of perjury that the following is true and
correct:
1. I am the Chief Medical Officer for the State of Alaska, Department of

Health and Social Services. My job duties include providing advice and setting policy on
public health matters. I have been directly involved in monitoring and advising on the
current public health emergency caused by the global pandemic of COVID-19.
2. Our understanding of this virus is constantly evolving, including
understanding its transmissibility and what individuals are at highest risk of
hospitalization if they contract the virus.
3. The information available on the virus early in the year showed that people
who were older or who had underlying medical conditions were at higher risk for
hospitalization and death from COVID-19. The CDC used the cut off of 65 in their
messaging, while messaging that the older someone is, the higher risk they are.
4. Recently, the CDC has revised its guidance to simply indicate that the risk
for severe illness increases with age, and the most vulnerable age group is now listed as
those 85 years and older. The CDC also lists many other health conditions which can be
found here https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-
at-increased-risk.html and is updated regularly.
5. Despite the change in categorization, the CDC still reports that 8 out of 10
COVID-19 deaths in the United States have been in adults 65 years of age or older.
6. Over the course of this pandemic, other high risk groups have been
identified. These groups have also shifted over time as we learn more about the virus. For
example, asthma was initially considered to put individuals at higher risk because of the
fact that the virus attacks the lungs, but since that time, the CDC has changed this
category to say those with moderate or severe asthma may be at higher risk. The studies

Declaration of Anne Zink Page 2 of 3
have not been definitive on this subject. Another more recent example is that cancer was
not previously listed but recent data has shown that cancer does present a higher risk for
severe illness.
7. We continue to learn new information every day about this virus as well as
ways to minimize spread of the disease. The most effective ways to minimize the spread
of the disease continue to be social distancing, frequent handwashing or sanitizing, and
wearing adequate face coverings that cover the nose and mouth.
/s/ Anne Zink

Dr. Anne Zink
Chief Medical Officer
State of Alaska
Dept.of Health and Social Services
I certify that on August 3rd, 2020, the foregoing document was served on all
parties via the CM/ECF filing system.
/s/ Margaret Paton-Walsh


Declaration of Anne Zink Page 3 of 3









Scott M. Kendall
Alaska Bar No. 0405019
Samuel G. Gottstein
Holmes Weddle & Barcott, P.C.
701 West 8th Avenue, Ste. 700
Anchorage, AK 99501
Phone: 907.274.0666
Fax: 907.277.4657
smkendall@hwb-law.com
Jason Harrow
Equal Citizens
3243B S. La Cienega Blvd.
Los Angeles, CA 90016
jason@equalcitizens.us
Michael Donofrio
Stris & Maher LLP
28 Elm St., 2d Fl.
Montpelier, VT 05602
michael.donofrio@strismaher.com
Attorneys for Plaintiffs
IN THE SUPERIOR COURT FOR THE STATE OF ALASKAUNITED STATES

DISTRICT COURT

ALASKA, NATIVE PEOPLES
ACTION COMMUNITY FUND,
RESEARCH GROUP, ALEIJA
STOVER, AND CAMILLE ROSE
NELSON,
Plaintiffs,
v. Case No.: 3:20-cv-00173-JMK
STATE OF ALASKA, DIVISION OF
ELECTIONS,
Defendants.
THIRD JUDICIAL DISTRICT AT ANCHORAGE
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
Case 3:20-cv-00173-JMK Document 8-1 Filed 07/22/20 Page 1 of 35 ER-98

Exhbiit 1 - Page 1
AMENDED COMPLAINT
Plaintiffs, Disability Law Center of Alaska, Native Peoples Action
Community Fund, Alaska Public Interest Research Group, Aleija Stover, and
Camille Rose Nelson by and through their attorneys, Holmes Weddle & Barcott,
PC, and associated counsel, hereby file this complaint against defendants Kevin
Meyer, Lieutenant Governor of the State of Alaska, and the State of Alaska,
Division of Elections by stating and alleging as follows:
INTRODUCTION
HOLMES WEDDLE & BARCOTT, PC
1. This case is a challenge to the decision by the Lieutenant Governor

701 WEST EIGHTH AVENUE, SUITE 700
ANCHORAGE, AK 99501-3408
TELEPHONE (907) 274-0666
and Division of Elections (“Defendants”) to proactively mail absentee ballot

FACSIMILE (907) 277-4657
applications only to registered Alaska voters age 65 and older, while intentionally
excluding all other registered Alaska voters.
2. This case presents intentional age discrimination by Defendants
that violates the Alaska Constitution, the Twenty-Sixth Amendment to the U.S.
Constitution, and the Equal Protection and Free Speech guarantees of the U.S.
Constitution.
3. In Alaska, “a qualified voter may vote an absentee ballot for any
reason.” Alaska Stat. § 15.20.010. This March, in response to the pandemic
caused by COVID-19, the Legislature recognized that there would be a
Complaint for Declaratory and Injunctive Relief Page

Disability Law Center of Alaska, et al. v. Kevin Meyer, et al. Case No. 3AN-20-__________ CI
Amended Complaint
Disability Law Center of Alaska v. Meyer Page 2
Case No. 3:20-cv-173-JMK
Exhbiit 1 - Page 2
substantial increase in absentee voting and authorized Defendants either to
conduct elections this year entirely by mail or issue additional regulations as
necessary to run a safe election. Alaska SB 241 § 9 (enrolled March 28, 2020).
4. But instead of making voting safer and more accessible for all voters,
Defendants have instead decided to make it easier for one particular group of
voters to vote by absentee ballot than all others. In particular, Defendants have
begun proactively mailing applications to vote by absentee ballot to all registered
Alaska voters who are at least 65 years old, while excluding all other voters.
These mailings began arriving in mailboxes on or about July 13, 2020.1
5. This selective mailing violates the Twenty-Sixth Amendment to the

U.S. Constitution, which prohibits Defendants, as Alaska officials acting under

color of state law, from “denying or abridging” the right to vote by anyone age 18
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or older “on account of age.” U.S. Const. amend. XXVI. By choosing to mail
applications only to voters 65 and older, the State has made it more difficult for
younger voters to vote by absentee ballot than older voters. This age-defined cut-
off discriminates among voters and abridges the right to vote on account of age in
direct violation of the Twenty-Sixth Amendment.
6. The selective mailing also violates the Equal Protection and Due
Process guarantees of the state and federal constitutions. The Alaska
1 See Exhibit A, attached.

Amended Complaint
Exhbiit 1 - Page 3
Constitution, for instance, provides that “all persons are equal and entitled to
equal rights, opportunities, and protection under the law,” Alaska Const. art. I
§ 1, but the mailing unlawfully and specifically divides the Alaska electorate into
two groups based on invalid criteria: age.
7. By the same reasoning, it also violates the Plaintiffs’ rights under
the First and Fourteenth Amendments of the U.S. Constitution.
8. The selective mailing also has disproportionate racial effects. Based
on 2018 demographic data, 77% of Alaskans 65 or older are white, but only 67%
of Alaskans under that age are white. The mailing thus disproportionately makes
it more difficult for people of color to access absentee ballots.

