U.S. District Court District of Alaska (Anchorage) CIVIL DOCKET FOR CASE #: 3:20-cv-00127-JWS

Alaska Libertarian Party et al v. Fenumiai et al Assigned to: John W. Sedwick Cause: 42:1983 Civil Rights Act

Date Filed: 06/03/2020 Date Terminated: 07/14/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Plaintiff Alaska Libertarian Party

represented by Christopher David Wiest Chris Wiest, Attorney at Law, PLLC 25 Town Center Blvd, STE 104 Crestview Hills, KY 41017 513-257-1895 Fax: 859-495-0803 Email: chris@cwiestlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas P. Amodio Reeves Amodio LLC. 500 L Street, Suite 300 Anchorage, AK 99501 907-222-7100 Fax: 907-222-7199 Email: tom@reevesamodio.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Jon Watts

represented by Christopher David Wiest (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Thomas P. Amodio (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Gail Fenumiai In her official capacity as Director of Elections
Defendant Kevin Meyer In his official capacity as Lt. Governor

represented by Margaret A. Paton-Walsh 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 Email: margaret.patonwalsh@alaska.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margaret A. Paton-Walsh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/03/2020
06/03/2020
06/04/2020 06/05/2020

# Docket Text

COMPLAINT for Declaratory and Injunctive Relief against Jon

1

Watts, Alaska Libertarian Party ( Filing fee $ 400 receipt number

097--2885277.), filed by Jon Watts, Alaska Libertarian Party.

(Attachments: # 1 Civil Cover Sheet)(Amodio, Thomas) (Entered:

06/03/2020)

2 MOTION for Leave to Appear as Pro Hac Vice (Non-Resident ) Attorney Christopher D Wiest. ( Pro Hac Vice Admission fee $150.00 paid. Receipt number 097--2885295.) by Alaska Libertarian Party, Jon Watts.(Wiest, Christopher) (Entered: 06/03/2020)

3 Unissued summons re Defendant G. Fenumiai, (Attachments: # 1 Unissued Summons re Defendant K. Meyer)(LMH, COURT STAFF) (Entered: 06/04/2020)

Summons Issued as to Gail Fenumiai and Kevin Meyer. (LMH, COURT STAFF) (Entered: 06/05/2020)

06/07/2020

4 CLERK'S NOTICE re 2 Application to Appear Pro Hac Vice. The Application to Appear Pro Hac Vice by Christoper Wiest, at docket 2 , is authorized under D.Ak. LR 83.1(d). (SDW, COURT STAFF) (Entered: 06/07/2020)

06/11/2020

5 MOTION for Preliminary Injunction (Expedited consideration requested) by Alaska Libertarian Party, Jon Watts. (Attachments: # 1 Affidavit Declaration of Kohlhaas, # 2 Proposed Order Proposed Order)(Wiest, Christopher) (Entered: 06/11/2020)

06/11/2020 6

MOTION to Expedite consideration of DN 5, Motion for Preliminary Injunction by Alaska Libertarian Party, Jon Watts. (Attachments: # 1 Affidavit Declaration of C. Wiest, # 2 Proposed Order Proposed Order)(Wiest, Christopher) (Entered: 06/11/2020)

06/12/2020

7 JUDGE SEDWICK ORDER re 6 Motion to Expedite. The motion to expedite at docket 6 is GRANTED. Defendants shall respond to plaintiffs' motion at docket 5 for injunctive relief no later than June 29, 2020. Plaintiffs may file a reply no later than July 7, 2020. (GMM, CHAMBERS STAFF) (Entered: 06/12/2020)

06/16/2020

8 SUMMONS Returned Executed by Alaska Libertarian Party. Kevin Meyer served on 6/10/2020, answer due 7/1/2020. (Amodio, Thomas) (Entered: 06/16/2020)

06/16/2020

9 SUMMONS Returned Executed by Alaska Libertarian Party. Gail Fenumiai served on 6/10/2020, answer due 7/1/2020. (Amodio, Thomas) (Entered: 06/16/2020)