9. To the extent Defendants claim the selective mailing is intended to

protect vulnerable Alaskan voters from COVID-19, the method chosen is not
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logically or practically aligned with this goal.
10. The selective mailing does not protect Alaskans under 65 who
experience a disability and may be more susceptible to complications arising from
COVID-19. The selective mailing allows recipients to bypass the step of
requesting a ballot online through a database that requires a form of state
identification. Failure to extend this benefit to Alaskans with disabilities may be
a detriment to the Alaskan voters with disabilities who reside in group homes or
institutions where they do not have regular internet access, nor do they have a
form of state identification that would allow them to request a ballot application

Amended Complaint
Exhbiit 1 - Page 4
online. Residents of group homes and institutions are at particular risk of
contracting COVID-19.2
11. On June 24, 2020 Alaska’s Chief Medical Officer, Dr. Anne Zink,
testified to the Alaska Legislature’s Health and Social Services Committee that
approximately one-third of Alaskans have one or more medical conditions that
puts them at a higher risk of complications from COVID-19. Additionally, the
Center for Disease Control has retracted its earlier advice that “mainly those 65
and older faced higher risk.”3 The new CDC guidance puts greater emphasis on
the risks presented by a number of health conditions suffered by young and old
alike, including diabetes, obesity and heart conditions, as well as conditions

particular to younger citizens, like pregnancy.4 Current incident manager for the
CDC’s COVID-19 response (and Alaska’s former Chief Medical Officer) Jay Butler
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put it simply:
Younger people are in no way completely immune to the

effects of SARS-CoV-2 nor are they at zero risk of severe
manifestations. And among young people, that risk is
elevated in those with underlying illness or health
conditions, including things like diabetes or obesity.5
2 State of Alaska, Department of Health and Social Services: COVID-19

Recommended Guidance for Congregate Residential Settings, available at
http://dhss.alaska.gov/dph/Epi/id/SiteAssets/Pages/HumanCoV/COVID-
19_Guidance_congregateResidentialsettings.pdf.
3 https://www.statnews.com/2020/06/25/cdc-broadens-guidance-on-americans-
facing-risk-of-severe-covid-19/.
4 Id.
5 Id.

Amended Complaint
Exhbiit 1 - Page 5
The selective mailing on its face is under-inclusive of many Alaskans under age
65 who have as great, or greater, risk of complications from COVID-19.
12. Not only are those under the age of 65 also at risk for COVID-19
complications, they are—according to state epidemiologist, Dr. Joe McLaughlin—
currently the source of greatest growth for the virus. The majority of new cases
since mid-June have been among Alaskans in their 20s, 30s, and 40s, and case
spikes amongst younger people is known to lead to subsequent case growth
among older age groups.6
13. Many Alaskans in rural parts of the state live in communities with
limited or no medical facilities, as well as limited travel options.7 The selective

mailing is under-inclusive by failing to protect Alaskans who are at greater risk

of complications from COVID-19 due to this lack of access to medical services.

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14. At-risk Alaskans commonly share a household with low-risk,
healthy Alaskans. By sending an absentee ballot application to voters over 65
and not sending the application to younger Alaskans in the same household, the
6 https://www.adn.com/alaska-news/2020/07/09/alaska-records-another-near-
record-increase-in-daily-confirmed-coronavirus-cases/.
7 E.g., Alaska Mapping Business Plan, Appendix 2: An Overview of Communities
in Alaska, 49–50 (noting that 79% of Alaska’s communities are considered “rural”
and that “Alaska’s communities are the most remote and rural in the nation”),
available at
https://www.commerce.alaska.gov/web/Portals/4/pub/AKMBPA2.pdf.

Amended Complaint
Exhbiit 1 - Page 6
selective mailing is under inclusive even in its purported goal of protecting elderly
Alaskans.
15. Additionally, healthy Alaskans who contract COVID-19 and do not
suffer severe complications, as well as asymptomatic carriers of COVID-19 will
routinely come in contact with Alaskans over the age of 65 and place them at risk
of infection. The selective mailing is under-inclusive by failing to include all
Alaskan voters, which would generally assist in slowing the community spread of
the virus. That omission imperils the health of Alaskans of all ages.
16. Defendants have recently activated an online portal for applications
for absentee ballots. However, this portal requires Alaskans know about it, seek
it out, and utilize it, and so it is unequal to, and no substitute for, the proactive
mailing going to all voters over 65, without any request. In addition, this online
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portal is fundamentally flawed with respect to rural Alaskans in at least two
respects: First, reliable access to the internet is known to be much more scarce
in rural Alaskan than on the road system.8 Second, this portal relies on Alaska
Department of Motor Vehicle records for verification, meaning that those without
8 Jeannette Lee Falsey, “For rural Alaska broadband, the 'middle mile' is
everything,” Anchorage Daily News, March 18, 2017,
https://www.adn.com/features/business-economy/2017/03/18/for-rural-alaska-
broadband-the-middle-mile-is-everything/ (noting that “Affordable, high-quality
broadband—defined as an internet connection that is faster than dial-up and
always available—remains elusive for consumers in rural Alaska.”)

Amended Complaint
Exhbiit 1 - Page 7
an official state ID or driver’s license are unable to access it. Many Alaskans in
rural parts of the state do not have such an ID, either because a license is not
required to drive on many roads in rural areas, or because of limited or no access
to a DMV office.9
17. There is a non-discriminatory method to accomplish Defendants’
purported goals of protecting Alaskans at risk of COVID-19 complications:
Defendants can simply treat all Alaska voters the same, give every Alaska voter
the same opportunities and assistance in voter, and mail an absentee voter
application to every registered Alaska voter without discriminating among them.
18. Scarcity of resources is not a factor in Defendants’ failure to send

absentee ballot applications to all Alaska voters. In communications with

members of the Legislature, Defendants have indicated that “cost is not a factor”
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in that decision. That indication is correct because the State of Alaska has
received approximately $3 million in CARES ACT funding to conduct elections
9See Joe Vigil, “Mobile DMV service coming to rural Alaska,” KTVA 11 (Jan. 10,
2020), https://www.ktva.com/story/41545129/mobile-dmv-service-coming-to-
rural-alaska (noting that there are only two DMV offices in the Bristol Bay
community, and that “a lot of people don’t have their driver’s license”). See also,
the DMV website currently showing that only approximately 31 communities in
Alaska have local access to DMV offices:
http://doa.alaska.gov/dmv/office/index.htm.

Amended Complaint
Exhbiit 1 - Page 8
during the pandemic and the estimated cost to send applications to all Alaska
voters should be as low as $120,000 or less.10
19. The absentee ballot application asks voters whether they wish to
receive an absentee ballot for the August primary election, the October Regional
Educational Attendance Area (REAA) election, and the November general
election.11 Thus, the form can be returned at any time before the deadline for the
general election. Therefore, Plaintiffs’ harm in failing to receive an application is
thus ongoing.
20. Alaska Statute 15.20.081(b) provides that an absentee ballot
application “must be received by the division of elections not less than 10 days
before the election for which the absentee ballot is sought.” But this 10-day
deadline actually violates federal law with respect to the upcoming presidential
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election, as federal law provides that “each State shall provide by law for the
casting of absentee ballots for the choice of electors for President and Vice
President, or for President and Vice President, by all duly qualified residents of
such State who may be absent from their election district or unit in such State on
the day such election is held and who have applied therefor not later than seven
days immediately prior to such election.” 52 U.S.C. § 10502(d).
10 The state of Ohio reports a cost of $1.5 million for their program to mail
absentee ballot applications to all 7.8 million registered voters, less than 20 cents
per voter.
11 See Exhibit A.

Amended Complaint
Exhbiit 1 - Page 9
19.21. In order to remedy the constitutional issues and violations raised by
Defendants’ selective absentee ballot application program, this Court should
enter an injunction requiring Defendants to mail an absentee ballot application
to all registered Alaska voters, regardless of their age, in both the primary and
general elections.
PARTIES
20.22. Plaintiff Disability Law Center is the federally mandated Protection
and Advocacy System for the State of Alaska empowered to provide legal
advocacy for people with disabilities anywhere in Alaska. Plaintiff,
21.23. Plaintiff Native Peoples Action Community Fund is a 501(c)(3) non-

profit that advocates for Alaska Native causes, including advocating in a non-
partisan manner for Alaska Natives’ opportunities to vote.

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22.24. Plaintiff Alaska Public Interest Research Group is a non-partisan
consumer advocacy and research organization that focuses on good governance.
23.25. Plaintiff Aleija Stover is a 21 year-old Alaskan, who is registered to
vote in Anchorage. Ms. Stover suffers from chronic severe asthma which she has
been informed by her doctor puts her among the highest risk individuals were she
to contract COVID-19. Ms. Stover is also one of the organizers of “Alaska Mask
Makers” which to date has produced approximately 60,000 cloth masks to help
prevent the spread of COVID-19 in Alaska.