06/16/2020

10 SUMMONS Returned Executed by Alaska Libertarian Party. (Amodio, Thomas) Modified on 6/24/2020 to Create relationship to document #9. (SDW, COURT STAFF) (Entered: 06/16/2020)

06/29/2020 11

RESPONSE in Opposition re 5 MOTION for Preliminary Injunction (Expedited consideration requested) Opposition to Plaintiff's Motion for Preliminary Injunction and Cross-Motion to Dismiss filed by Gail Fenumiai. (Paton-Walsh, Margaret) (Entered: 06/29/2020)

06/29/2020 12

DECLARATION of Gail Fenumiai re 11 Response in Opposition to Motion, by Gail Fenumiai. (Attachments: # 1 Exhibit, # 2 Exhibit)(Paton-Walsh, Margaret) (Entered: 06/29/2020)

06/30/2020

13 JUDGE SEDWICK TEXT ORDER re 5 MOTION for Preliminary Injunction. When plaintiffs file their reply in support of their

emergency motion at docket 5, they shall include as an exhibit a report advising the court about their signature gathering efforts. The report shall focus on the period of time beginning on the date the motion at docket 5 was filed thru the date the reply is filed. The report shall list the number of persons engaged in collecting signatures each day, the city or town where each such person gathered signatures each day, and the aggregate number of signatures obtained each day. The report shall also state how many signatures have been obtained by electronic means. The report shall advise the total number of all signatures obtained to the date the reply is filed including those obtained before filing the motion at docket 5. Finally, the report shall state how many persons will continue to gather signatures. (GMM, CHAMBERS STAFF) (Entered: 06/30/2020)

07/03/2020 14

REPLY to Response to Motion re 5 MOTION for Preliminary Injunction (Expedited consideration requested) filed by Alaska Libertarian Party, Jon Watts. (Wiest, Christopher) (Entered: 07/03/2020)

07/03/2020 15

DECLARATION of Scott Kohlhaas (supplemental with signature
gathering update) re 14 Reply to Response to Motion by Alaska Libertarian Party, Jon Watts. (Wiest, Christopher) (Entered: 07/03/2020)

07/08/2020

16 ERRATA by Gail Fenumiai 11 Response in Opposition to Motion, filed by Gail Fenumiai. (Paton-Walsh, Margaret) (Entered: 07/08/2020)

07/10/2020 17

ORDER re 5 MOTION for Preliminary Injunction. (SDW, COURT STAFF) (Entered: 07/10/2020)

07/13/2020 18

NOTICE of Dismissal without prejudice under FRCP 41(a)(1)(A)(i) by Alaska Libertarian Party, Jon Watts (Wiest, Christopher) (Entered: 07/13/2020)

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 Christopher Wiest (admitted pro hac vice) KY Bar No. 90725; OH Bar No. 0077931 Chris Wiest, Atty at Law, PLLC 25 Town Center Blvd, Suite 104 Crestview Hills, KY 41017 513/257-1895 (v) 859/495-0803 (f) chris@cwiestlaw.com

Thomas Amodio, ABA No. 8511142 REEVES AMODIO LLC 500 L Street, Suite 300 Anchorage, AK 99501 Telephone: (907) 222-7100 Facsimile: (907) 222-7199 tom@reevesamodio.com Co-counsel for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

ALASKA LIBERTARIAN PARTY

:

AND

:

JON WATTS

:

Plaintiffs

:

v.

:

GAIL FENUMIAI In her official capacity as Director of Elections
AND

:

PLAINTIFFS’ EMERGENCY MOTION

FOR PRELIMINARY INJUNCTION

:

WITH DECLARATION OF SCOTT

KOHLHAAS IN SUPPORT

:

KEVIN MEYER

:

In his official capacity as Lt. Governor

:

Defendants

:

CIVIL ACTION NO. 3:20-cv-127

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I. Introduction Plaintiffs, the Alaska Libertarian Party (“ALP”) and Jon Watts, by and through Counsel,
move this Court for a preliminary injunction under FRCP 65, enjoining defendants from enforcing A.S. 15.30.025 as to them, in this election cycle. They challenge the signature gathering requirements in the middle of a global pandemic. In support, they rely on the verified Complaint, verified by Mr. Watts in this matter, and upon the declaration of Scott Kohlhaas.
The petition deadline for their Presidential ticket is August 5, 2020. Plaintiffs respectfully request emergency relief either: (i) reducing or eliminating that requirement, and/or (ii) extending the deadline. The harm is ongoing: Plaintiffs continue to attempt to comply with the statutory signature gathering requirements by attempting to gather signatures (with limited success) in the middle of a global pandemic.
II. Facts There are three methods for a political party to obtain party ballot access insofar as the
Presidential race is concerned: first, that they be recognized as a “political party” under A.S. 15.80.10(27) by achieving 3% of the vote in the preceding Governor’s race, or, if that race is not on the ballot, the United States Senate race is used, and if that race is not on the ballot, then the United States House race is used; second, that they be recognized as a “political party” under A.S. 15.80.10(27) by having registered voters equal to 3% of the vote in the preceding Governor’s race; or third, that they obtain “limited political party” status under A.S. 15.30.025, by submitting a petition with signatures equal to 1% of the votes cast in the preceding Presidential election in Alaska at least 90 days before the general election (and then maintaining that status with votes equal to 3% of the number of votes cast in the next election for President) under A.S. 15.30.025. (Pl.’s Verified Compl, RE#1, ¶8).
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Prior to 2016, the ALP qualified as a political party, because its 2014 Gubernatorial candidate received more than 3% of the vote for Governor. Id. at ¶9. In 2016, the ALP retained party status, because its candidate for United States Senate received 90,825 votes, or 29.16% of the vote. Id. at ¶10.
Also in 2016, the total votes cast at the preceding Presidential election in Alaska, which was 2016, was 318,608. Id. at ¶11. The Libertarian candidate, Gary Johnson, received 18,725 (or 5.88%). Id. The total votes cast at the preceding Governor’s election in Alaska, which was in 2018, was 283,134 votes, and the Libertarian candidate in that race, William Toien, received 5,402 votes (or 1.91%). Id. at ¶12. This caused the ALP to lose its party status. Id.
The 2020 Election Cycle
In early 2020, COVID-19 hit the United States, creating a significant public health crisis. Id. at ¶13. In the same period, starting on March 11, 2020, with Governor Dunleavy’s public declaration of emergency, the State of Alaska began issuing a number of public health mandates.1 Id. at ¶14. Among other things, public libraries, museums, and archives were closed on March 16, 2020; bars, breweries, restaurants, food and beverage kiosks or trucks, and other establishments serving food or beverages within the State of Alaska were closed to the public for dine-in service on March 17, 2020; distancing measures were ordered for persons who traveled outside of Alaska on March 17, 2020; elective medical procedures were postponed on March 19, 2020; business, congregations, or gatherings in the Fairbanks North Star Borough and the Ketchikan Gateway Borough were cancelled on March 21, 2020; all schools were cancelled on
1 See https://covid19.alaska.gov/health-mandates/ (last visited 5/29/2020). The Court can take judicial notice of all of these public declarations. Anderson v. Holder, 673 F.3d 1089, 1094 n.1 (9th Cir. 2012)
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March 20, 2020; a social distancing/stay at home order was issued March 28, 2020; and an intrastate travel ban was put into place March 28, 2020. Id.
On Friday April 24, 2020, Alaska began a phased re-opening plan. That plan required social distancing between persons who are not of the same household. Id. at ¶15. As of May 22, 2020, Alaska began additional re-opening procedures, but still strongly encouraged social distancing and the wearing of masks.2 Id. at ¶16. The May 22, 2020 re-opening orders are the currently applicable orders.3 Id.
In 2020, the Libertarian Party nominated its candidates for President and Vice President the weekend of May 22, 2020 through May 24, 2020, via an online convention for the first time in its history in light of COVID-19. Id. at ¶17. The selection of these candidates is the precursor to ballot access efforts in many states, since fundraising occurs in connection with the nomination. Id. Those ballot access fundraising efforts have been, and continue to be, depressed due to COVID-19. Dr. Jo Jorgensen, and Spike Cohen were selected as the nominees for President and Vice President, respectively. Id.