Amended Complaint
Exhbiit 1 - Page 10
24.26. Plaintiff, Camille Rose Nelson is a 24 year-old registered voter,
living in Kotzebue. As a resident of Kotzebue Ms. Nelson has access to only a
single significant medical facility, the Maniilaq Health Center. Maniilaq Health
Center has only approximately a dozen in-patient beds which could be
overwhelmed if a large COVID-19 outbreak occurred among Kotzebue’s
approximately 3,200 residents.
25.27. Defendant Kevin Meyer is being sued in his official capacity as the
Lieutenant Governor of the State of Alaska.
26.28. Defendant Division of Elections is an agency of the State of Alaska,
Office of the Lieutenant Governor, and is supervised by the Lieutenant Governor.

JURISDICTION AND VENUE

29. Plaintiffs’ claims arise under 42 U.S.C. §§ 1983 and 1988, to

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redress deprivation under color of state law of rights secured by the United
States Constitution; under the United States and Alaska Constitutions; and
under the Americans with Disabilities Act, 42 U.S.C. §§ 12131 et seq..
30. This Court has original jurisdiction under 28 U.S.C. §§ 1331 and
1343 because the claims arises under the Constitution and laws of the United
States. This Court has supplemental jurisdiction under 28 U.S.C. § 1367 over
any state constitutional claims.
31. This Court has personal jurisdiction over Defendants Meyer and
the Division of Election, who are sued in their official capacity.

Amended Complaint
Exhbiit 1 - Page 11
32. Venue is proper under 28 U.S.C. § 1391(b) because a substantial
part of the events that caused Plaintiffs’ claim occurred in this dispute, as well
asjudicial district.
27.33. This Court has the abilityauthority to enter a declaratory
judgment and to provide injunctive relief, under AS 22.10.020. under Rules 57
and 65 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202.
28. Venue is proper in the Third Judicial District as both Defendants
maintain offices and may be served within Anchorage, Alaska.

RELEVANT FACTS AND LEGAL BACKGROUND

The U.S. and Alaska Constitutions prohibit the State from abridging
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the right to vote on account of age.
29.34. The Twenty-Sixth Amendment to the United States Constitution
was ratified in 1971. Its guarantee is unequivocal: “The right of citizens of the
United States, who are eighteen years of age or older, to vote shall not be denied
or abridged by the United States or by any State on account of age.”
30.35. As one Congressperson put it during the debates leading up to
ratification, the Amendment “guarantees that citizens who are 18 years of age or
older shall not be discriminated against on account of age.” 12 Similarly, the
12 117 Cong. Rec. 7532, 7534 (1971) (remarks of Rep. Poff).

Amended Complaint
Exhbiit 1 - Page 12
Senate Report accompanying the Senate Joint Resolution later enacted as the
Amendment noted that “forcing young voters to undertake special burdens—
obtaining absentee ballots, or traveling to one centralized location in each city,
for example—in order to exercise their right to vote might well serve to dissuade
them from participating in the election.”13
31.36. The Amendment’s text was “modeled after similar provisions in the
[Fifteenth A]mendment, which outlawed racial discrimination at the polls, and
the [Nineteenth A]mendment, which enfranchised women.”14 The Amendment’s
legislative history also demonstrates “an overwhelming influence of Fourteenth
Amendment principles embedded in the push for ratification.”15 Thus, the

Twenty-Sixth Amendment must be understood as a civil rights measure [or

Amendment] that was intended to—and does in fact—eliminate any possibility

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of age discrimination in voting.
32.37. The inclusion in the Amendment of the language “or abridged”
underscores that the Amendment serves to “do more than just police states’
voting ages.”16 To “abridge” means to “curtail, lessen, or diminish (a right,
13 S. Rep. No. 92-26, at 14 (1971).

14 See 117 Cong. Rec. at 7533 (statement of Rep. Celler).
15 Yael Bromberg, Youth Voting Rights and the Unfulfilled Promise of the Twenty-
Sixth Amendment, 21 U. Penn J. Const. Law, 1105, 1161 (“Bromberg”); see also
id. at 1124–27, 1132–34.
16 Eric S. Fish, The Twenty-Sixth Amendment Enforcement Power, 121 Yale L.J.
1168, 1181 (2012).

Amended Complaint
Exhbiit 1 - Page 13
privilege, etc.); to reduce the extent or scope of.”17 In a related context—the Voting
Rights Act—Congress has defined “denial or abridgement” as a practice under
which “the political processes leading to nomination or election in the State or
political subdivision are not equally open to participation by members of a class
of citizens . . . in that its members have less opportunity than other members of
the electorate to participate in the political process and to elect representatives of
their choice.” 52 U.S.C. § 10301(b) (emphasis added). In sum, the Twenty-Sixth
Amendment prohibits all practices that affect the right to vote where a
government makes it more difficult or unequal for one group of voters to exercise
their right to vote than another group, if those competing groups are defined by
their ages.
33.38. Similarly, “the Alaska Constitution gives all . . . residents an equal

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right to vote.” Hayes v. Municipality of Anchorage, 46 P.3d 971, 974 (Alaska 2002);
see also Kenai Peninsula Borough v. State, 743 P.2d 1352, 1371 (Alaska 1987)
(“[I]t is clear that the right to vote is fundamental.”). Indeed, when it comes to
that fundamental right to vote, “it is implicit in [Alaska’s] constitutional structure
that similarly situated communities be treated in a similar manner.” Id. at 1371–
72. Thus, the State cannot make it more burdensome to vote for eligible voters of
17 Oxford English Dictionary (3d ed. 2009).

Amended Complaint
Exhbiit 1 - Page 14
a certain age, race, or residence relative to others similarly situated but for those
characteristics.
34.39. In interpreting inherent rights, including the right to vote, the
Alaska Constitution also provides that “all person are equal and entitled to equal
rights, opportunities, and protections under the law.” Alaska Constitution Art. I
Sec. 1.
The Lieutenant Governor decides to make voting by absentee ballot

easier for voters 65 and older than for all others.
35.40. On Thursday, June 11, 2020, the Lieutenant Governor announced a
program that intentionally violates these constitutional principles and others. On

that date, he announced that registered Alaskan voters 65 and older will
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automatically receive an absentee ballot application.18 During an online town hall
the next week, he confirmed the plan for the discriminatory mailing while also
acknowledging that the State is encouraging all voters to request absentee ballots
or vote early in order to reduce lines on election day.19
36.41. Plaintiffs, Aleija Stover and Camille Rose Nelson are under age 65,
and have not received absentee ballot applications. Therefore, Plaintiffs, like all
18 https://www.ktuu.com/content/news/Absentee-ballot-applications-to-be-sent-
to-all-registered-Alaskan-voters-65-and-older--571204481.html.
19 https://www.alaskapublic.org/2020/06/21/state-will-mail-absentee-ballot-
applications-to-seniors-critics-say-that-suppresses-young-minority-votes/.

Amended Complaint
Exhbiit 1 - Page 15
Alaska voters younger than 65, must proactively begin the process of obtaining a
ballot. Additional options all involve multiple additional steps, barriers, and
requirements.
37.42. For instance, younger voters may use Alaska’s Online Absentee
Ballot Application, but that system requires both reliable Internet access and
certain forms of ID that not all eligible voters have. Or they may use the state’s
online portal to generate and print a paper application, but that requires not only
Internet access but also access to a printer and mailing materials, including a
stamp, envelope, and more.
38.43. Viewed in context, the discriminatory mailing abridges the right to

vote on account of age, because it makes it more difficult for those under 65 to
vote absentee than for those 65 and older. This follows logically: Voters 65 and
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older do not have to take any affirmative step to begin the process of applying for
an absentee ballot, because the State has chosen to take that first step for them—
and only for them—by mailing the applications proactively. As a result, voters
under the age of 65 have a diminished opportunity to vote as compared to voters
65 and older (because it is now harder for the younger group of voters to obtain
absentee ballots), purely because of their age. That is the very definition of a law
or policy that abridges the right to vote on account of age—a textbook violation of
the Twenty-Sixth Amendment and the Alaska Constitution.

Amended Complaint
Exhbiit 1 - Page 16
39.44. Data also shows that the discriminatory mailing will have a
disparate racial impact on voters of color and Alaska Native voters. As of July
2018, 77% of the 87,304 Alaskans 65 or over was white, but only 67% of the
younger cohort of 461,835 voters was white. Thus, only 19,930 people of color (or
11.7% of the total population of people of color) will get the absentee ballot
application in the discriminatory mailing. But 67,374 white people (or 17.8% of
the total population of white people) will receive the mailing.
40.45. The disparate racial impact of the discriminatory mailing is made
worse due to guidance from the CDC published on July 10, 2020 indicating that
COVID-19 is disproportionately fatal to people of color aged under 65. Overall,

29.5% of nonwhite fatalities were younger than 65 years of age, as opposed to only
13.2% of white fatalities younger than 65.20

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41.46. It is not as if younger voters do not wish to vote by absentee ballot.
The opposite is true: based on data from the 2018 election, nationally, 22.5% of
voters 18 to 24 and 20.7% of those aged 25 to 34 used at-home ballots in the 2018
election. At the same time, 30% of voters over 65 voted at home nationally in
2018. Thus, all age cohorts used absentee balloting a substantial rate in 2018.21
20 https://www.cdc.gov/mmwr/volumes/69/wr/mm6928e1.htm.
21 All source data can be found at http://voteathome26.us.

Amended Complaint
Exhbiit 1 - Page 17
42.47. Those numbers are expected to surge in elections in 2020 due to the
coronavirus pandemic. In the June 23, 2020 primary in Kentucky, 85% of voters
voted by absentee ballot—up an astonishing 42.5 times (or 4,250%) from just 2%
use of absentee ballots in the 2018 general election in that state.22 Similarly
massive jumps have been seen across the Nation: Maryland went from 4%
absentee in 2016 to 97% in 2020; Iowa from 19% to 80%; New Mexico from 7% to
64%; and so on.23 There is every reason to believe that Alaska will see a similar
desire of voters of all ages, races, and backgrounds to vote by mail. Absentee
voting through the mail might become the default method of voting in 2020,
making equality in its application all the more vital.

43.48. The State’s explanation for the limited, discriminatory mailing is

irrational in light of the nature of the pandemic and the broad use of vote by mail
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across all age groups that we’ve seen since the pandemic hit. Lieutenant Governor
Meyer explained that older Alaskans “are a very vulnerable group” and that
many “are worried about the virus.” He noted that in particular older poll workers
might not show up, and recognized that “if they’re not comfortable, we don’t want
them to come out.”
22 https://www.whas11.com/article/news/local/kentucky-election-absentee-vote-
turnout/417-23f2bb1e-ea9a-4c7e-8202-c33f54063ab6,
https://www.brennancenter.org/our-work/research-reports/preparing-your-state-
election-under-pandemic-conditions.
23 https://fivethirtyeight.com/features/what-the-june-2-primaries-can-tell-us-
about-november/.

Amended Complaint
Exhbiit 1 - Page 18
44.49. But the State’s mailing to all Alaskans over 65 makes no sense of
this stated rationale. It is uncontested that there are many other vulnerable
Alaskans—such as many individuals with underlying health conditions and
individuals with disabilities—who are not receiving the mailing. And both federal
and state guidance recommends that all Americans engage in social distancing
precisely so that the virus does not circulate widely. For this reason, many
Alaskans under 65 are “not comfortable” with in-person voting. These are people
the State admits it does not want to “come out” to vote. Yet the State is also
forcing them to take steps that older voters need not take to obtain absentee
ballots.
45.50. The unconstitutional discrimination in Defendants’ current plan to

mail absentee applications only to Alaskans over 65 can be remedied only by an

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order requiring Defendants to send absentee applications to all eligible voters in
Alaska.
COUNT I
Violation of the Twenty-Sixth Amendment

(U.S. Const. amend. XXVI, 42 U.S.C. § 1983; 28 U.S.C. §§ 2201, 2202)
46.51. Plaintiffs reallege and incorporate by reference all previous and
subsequent paragraphs as if set forth herein.

Amended Complaint
Exhbiit 1 - Page 19
47.52. The discriminatory mailing has caused and will cause Alaska voters
65 and older to receive absentee ballot applications automatically based on their
age, while voters younger than 65 must take additional steps in order to vote by
absentee ballot. Therefore, the mailing discriminates on its face on the basis of
age, abridges the voting rights of Alaskans younger than 65 on account of their
age, and therefore presumptively violates the Twenty-Sixth Amendment.
48.53. The state’s actions in excluding every voter under the age of 65 are
arbitrary and capricious. The state does not have a compelling interest sufficient
to justify this discrimination and, even if it did, its actions in sending absentee
ballot applications to all voters 65 and older are not narrowly tailored to serve
that, or any, interest.

49.54. Even if the discriminatory mailing is reviewed under a lower

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standard, Alaskans’ Twenty-Sixth Amendment right to vote far outweighs any
purported interest the state has in creating or enforcing arbitrary, age-based
divisions among groups of voters.
50.55. Absent relief from this Court, Plaintiffs, and all Alaska voters under
65, will have their rights to vote abridged on account of age.
COUNT II
Violation of the Right To Vote; Due Process

(U.S. Const. amends. I, XIV; 42 U.S.C. § 1983; 28 U.S.C. §§ 2201, 2202)

Amended Complaint
Exhbiit 1 - Page 20
52.57. The right to vote is a fundamental right, and any infringement
“must be strictly scrutinized and can only survive scrutiny if the State establishes
a compelling state interest and that its action is closely tailored to effectuate that
interest and is the least onerous path that can be taken to achieve the State’s
objective.” Montana Envtl. Info Ctr. V. Dept of Envtl. Quality, 998 P.2d 1236
(Mont. 1999).
53.58. Alternatively, a court considering a challenge to a state election law
must carefully balance the character and magnitude of injury to the First and
Fourteenth Amendment rights that the plaintiff seeks to vindicate against “‘the
precise interests put forward by the State as justifications for the burden imposed
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by its rule,’ taking into consideration ‘the extent to which those interests make it
necessary to burden the plaintiff’s rights.’” See Burdick v. Takushi, 504 U.S. 428,
434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)).
54.59. Alaska’s decision to mail absentee ballot applications only to voters
65 and older fails both tests. At the same time that it is making the right to vote
easier to assert for voters 65 and older, the State is also encouraging all voters to
vote by absentee ballot. Any purported “interest” in avoiding the minimal
additional administrative work and cost associated with expanding the mailing
to all voters is easily outweighed by the comparative burden that younger voters

Amended Complaint
Exhbiit 1 - Page 21
face by requiring them to obtain absentee ballot applications on their own or vote
in-person even if they are “not comfortable” with doing so.
55.60. Absent relief from this Court, Plaintiffs and many other Alaska
voters will have their rights to vote abridged.
COUNT III
Violation of the Right To Vote; Due Process

(Alaska Constitution Art. V, Sec. 1 & Art. I, Sec. 1)
57.62. The Alaska Constitution provides that “[e]very citizen of the United
States who is at least eighteen years of age, who meets registration residency
requirements which may be prescribed by law, and who is qualified to vote under
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this article, may vote in any state or local election.” Alaska Const. Art. V, Sec. 1.
58.63. As its Declaration of Rights confirms, the Alaska Constitution “is
dedicated to the principle[] that all persons . . . are equal and entitled to equal
rights, opportunities, and protection under the law.” Id. art. I § 1.
59.64. The Alaska Supreme Court has recognized the rights provided
under the United States Constitution and has not hesitated to enhance those
rights though Alaska’s constitutional framework. “Although the federal

Amended Complaint
Exhbiit 1 - Page 22
constitution sets the minimum protections afforded to individual liberty and
privacy interests, the Alaska Constitution often provides more protection.”24
“[W]e are not limited by decisions of the United States