The Libertarian National Committee and the ALP engaged a local signature gatherer, Scott Kohlhaas, to lead the petition and signature gathering drive in Alaska. Id. at ¶18. Mr. Kohlhaas began that effort approximately three weeks ago, to secure Limited Party Status for the ALP, and to place the Jorgensen/Cohen ticket, and the ALP electors, on the ballot for 2020. (Pl.’s Verified Compl, RE#1, ¶19; Declaration Kohlhaas, attached hereto).
Mr. Jon Watts, the ALP Chair, also sought concessions from the Defendants in light of COVID-19; for their part, the Defendants offered to permit the ALP to gather signatures via an
2 https://covid19.alaska.gov/wp-content/uploads/2020/05/05222020-Phase-III-IV-016Attachment-N-Revised-Social-Religious-and-Other-Gatherings.pdf (last visited 5/29/2020) 3 https://covid19.alaska.gov/reopen/ (last visited 5/29/2020).
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online method. (Pl.’s Verified Compl, RE#1, ¶20). The ALP sought additional concessions from Defendants, including a reduction of the signature requirement, or an extension of the time to petition, but Defendants have refused, instead placing Plaintiffs, and the general public, at additional risk to the spread of COVID-19 through petition gathering efforts. (Pl.’s Verified Compl, RE#1, ¶21). Defendants denied them that relief.
Further, despite having attempted to do so via its website, email list, and other methods, the ALP has gathered less than 50 signatures via online canvassing of voters in the last 60 days. (Pl.’s Verified Compl, RE#1, ¶22; Declaration, Kohlhaas). Regular venues for the gathering and collection of signatures are shut down or severely curtailed. (Pl.’s Verified Compl, RE#1, ¶23; Declaration, Kohlhaas). Furthermore, people that Mr. Kohlhaas and other petitioners have approached for signatures are appropriately apprehensive to approach them and sign a petition in light of the COVID-19 outbreak. (Pl.’s Verified Compl, RE#1, ¶24; Declaration, Kohlhaas).
Mr. Kohlhaas, on May 28, 2020, petitioned for 3.5 hours (3 PM to 6:30 PM) in front of the Carrs grocery store in Eagle River, Alaska, which is part of the Municipality of Anchorage (MOA). (Pl.’s Verified Compl, RE#1, ¶22; Declaration, Kohlhaas). Working only on a Libertarian Limited Political Party petition, he gathered 56 signatures in that time, which is 16 signatures per hour. Id. Normally, Mr. Kohlhaas would gather closer to 35 signatures per hour at that same location during a "dinner hour" shift which is the most heavily trafficked. Id. People have displayed observable cues that they are not comfortable being approached with the outbreak of COVID-19. Id.
For a successful petition drive of 3,212 valid signatures, the ALP would gather 30% to 40% above that threshold, or approximately 5,000 “raw” signatures, to account for invalid signatures. (Pl.’s Verified Compl, RE#1, ¶23; Declaration, Kohlhaas). Also, for Kohlhaas and
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the other petition gatherers, it is physically far more difficult to petition while wearing a mask and petitioners took breaks to use hand sanitizer every 15 or 20 minutes. (Pl.’s Verified Compl, RE#1, ¶24; Declaration, Kohlhaas).
Kohlhaas and the ALP have hired eight other people to help gather signatures in Alaska. Petition team recruitment and retention right now is very difficult in light of COVID-19. (Pl.’s Verified Compl, RE#1, ¶25; Declaration, Kohlhaas). The results they have seen have been terrible. Id. They gathered 149 signatures over the last 10 days to 2 weeks. Id. In a typical year, they would expect at least 1,000 per week for this size team, in this same period. Id.
Overall, based on the longtime experience gathering signatures of Mr. Kohlhaas and others, it is over five times as hard to gather signatures right now, and, the Alaska requirement that is normally moderately burdensome in terms of signature gathering is severely burdensome in light of the circumstances on the ground with COVID-19. (Pl.’s Verified Compl, RE#1, ¶26; Declaration, Kohlhaas). Finally, Plaintiff Watts delivered paperwork to Defendant Fenumiai, without the required 1% of signatures appended to it for limited party status, and Defendant Fenumiai refused to accept the same to place the Libertarian Party’s 2020 Presidential and VicePresidential ticket and electors on the ballot as a limited party. (Pl.’s Verified Compl, RE#1, ¶27).
III. Law and Argument A. Preliminary Injunction Standard The issuance of preliminary injunctive relief rests upon consideration of four factors: [1]
the likelihood of the plaintiffs' success on the merits; [2] the threat of irreparable harm to the plaintiffs if the injunction is not imposed; [3] the relative balance of this harm to the plaintiffs and the harm to the defendants if the injunction is imposed; and [4] the public interest. Los
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Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200-01 (9th Cir. 1980).