Supreme Court or the United States Constitution when we
expound our state constitution; the Alaska Constitution may
have broader safeguards than the minimum federal
standards.”25
60.65. The discriminatory mailing violates Art. V, Sec. 1 of the Alaska
Constitution for the same reason it violates the Twenty-Sixth Amendment—
because it makes voting easier and more accessible for one group of Alaskans,
and consequently more difficult in a relative sense for all others, based solely on
their age.
COUNT IV
Violation of Civil Rights

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(Alaska Constitution Art. 1, Sec. 3)
24Myers v. Alaska Psychiatric Inst., 138 P.3d 238, 245 (Alaska 2006) (citing Valley
Hosp. Ass’n v. Mat-Su Coal., 948 P.2d 963, 966-67 (Alaska 1997)).
25 Roberts v. State, 458 P.2d 340, 342-43 (Alaska 1969) (citing U.S. Const.
amend. IX). See also Baker v. City of Fairbanks, 471 P.2d 386, 401-02 (Alaska
1970) (footnote and citations omitted). “While we must enforce the minimum
constitutional standards imposed upon us by the United States Supreme Court’s
interpretation of the Fourteenth Amendment, we are free, and we are under a
duty, to develop additional constitutional rights and privileges under our Alaska
Constitution if we find such fundamental rights and privileges to be within the
intention and spirit of our local constitutional language and to be necessary for
the kind of civilized life and ordered liberty which is at the core of our
constitutional heritage. We need not stand by idly and passively, waiting for
constitutional direction form the highest court of the land. Instead, we should be
moving concurrently to develop and expound the principles embedded in our
constitutional law.”

Amended Complaint
Exhbiit 1 - Page 23
62.67. The Alaska Constitution provides that “No person is to be denied the
enjoyment of any civil or political right because of race, color, creed, sex, or
national origin.” Alaska Const. Art. I § 3.
63.68. The discriminatory mailing makes it easier for Alaskans who are 65
and older to exercise their right to vote than for Alaskans younger than 65. People
of color make up a higher proportion of Alaskans under the age of 65 than of
Alaskans 65 and older. Therefore, the discriminatory mailing violates Section 3
of Article I of the Alaska Constitution.

COUNT V
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Violation of Right to Vote on Geographic Basis

(Alaska Constitution)
65.70. The Alaska Constitution requires that “similarly situated
communities be treated in a similar manner” with respect to the right to vote.
Kenai Peninsula Borough v. State, 743 P.2d 1352 (Alaska 1987) (interpreting
Alaska Const. Art. II, Sec. 19 regarding redistricting).
66.71. The discriminatory mailing will reach proportionally fewer
Alaskans in rural Alaska because people of color, particularly Alaska Natives,

Amended Complaint
Exhbiit 1 - Page 24
make up a higher percentage of those Alaskans living in rural Alaska.26 As
described above, people of color make up a significantly lower portion of the voters
aged over 65. Accordingly, rural Alaska will be disproportionately underserved,
and discriminated against, by the Defendants’ plan.
COUNT VI
Failure to Provide Reasonable Accommodations in Violation of

Title II of the Americans with Disabilities Act
(42 U.S.C. §§ 12131, et seq.)
68.73. Congress found in enacting the Americans with Disabilities Act

(ADA) that “discrimination against individuals with disabilities persists in such

critical areas as… voting”27 and authorized the ADA to “to provide a clear and
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comprehensive national mandate for the elimination of discrimination against
individuals with disabilities.”28
26 Alaska Population Overview, Table 2.10, 2.11 (showing population data by age
and ethnicity for each region, borough, and census area),
https://live.laborstats.alaska.gov/pop/estimates/pub/13popover.pdf.
27 42 U.S.C. § 12101(3).
28 42 U.S.C. § 12101(b)(1).

Amended Complaint
Exhbiit 1 - Page 25
69.74. Title II of the ADA prohibits the State from excluding or denying a
qualified individual with a disability from the benefits of the services, programs,
or activities of the State, by reason of their disability.29
70.75. Alaskans with disabilities can be found among every other
demographic of Alaskan voter.
71.76. Many individuals with disabilities face an elevated risk of infection
or severe illness from COVID-19 because of underlying health conditions.30 This
includes many Alaskan voters who have a disability within the meaning of the
ADA who may face a significant risk of severe illness or death should they
contract COVID-19.
72.77. This class of Alaskan voters with disabilities who are under 65 years
of age will not receive the benefit of the State’s discriminatory mailer. To the
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extent that the State recognizes that voters over 65 are “a very vulnerable group”
and “if they are not comfortable, we don’t want them to come out,” the state has
failed to recognize that the same concern exists for Alaskans with disabilities
under 65.
73.78. Additionally, many Alaskans with disabilities who may reside in
group homes or institutions may face the same complications to apply for mail in
2942 U.S.C. § 12132.et. seq.

30 https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-
with-disabilities.html.

Amended Complaint
Exhbiit 1 - Page 26
voting as rural voters, as residential or institutional care may not have accessible
internet, and many of these residents may not have state identification.
74.79. In addition to the lack of reliable internet and State identification
that some voters with disabilities may face, many voters experiencing
developmental or intellectual disability may not have the sophistication to use
the State’s electronic database to request a mail in voting application.
75.80. A reasonable accommodation under the ADA would include mailing
an absentee ballot application to every Alaskan with a disability, as it has chosen
to do for all Alaskans over the age of 65.
76.81. The failure to provide this accommodation is a denial of the benefit

provided to older voters and creates an unnecessary additional step to apply for
mail in voting.
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77.82. The requested relief, while covering more than just the class of
individuals protected by the ADA, will ensure that every Alaskan with a
disability will have the opportunity to apply to vote by mail should they choose to
do so. The ADA authorizes injunctive relief as appropriate to remedy acts of
discrimination against persons with disabilities.31
COUNT VII
Violation of the Voting Rights Act

(42 U.S.C. § 1983; 28 U.S.C. §§ 2201, 2202; 52 U.S.C. § 10502)
31 42 U.S.C. §§ 12188(a)(1)-(2).

Amended Complaint
Exhbiit 1 - Page 27
83. Plaintiffs reallege and incorporate by reference all previous and
subsequent paragraphs as though set forth here.
84. Alaska’s deadline to return any absentee ballot applications,
whether received from the State or not, violates the Voting Rights Act with
respect to the upcoming November general election, because it requires that
absentee ballot requests be received ten days before a presidential election when
federal law states that all requests made up to seven days before the election are
lawful requests, per 42 U.S.C. § 10502(d).
85. Absent relief from this Court, Plaintiffs and many other Alaskan
voters will have their rights to vote abridged.

PRAYER FOR RELIEF

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FACSIMILE (907) 277-4657
Plaintiffs respectfully request that this Court:
a. Declare that the discriminatory mailing violates the Twenty-Sixth
Amendment to the U.S. Constitution, the First and Fourteenth Amendments to
the U.S. Constitution; Section 1, Article V of the Alaska Constitution; Section 3,
Article 1 of the Alaska Constitution; Section 19, Article II of the Alaska
Constitution; and Title II of the Americans with Disabilities Act.;
b. Require Defendants, all of their agents, officers, employees,
successors, and all persons acting in concert with them, or any other official to

Amended Complaint
Exhbiit 1 - Page 28
send an absentee ballot application to all qualified Alaska voters regardless of
age in both the Primary and General Elections in 2020;
c. Prohibit Defendants, all of their agents, officers, employees,
successors, all persons acting in concert with them, or any other official from
using age, geography, or race as a consideration in distributing further materials
regarding absentee voting, or otherwise from discriminating on the basis of age
in the administration of any election in 2020;
d. Require that all absentee ballot applications received up to 7 days
before the upcoming November general election, however submitted, shall be
timely processed;
d.e. Find that Plaintiffs are public interest litigants seeking the
enforcement of constitutional rights in this proceeding.;

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e.f. Award Plaintiffs their full costs, disbursements, and reasonable
attorneys’ fees as required by AS 9incurred in bringing this action, pursuant to
42 U.S.C. § 1988, Alaska Statute 09.60.010(c)), and other applicable laws;
f.g. Grant any and all additional relief to which Plaintiffs are entitled.
RESPECTFULLY SUBMITTED at Anchorage, Alaska
Dated this _____ day of July 2020, at Anchorage, Alaska.
/s/ Scott M. Kendall