The Ninth Circuit has encompassed these factors into a two-prong test. To qualify for preliminary injunctive relief, the moving party must show "either [1] a likelihood of success on the merits and the possibility of irreparable injury, or [2] that serious questions going to the merits were raised and the balance of hardships tips sharply in [the moving party's] favor." Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9th Cir. 1999), quoting, Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510, 1517 (9th Cir. 1992). "These two formulations represent a continuum in which the required degree of irreparable harm increases as the probability of success decreases." America West Airlines, Inc. v. National Mediation Board, 119 F.3d 772, 777 (9th Cir. 1997) (internal quotations omitted).
Preventing injury that cannot later be repaired is precisely the kind of irreparable injury that warrants preliminary injunctive relief. See S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1148 (9th Cir. 1998) (finding irreparable injury where ordinance imposed unreasonable time, place and manner restriction on protected speech), quoting, Elrod v. Burns, 427 U.S. 347, 373, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976) ("the loss of First Amendment freedoms for even minimal periods of time unquestionably constitutes irreparable injury"); Foti v. City of Menlo Park, 146 F.3d 629, 643 (9th Cir. 1998) (same).
Numerous cases hold that violation of a constitutional right, in and of itself, constitutes irreparable injury. See Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 1528-29 (9th Cir. 1993) (constitutional rights), cert. denied, 511 U.S. 1030 (1994); Chalk v. United States District Court, 840 F.2d 701, 710 (9th Cir. 1988) (civil rights); Zepeda v. United States Immigration and Naturalization Service, 753 F.2d 719, 727 (9th Cir. 1983).
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While this aspect of harm is related to the merits of a plaintiff's claim, even where the plaintiff has not demonstrated it is likely to prevail but instead raises serious questions on the merits, it establishes a distinct possibility that its constitutional rights would be violated absent the preliminary injunction. Sammartano v. First Judicial District Court in, for County of Carson City, 303 F.3d 959, 2002 WL 1963341, *13 (9th Cir. 2002) ("Even if the merits of the constitutional claim were not clearly established at this early stage in the litigation, the fact that a case raises serious First Amendment questions compels a finding that there exists the potential for irreparable injury." (Internal quotations omitted)). Irreparable injury need not be established with certainty or even high probability; the distinct possibility of such harm is sufficient to establish a "serious threat of irreparable injury" supporting preliminary injunctive relief. See, e.g., id.; Foti, 146 F.3d at 643.
B. Plaintiffs have demonstrated a likelihood of success on the merits Before undertaking an analysis of the merits of the Plaintiffs’ claims, it is important to note that this lawsuit, and the relief that Plaintiffs seek are narrow: Plaintiffs do not seek to facially challenge A.S. 15.30.025, or the general ballot access scheme of Alaska. In normal election years, these requirements pose modest burdens that Plaintiffs have historically and routinely been able to achieve. But 2020 is different, and what was a modest challenge in normal years poses an unsurmountable challenge this year. Plaintiffs thus bring an as-applied challenge to A.S. 15.30.025 in light of both governmental restrictions and shutdowns of public places, as well as the situation on the ground with COVID-19. Despite attempting to circulate petitions online, for over a month, it is readily apparent that the signature threshold cannot be met by the August deadline (or at all) in 2020 if Plaintiffs were to circulate solely online. In person signature gathering is thus necessary.
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Plaintiffs brought in a team of eight signature gatherers, and, despite reasonable diligence, have only been able to gather 149 signatures in 10 days. (Pl.’s Compl., RE#1, ¶25). Mr. Kohlhaas, who is the most seasoned and experienced of these signature gatherers, was able to gather only 56 signatures in a busy grocery store (perhaps the only reasonably crowded location that is open) in a three-and-a-half-hour effort. Id. The deadline is August 5, 2020.
Under the prevailing U.S. Supreme Court cases of Anderson v. Celebrezze, 460 U.S. 760 (1983) and Burdick v. Takushi, 504 U.S. 428 (1992), courts are first instructed to look at the burden of the requirement. Where burden is severe, strict scrutiny applies. Id. Where the burden is “more than minimal” the flexible approach is used, which weighs the government’s asserted interest against the means by which it has chosen to pursue it. Id.
The Ninth Circuit has held that the burden on plaintiffs' rights should be measured by whether, in light of the entire statutory scheme regulating ballot access, "reasonably diligent" candidates can normally gain a place on the ballot, or whether they will rarely succeed in doing so. Libertarian Party of Washington v. Munro, 31 F.3d 759, 761-762 (9th Cir. 1994) (quoting Storer v. Brown, 415 U.S. 724, 742 (1974)).
Typically, to determine the severity of the burden, the Ninth Circuit has said that past candidates' ability to secure a place on the ballot can inform the court's analysis. See id. at 763. That analysis, however, sheds little light on the situation this year. This year, the situation on the ground is unique. The District Court in Nevada recently recognized this fact. Fair Maps Nev. v. Cegavske, 2020 U.S. Dist. LEXIS 94696 (D. Nevada May 29, 2020). It looked to see if anyone else had qualified or submitted a petition under present circumstances. Id. That analysis is undoubtedly correct. And here, no one in Alaska has. And unless this Court takes action, it is highly unlikely that anyone in Alaska will.
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In the past two months, numerous federal courts have addressed ballot access or voting requirements which, in normal times, are typically viewed as reasonable or appropriate even though they are moderately burdensome, but which have become unreasonable and oppressive in light of the COVID-19 outbreak. Esshaki v. Whitmer, 2020 U.S. App. LEXIS 14376 (6th Cir. 2020) (concluding petition gathering with the presence of COVID-19 and state orders regarding same created a severe burden and ordering relief); Libertarian Party of Ill. v. Pritzker, 2020 U.S. Dist. LEXIS 71563 (ILND 2020) (order permitting previously qualified parties and loosening the signature requirements in light of insurmountable hurdle of COVID-19); Garbett v. Herbert, 2020 U.S. Dist. LEXIS 75853 (Dist. Utah, 2020) (reducing signature requirements in light of COVID-19 outbreak); Democratic Nat'l Comm. v. Bostelmann, 2020 U.S. Dist. LEXIS 48394, 2020 WL 1320819 (W.D. Wis. 2020) (extending deadline in light of "excruciating dilemma that will soon be faced by eligible voters . . . [to] either venture into public spaces, contrary to public directives and health guidelines or stay at home and lose the opportunity to vote.").
In a normal year, Mr. Kohlhaas and his team would have completed their Alaska petition drive in two to three weeks, and then moved on to other states on behalf of the Libertarian National Committee. As it stands, and without relief from this Court, it appears that they will need to spend the entire summer in Alaska, and even then perhaps not gather enough valid signatures to place the ticket on the ballot. The math on their progress to date is not favorable. At the rate that they have been proceeding, 149 signatures in 10 days, and with approximately 60 days until that deadline, it appears that even with an eight-person signature gathering team, they might at best gather only 905 signatures.
Again, what would typically trigger a flexible analysis and pass constitutional muster—in a normal year at least—does not trigger a flexible analysis given the situation on the ground in
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Alaska with the COVID-19 outbreak. Application of the challenged statutes, as applied this year, with the situation now presented by the pandemic and as experienced by reasonably diligent signature gatherers, demonstrates a severe, constitutionally unacceptable burden.
C. Remedies Having demonstrated a likelihood of success on the merits, and having demonstrated that the other factors are met because Constitutional rights are at stake, S.O.C., Inc., 152 F.3d 1136, 1148; Burns, 427 U.S. 347, 373; Foti, 146 F.3d 629, 643, Plaintiffs have demonstrated that they are entitled to preliminary injunctive relief. That turns to remedy. As remedy, Plaintiffs seek excusal from the signature requirement in its entirety, or, in the absence of that, they respectfully request a reduction in the number of valid signatures that they must submit. Given what Mr. Kohlhaas has observed, and specifically his testimony that it is over five times as difficult as normal to collect signatures, Plaintiffs suggest that a signature threshold of 20% of the normal threshold, or 638 signatures—for the 2020 election cycle only— would also be an appropriate remedy. They further seek, or alternatively seek, an extension of the deadline under which they must turn in signatures. IV. Conclusion Plaintiffs respectfully request the preliminary injunctive relief noted.
Respectfully Submitted,
/s/Christopher Wiest________________ Christopher Wiest (admitted pro hac vice) KY Bar No. 90725; OH Bar No. 0077931 Chris Wiest, Atty at Law, PLLC 25 Town Center Blvd, Suite 104 Crestview Hills, KY 41017 513/257-1895 (c) 859/495-0803 (f) chris@cwiestlaw.com
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/s/Thomas Amodio Thomas Amodio, ABA No. 8511142 REEVES AMODIO LLC 500 L Street, Suite 300 Anchorage, AK 99501 Telephone: (907) 222-7100 Facsimile: (907) 222-7199 tom@reevesamodio.com Co-counsel for Plaintiffs CERTIFICATE OF SERVICE I certify that I have served the foregoing upon all Counsel or parties, by: (i) filing a copy of the foregoing in the Court’s CM/ECF system; and (ii) serving a copy of the foregoing on the Defendants and upon the Alaska Attorney General, by express overnight mail, this 11 day of June, 2020. /s/Christopher Wiest
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 KEVIN G. CLARKSON ATTORNEY GENERAL