Scott M. Kendall
Samuel G. Gottstein

Amended Complaint
Exhbiit 1 - Page 29

Co-Counsel for Plaintiffs
By:
Jason Harrow (Pro Hac Vice)

Scott M. Kendall
Samuel G. Gottstein
EQUAL CITIZENS
Michael Donofrio (Pro Hac Vice)

STRIS & MAHER LLP
Co-Counsel Attorneys for Plaintiffs
By:
Michael Donofrio*
TELEPHONE (907) 274-0666
FACSIMILE (907) 277-4657
Stris & Maher LLP, 2d Floor

28 Elm Street
(802) 858-4465
*Motion to appear pro hac vice

forthcoming
EQUAL CITIZENS

Amended Complaint
Exhbiit 1 - Page 30
I hereby certify that, on the __ day of July 2020, I electronically filed the
foregoing with the Clerk of the Court using the CM/ECF system which will send
notification of such filing to the following:
Attorney General’s Office
1031 W. 4th Avenue, Suite 200
Anchorage, AK 99501
margaret.paton-walsh@alaska.govCo-Counsel
for Plaintiffs
By:

TELEPHONE (907) 274-0666
FACSIMILE (907) 277-4657
Scott M. Kendall
Jason Harrow*
Equal Citizens
3243 S. La Cienega Blvd.
Suite B
Phone: (610) 357-9614
*Motion to appear pro hac vice

forthcoming

Amended Complaint
Exhbiit 1 - Page 31
Scott M. Kendall
Samuel G. Gottstein
Holmes Weddle & Barcott, P.C.
701 West 8th Avenue, Ste. 700
Anchorage, AK 99501
Phone: 907.274.0666
Fax: 907.277.4657
smkendall@hwb-law.com
Jason Harrow
Equal Citizens
3243B S. La Cienega Blvd.
jason@equalcitizens.us
Michael Donofrio
Stris & Maher LLP
28 Elm St., 2d Fl.
michael.donofrio@strismaher.com
IN THE U.S. DISTRICT COURT FOR THE DISTRICT OF ALASKA

TELEPHONE (907) 274-0666
FACSIMILE (907) 277-4657

ALASKA, NATIVE PEOPLES
ACTION COMMUNITY FUND,
RESEARCH GROUP, ALEIJA Case No. 3:20-cv-173-JMK
STOVER, and CAMILLE ROSE
NELSON,
Plaintiffs,
v.

STATE OF ALASKA, DIVISION
OF ELECTIONS,
Defendants.
NOTICE OF APPEAL
Notice of Appeal
Notice is hereby given that Plaintiffs Disability Law Center Of Alaska,
Native Peoples Action Community Fund, Alaska Public Interest Research
Group, Aleija Stover, and Camille Rose Nelson, hereby appeal to the U.S. Court
of Appeals for the Ninth Circuit from the Court’s order, dated September 3,
2020 and entered on the docket on that same day at ECF Docket Entry Number
36. Plaintiffs appeal any and all aspects of the order denying Plaintiffs’ Motion
for a Preliminary Injunction.
Dated this 4th day of September 2020, at Anchorage, Alaska.

Scott M. Kendall
Samuel G. Gottstein

TELEPHONE (907) 274-0666
FACSIMILE (907) 277-4657
Jason Harrow (Pro Hac Vice)

EQUAL CITIZENS
Michael Donofrio (Pro Hac Vice)

STRIS & MAHER LLP
Notice of Appeal
CM/ECF District of Alaska Version 6.1 LIVE DB 11/27/20, 10:48 AM
APPEAL,JMKLC1
U.S. District Court

District of Alaska (Anchorage)
CIVIL DOCKET FOR CASE #: 3:20-cv-00173-JMK
Disability Law Center of Alaska et al v. Meyer et al Date Filed: 07/20/2020

Assigned to: Joshua M. Kindred Jury Demand: None
Case in other court: 9CCA, 20-35778 Nature of Suit: 441 Civil Rights: Voting
State of Alaska Third Judicial District Jurisdiction: Federal Question
Anchorage, 3AN-20-07060 CI
Cause: 28:1441 Petition for Removal
Plaintiff
Disability Law Center of Alaska represented by Scott M. Kendall
Holmes Weddle & Barcott, PC
701W. 8th Avenue, Suite 700
Anchorage, AK 99501
907-274-0666
Fax: 907-277-4657
Email: smkendall@hwb-law.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Jason Seth Harrow

Equal Citizens
3243B S. La Cienega Blvd
610-357-9614
Email: jason@equalcitizens.us
Keri-Ann Baker
Reeves Amodio LLC.
500 L Street, Suite 300
Anchorage, AK 99501
907-222-7100
Fax: 907-222-7199
Email: kbaker@reevesamodio.com
Michael Nicholas Donofrio

Stris & Maher LLP
28 Elm St., 2d Floor
https://ecf.akd.uscourts.gov/cgi-bin/DktRpt.pl?854383018321356-L_1_0-1 Page 1 of 9
ER-131
802-858-4465
Email: Michael.donofrio@strismaher.com
Plaintiff
Native Peoples Action Community Fund represented by Scott M. Kendall
(See above for address)
LEAD ATTORNEY
Jason Seth Harrow


Plaintiff
Alaska Public Interest Research Group represented by Scott M. Kendall
LEAD ATTORNEY
Jason Seth Harrow


Plaintiff
Aleija Stover represented by Scott M. Kendall
LEAD ATTORNEY
Jason Seth Harrow


Plaintiff
ER-132
Camille Rose Nelson represented by Scott M. Kendall

LEAD ATTORNEY
Jason Seth Harrow


V.
Defendant
Kevin Meyer represented by Margaret A. Paton-Walsh
Lieutenant Governor of Alaska State of Alaska, Department of Law (Anch
- suite 200)
Office of the Attorney General, Civil
Division
1031 W. 4th Avenue, Suite 200
Anchorage, AK 99501
907-269-6612
Fax: 907-258-4978
LEAD ATTORNEY
Defendant
State of Alaska, Division of Elections represented by Margaret A. Paton-Walsh
LEAD ATTORNEY
Amicus
Alaska Community Action On Toxics represented by Keri-Ann Baker
Thomas P. Amodio
Reeves Amodio LLC.
500 L Street, Suite 300
Anchorage, AK 99501
907-222-7100
Fax: 907-222-7199
ER-133
Email: tom@reevesamodio.com
Amicus
Planned Parenthood Votes Northwest represented by Keri-Ann Baker
and Hawaii (See above for address)
Thomas P. Amodio
Amicus
Alaska Center Education Fund represented by Keri-Ann Baker
Thomas P. Amodio
Amicus
Honest Elections Project represented by Craig W. Richards
Law Office of Craig Richards
810 N Street Ste. 100
Anchorage, AK 99501
907-306-9878
Email:
crichards@alaskaprofessionalservices.com
Date Filed # Docket Text