Margaret Paton-Walsh (AK Bar No. 0411074) Cori Mills (AK Bar No. 1212140) Assistant Attorneys 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
cori.mills@alaska.gov

Attorneys for the State of Alaska

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

ALASKA LIBERTARIAN PARTY and )

JON WATTS,

)

)

Plaintiffs,

)

)

v.

)

)

GAIL FENUMIAI, in her official

) Case No. 3:20-cv-00127-JWS

capacity as Director of Elections, KEVIN )

MEYER in his official capacity as

) OPPOSITION TO PLAINTIFF’S

Lt. Governor,

) MOTION FOR PRELIMINARY

) INJUNCTION AND CROSS-

Defendants

) MOTION TO DISMISS

)

I. INTRODUCTION

In this type of “as-applied” constitutional challenge requesting extraordinary relief

from otherwise constitutional ballot access requirements, the facts determine the

outcome. Here, the critical facts are that Governor Dunleavy’s stay-at-home order was

lifted before the Alaska Libertarian Party (ALP) started gathering in-person signatures,

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and—assuming ALP’s assertions about signature gathering efforts are true—all ALP had to do was gather nine signatures per circulator per day to meet Alaska law’s minimal threshold to get on the ballot. These facts do not justify extraordinary relief.
Alaska law on signature gathering is already quite permissive. Unlike the stricter ballot access requirements in other states requiring in-person signature gathering during a limited period of time, Alaska law already allows for signatures to be transmitted by scanned copies over email, and the political group seeking ballot access can start gathering those signatures as soon as the previous presidential election has been held.1 Although COVID-19 is making a lot of tasks and legal requirements more burdensome— including signature gathering—Alaska law fortunately already contains the flexibility and advanced timelines needed to accommodate reasonable ballot access for minority political parties during the current pandemic.
The Court should grant the Defendants’ (“the State”) motion to dismiss and deny ALP’s motion for a preliminary injunction. II. FACTS
Alaska law provides two different paths for political parties and political groups to access the presidential general election ballot.2 The only path at issue in this lawsuit

1 See AS 15.30.025.
2 AS 15.30.020-.025 (allowing a “political party,” defined as a party having received three percent of the vote in the last general election or a party having registered members equal to three percent of the vote, to access the general election ballot through Alaska’s primary election, and allowing other political groups to be recognized as “limited political parties” by submitting a petition).