09/22/2020 43 ORDER of USCA as to 37 Notice of Appeal, filed by Aleija Stover, Disability Law
Center of Alaska, Alaska Public Interest Research Group, Native Peoples Action
Community Fund, Camille Rose Nelson: 20-35778 The motions for leave to become
amici curiae are granted. The Clerk shall file the amicus briefs submitted on September
16, 2020 and September 17, 2020. Appellants emergency motion for injunctive relief
pending appeal is denied. The briefing schedule established previously remains in
effect. (BJK, COURT STAFF) (Entered: 09/28/2020)
09/22/2020 42 TRANSCRIPT of Proceedings ; Remote Proceeding by Videoconference, Oral
Argument on Motion for Preliminary Injunction held on August 25, 2020 before Judge
Joshua M. Kindred. Realtime Court Reporter: Sonja L. Reeves, RMR-CRR.
Any party needing a copy of the transcript to review for redaction purposes may
ER-134
purchase a copy by calling Realtime Court Reporter, Sonja L. Reeves, RMR-CRR (907)
677-6136. Transcript may be viewed at the court public terminal or purchased through
the Transcriber before the deadline for Release of Transcript Restriction. After that date
it may be obtained through PACER.
The parties have seven (7) calendar days to file with the court a Notice of Intent to
Request Redaction of this transcript. If no such Notice is filed, the transcript may be
made remotely electronically available to the public without redaction after Release of
Transcript Restriction deadline of 12/21/2020. Ordered by: Scott Kendall (SLR)
(Entered: 09/22/2020)
09/18/2020 41 ORDER denying 38 Motion for Injunction Pending Appeal. Signed by Judge Joshua M.
Kindred on 9/18/2020. (LLR, CHAMBERS STAFF) (Entered: 09/18/2020)
09/09/2020 39 RESPONSE in Opposition re 38 MOTION re 37 Notice of Appeal, Motion for
Injunction Pending Appeal Opposition to Motion for Injunction Pending Appeal filed
by State of Alaska, Division of Elections. (Paton-Walsh, Margaret) (Entered:
09/09/2020)
09/04/2020 40 USCA Case Number 20-35778 for 37 Notice of Appeal, filed by Aleija Stover,
Disability Law Center of Alaska, Alaska Public Interest Research Group, Native
Peoples Action Community Fund, Camille Rose Nelson. (BJK, COURT STAFF)
(Entered: 09/14/2020)
09/04/2020 38 MOTION re 37 Notice of Appeal, Motion for Injunction Pending Appeal by Alaska
Public Interest Research Group, Disability Law Center of Alaska, Native Peoples
Action Community Fund, Camille Rose Nelson, Aleija Stover. (Attachments: # 1
Proposed Order Proposed Order)(Kendall, Scott) (Entered: 09/04/2020)
09/04/2020 37 NOTICE OF APPEAL as to 36 Order on Motion for Preliminary Injunction by Alaska
Public Interest Research Group, Disability Law Center of Alaska, Native Peoples
Action Community Fund, Camille Rose Nelson, Aleija Stover. Filing fee $ 505, receipt
number 097--2934382. (Kendall, Scott) (Entered: 09/04/2020)
09/03/2020 36 ORDER denying 12 Motion for Preliminary Injunction. Signed by Judge Joshua M.
09/01/2020 35 ANSWER to Complaint Answer by All Defendants.(Paton-Walsh, Margaret) (Entered:
09/01/2020)
08/25/2020 34 Minute Entry for proceedings held before Judge Joshua M. Kindred: Oral Argument on
Motion for Preliminary Injunction 12 held 9:04 a.m. to 10:07 a.m. on 8/25/2020. Court
and counsel heard re 12 Motion for Preliminary Injunction. Oral arguments heard.
Matter TAKEN UNDER ADVISEMENT. Written ruling to issue. VIRTUAL
APPEARANCES: Scott M. Kendall telephonic for Plaintiff; Jason Seth Harrow and
Michael Nicholas Donofrio via Video for Plaintiff; Margaret A. Paton-Walsh via Video
for Defendant; Kerry Ann Baker telephonic for Intervenor Plaintiff; Sonja L. Reeves,
Official Court Reporter. (RMC, COURT STAFF) (Entered: 08/25/2020)
08/20/2020 33 Amicus Curiae APPEARANCE entered by Keri-Ann Baker on behalf of Alaska Center
Education Fund, Alaska Community Action On Toxics, Planned Parenthood Votes
ER-135
Northwest and Hawaii. (Baker, Keri-Ann) (Entered: 08/20/2020)

08/19/2020 32 ORDER granting 31 Motion for Extension of Time to File. Signed by Judge Joshua M.
08/18/2020 31 MOTION for Extension of Time to File Amicus Brief by Alaska Center Education
Fund, Alaska Community Action On Toxics, Disability Law Center of Alaska, Planned
Parenthood Votes Northwest and Hawaii. (Attachments: # 1 Affidavit Affidavit of
Counsel, # 2 Proposed Order)(Baker, Keri-Ann) (Entered: 08/18/2020)
08/18/2020 30 NOTICE of Appearance by Keri-Ann Baker on behalf of Alaska Center Education
Fund, Alaska Community Action On Toxics, Disability Law Center of Alaska, Planned
Parenthood Votes Northwest and Hawaii (Baker, Keri-Ann) (Entered: 08/18/2020)
08/11/2020 29 Order re: Intervention and Briefs of Amici Curiae (Dockets 17, 18, 26). (LLR,
CHAMBERS STAFF) (Entered: 08/11/2020)
08/10/2020 28 REPLY to Response to Motion re 12 MOTION for Preliminary Injunction Plaintiffs'
Reply In Support of Motion for Preliminary Injunction filed by Alaska Public Interest
Research Group, Disability Law Center of Alaska, Native Peoples Action Community
Fund, Camille Rose Nelson, Aleija Stover. (Kendall, Scott) (Entered: 08/10/2020)
08/06/2020 27 RESPONSE in Opposition re 17 MOTION to Intervene Opposition to Motion to
Intervene filed by State of Alaska, Division of Elections. (Paton-Walsh, Margaret)
(Entered: 08/06/2020)
08/03/2020 26 Amicus Brief by Honest Elections Project. (Attachments: # 1 Exhibit)(Richards, Craig)
Modified on 8/12/2020 to change docket text per Order dkt 29. (RMC, COURT
STAFF). (Entered: 08/03/2020)
08/03/2020 25 DECLARATION of Josh Applebee re 22 Response in Opposition to Motion by State of
Alaska, Division of Elections. (Paton-Walsh, Margaret) (Entered: 08/03/2020)
08/03/2020 24 DECLARATION of Gail Fenumiai re 22 Response in Opposition to Motion by State of
08/03/2020 23 DECLARATION of Anne Zink re 22 Response in Opposition to Motion by State of
08/03/2020 22 RESPONSE in Opposition re 12 MOTION for Preliminary Injunction Opposition to
Motion for Preliminary Injunction filed by State of Alaska, Division of Elections.
(Paton-Walsh, Margaret) (Entered: 08/03/2020)
08/03/2020 21 RESPONSE to Motion (Non-Opposition) re 17 MOTION to Intervene Plaintiffs' Non-
Opposition to Amici Participation filed by Alaska Public Interest Research Group,
Disability Law Center of Alaska, Native Peoples Action Community Fund, Camille
Rose Nelson, Aleija Stover. (Kendall, Scott) (Entered: 08/03/2020)
07/28/2020 20 SEALED ORDER RE BRIEFING SCHEDULE; granting re 10 Stipulation re
Briefing Schedule. Motion for Preliminary Injunction due 7/22/20; Responses due by
8/3/2020; Replies due by 8/10/2020. Virtual Oral Argument set for 8/25/2020 9:00 a.m.
in Virtual Courtroom 1 before Joshua M. Kindred. Signed by Judge Joshua M. Kindred
ER-136
on 7/28/20. (Attachments: # 1 Virtual Courtroom 1 Quick Guide)(RMC, COURT

STAFF) (Entered: 07/28/2020)
07/28/2020 19 ORDER granting 11 Stipulation. Signed by Judge Joshua M. Kindred on 7/28/2020.

(LLR, CHAMBERS STAFF) (Entered: 07/28/2020)
07/28/2020 18 JOINDER TO MOTION FOR PRELIMINARY INJUNCTION by Alaska Center
Education Fund, Alaska Community Action On Toxics, Planned Parenthood Votes
Northwest and Hawaii 12 MOTION for Preliminary Injunction filed by Aleija Stover,
Disability Law Center of Alaska, Alaska Public Interest Research Group, Native
Peoples Action Community Fund, Camille Rose Nelson. (Amodio, Thomas) (Entered:
07/28/2020)
07/28/2020 17 MOTION to Intervene by Alaska Community Action On Toxics, Planned Parenthood
Votes Northwest and Hawaii, Alaska Center Education Fund. (Attachments: # 1
Supplement Memorandum in Support of Motion to Intervene, # 2 Proposed Order)
(Amodio, Thomas) (Entered: 07/28/2020)
07/27/2020 16 CLERK'S NOTICE re 7 Application to Appear Pro Hac Vice. The Application to
Appear Pro Hac Vice by Michael Nicholas Donofrio, at docket 7 , is authorized under
D.Ak. LR 83.1(d). (RMC, COURT STAFF) (Entered: 07/27/2020)
07/27/2020 15 CLERK'S NOTICE re 4 Application to Appear Pro Hac Vice. The Application to
Appear Pro Hac Vice by Jason Seth Harrow, at docket 4 , is authorized under D.Ak. LR
83.1(d). (RMC, COURT STAFF) (Entered: 07/27/2020)
07/22/2020 14 AFFIDAVIT of Scott M. Kendall re 13 Memorandum,, 12 MOTION for Preliminary
Injunction by Alaska Public Interest Research Group, Disability Law Center of Alaska,
Native Peoples Action Community Fund, Camille Rose Nelson, Aleija Stover.
(Kendall, Scott) (Entered: 07/22/2020)
07/22/2020 13 MEMORANDUM in Support of Motion for Preliminary Injunction by Alaska Public
Interest Research Group, Disability Law Center of Alaska, Native Peoples Action
Community Fund, Camille Rose Nelson, Aleija Stover 12 MOTION for Preliminary
Injunction filed by Aleija Stover, Disability Law Center of Alaska, Alaska Public
Interest Research Group, Native Peoples Action Community Fund, Camille Rose
Nelson. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B)(Kendall, Scott)
(Entered: 07/22/2020)
07/22/2020 12 MOTION for Preliminary Injunction by Alaska Public Interest Research Group,
Rose Nelson, Aleija Stover. (Attachments: # 1 Proposed Order Proposed Order)
07/22/2020 11 STIPULATION on Overlength Briefing by Alaska Public Interest Research Group,
07/22/2020 10 STIPULATION re Briefing Schedule by Alaska Public Interest Research Group,
ER-137

07/22/2020 9 NOTICE Proposed Order Granting Motion to Amend Complaint by Alaska Public
Interest Research Group, Disability Law Center of Alaska, Native Peoples Action
Community Fund, Camille Rose Nelson, Aleija Stover re 8 MOTION to
Amend/Correct 1 Notice of Removal, (Kendall, Scott) (Entered: 07/22/2020)
07/22/2020 8 MOTION to Amend/Correct 1 Notice of Removal, by Alaska Public Interest Research
Group, Disability Law Center of Alaska, Native Peoples Action Community Fund,
Camille Rose Nelson, Aleija Stover. (Attachments: # 1 Exhibit Exhibit 1)(Kendall,
Scott) (Entered: 07/22/2020)
07/21/2020 7 MOTION for Leave to Appear as Pro Hac Vice (Non-Resident ) Attorney Michael
Donofrio. ( Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2909962.)
by Alaska Public Interest Research Group, Disability Law Center of Alaska, Native
Peoples Action Community Fund, Camille Rose Nelson, Aleija Stover. (Attachments: #
1 Certificate of Good Standing)(Donofrio, Michael) (Entered: 07/21/2020)
07/21/2020 6 NOTICE Notice of Completed Filing by State of Alaska, Division of Elections (Paton-
Walsh, Margaret) (Entered: 07/21/2020)
07/21/2020 5 NOTICE OF FILING STATE COURT SERVICE LIST by All Defendants (Paton-
Walsh, Margaret) (Entered: 07/21/2020)
07/21/2020 4 MOTION for Leave to Appear as Pro Hac Vice (Non-Resident ) Attorney Jason
Harrow. ( Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2909546.)
by Alaska Public Interest Research Group, Disability Law Center of Alaska, Native
Peoples Action Community Fund, Camille Rose Nelson, Aleija Stover.(Harrow, Jason)
(Entered: 07/21/2020)
07/21/2020 3 ORDER to Petitioner Subsequent to Removal: Service list due within 10 days. State
Court documents due within 20 days. (LMH, COURT STAFF) (Entered: 07/21/2020)
07/20/2020 2 Civil Cover Sheet. (Paton-Walsh, Margaret) (Entered: 07/20/2020)
07/20/2020 1 NOTICE OF REMOVAL by All Defendants Defendant's Notice of Removal from
Superior Court for the State of Alaska Third Judicial District at Anchorage, case
number 3AN-20-07060CI. ( Filing fee $ 400 receipt number 097--2908757), filed by
All Defendants. (Attachments: # 1 Exhibit Complaint)(Paton-Walsh, Margaret)
(Entered: 07/20/2020)
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Case: 20-35778, 12/01/2020, ID: 11911411, DktEntry: 27, Page 1 of 139

IN THE UNITED STATES COURT OF APPEALS

DISABILITY LAW CENTER OF

KEVIN MEYER, LIEUTENANT

Scott M. Kendall /s/ Jason Harrow

1. Order Denying Motion For Preliminary Injunction,

3. Declaration of Josh Applebee

4. Declaration of Gail Fenumiai

5. Declaration of Anne Zink

6. Affidavit of Scott M. Kendall

7. June 17, 2020 mailing to certain Alaska voters

8. June 29, 2020 letter of Matt Claman

10. Notice of Appeal

11. District Court Docket Sheet

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

DISABILITY LAW CENTER OF

KEVIN MEYER, Lieutenant Governor

This matter is before the Court on Plaintiffs’ motion for preliminary

Case 3:20-cv-00173-JMK Document 36 Filed 09/03/20 Page 1 of 22 ER-3

Plaintiffs ask this Court for an order requiring Defendants to “immediately

government leaders, continuously have implemented restrictions on community,

slow the spread of COVID-19.

Every aspect of life outside the home—from grocery shopping, to classroom

learning, to daily employment—has had to evolve. In response to this new reality,

2020 state elections.

Defendants list precautions taken during the pandemic in their response in

opposition 10 to the motion for preliminary injunction:

Staff are working hard to assure the primary and general

outreach effort, mailing voters aged 65 and older a paper

information that the Division already possessed.

II. STANDARD OF REVIEW

“A preliminary injunction is an extraordinary remedy never awarded as of

four prongs” of Winter to obtain a preliminary injunction. 15 Ultimately, “[a] preliminary

B. Mandatory Versus Prohibitory Injunctions

clearly favor the moving party.’” 21

upon issuance or nonissuance of an injunction, considerations specific to election cases.” 23

expedited consideration of an incomplete record. “Court orders affecting elections,

alter the election rules on the eve of an election.” 24

reviewing court in a position to decide whether the challenged provision is

unconstitutional.” 27 While the State’s “reasonable, nondiscriminatory restrictions” usually

Although there is a heightened standard applicable in this matter, the prudent

A. Whether an Injunction is in the Public Interest

to curb the spread of COVID-19. In a vacuum, that contention appears to be correct.

apparatus is well-equipped to navigate the logistical burdens of conducting so much of a

statewide election exclusively by mail.

regarding its ability to efficiently process written applications to vote by mail.

Plaintiffs bear the burden of establishing that the preliminary injunction

granting the injunction, nor would it be proper.

In our adversary system, in both civil and criminal cases, in the

persuasion that the preliminary injunction is in the public interest.

Assuming, arguendo, that Plaintiffs could establish that the preliminary

prong: “balance of equities.” As provided in Winter, a “preliminary injunction is an

relief, paying particular regard to the public consequences.” 32

Here, Plaintiffs rightly and passionately point to the importance of Alaskans’

sharply in [their] favor.” 33

vacuum, conducting the balancing exercise without due consideration of Defendants’

perspective. Furthermore, Plaintiffs missed an opportunity to remedy this deficiency in

their reply, instead reducing Defendants’ articulation of hardship as speculative. 34 Second,

Defendants express a compelling, practical concern regarding the Division

of Elections’ ability to effectively process high volumes of paper applications as

concern could be addressed by Defendants adopting a different policy approach. Even if

C. Likelihood of Success on the Merits