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involves recognition as a “limited political party.”3 In order to be recognized as a “limited political party” and select candidates for electors for the presidential general election, a group must submit a petition “at least 90 days before” the general election that is “signed by qualified voters of the state equaling in number at least one percent of the number of voters who cast ballots for President at the last presidential election.”4 For this election cycle, the deadline for submitting the petition is August 5, 2020, and the political groups must gather at least 3,212 qualified signatures to earn limited political party status. [Dkt. 1 at 6, ¶ 26] Importantly, there is no statutory start date for gathering signatures; a party seeking limited political party status can gather signatures and submit them any time before or on the 90th day before the election.5
In this case, ALP seeks to get on the 2020 presidential general election ballot through recognition as a limited political party because it lost political party status after the 2018 election. [Dkt. 1 at 3, ¶ 12] As of November 3, 2019, ALP had 7,251 registered voters affiliated with the party. [Dkt. 1 at 1, ¶ 1] Because Alaska law does not restrict the timeline for signature gathering, nothing prevented the party from beginning to gather signatures to regain party status immediately after it lost that status in 2018.
On March 11, 2020, Governor Dunleavy issued a disaster declaration due to the COVID-19 pandemic. [Dkt. 1 at 4, ¶ 14] Although a number of health mandates and health advisories have been issued, only three are truly relevant for purposes of this

3 AS 15.30.025.

4

Id.

5

Id.

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lawsuit. On March 28, Governor Dunleavy issued a social distancing/stay at home mandate; on April 24, he allowed non-essential businesses to open to the public under stringent guidance; and on May 22, he lifted the social distancing/stay at home mandate allowing all businesses in Alaska to reopen.6 [Dkt. 1 at 4, ¶¶ 14, 16] As alleged in the complaint, “the May 22, 2020 reopening orders are the currently applicable orders.” Id.
ALP alleges it began gathering signatures through in-person circulators for its petition around May 24, 2020, after the national Libertarian Party Convention selected the party’s presidential nominee. [Dkt. 1 at 4-5, ¶¶ 17, 19] This gave the party a 79-day self-imposed window from May 24 to August 5 to gather the signatures it needed (nothing prevented the party from beginning to gather its signatures more than a year earlier, when it lost political party status following the 2018 election. [Dkt. 1 at 3, ¶12]). Thus, the party had to collect an average of 41 valid signatures per day or an estimated 64 “raw” signatures7 per day to account for potentially invalid signatures.8 ALP also

6 These two mandates and the one action rescinding the prior mandates can be found at the following hyperlinks: https://gov.alaska.gov/wpcontent/uploads/sites/2/03272020-SOA-COVID-19-Health-Mandate-011.pdf; https://gov.alaska.gov/wp-content/uploads/sites/2/03272020-SOA-COVID-19-HealthMandate-011.pdf; and https://covid19.alaska.gov/wp-content/uploads/2020/05/05192020Alaskas-Plan-Forward-Final.pdf.
7 In any signature-gathering effort, the Division of Elections will find that some percentage of the signatures collected are not the signatures of qualified Alaska voters. ALP uses the phrase “raw signatures” to describe all of the signatures gathered, in contrast to the signatures subsequently validated by the Division. Dkt. 5 at 5.
8 79 days x 41 signatures = 3239 signatures; 79 days x 64 signatures = 5056 signatures. See Dkt. 1 at 6, ¶ 26. The Division notes that two recently-filed initiative petitions—which had signature qualification rates of 87 and 88 percent—suggest that the party is unduly pessimistic about the likely number of invalid signatures. Declaration of Gail Fenumiai at 2-3, ¶¶ 11-12.

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asked the Division of Elections to simply “reinstate” its status as a limited political party in July of 2019 even though it had lost its limited political party status in 1992. [Declaration of Gail Fenumiai (Decl. Fenumiai) at 1-2, ¶ 2] But the Division of Elections confirmed in its response dated August 1, 2019 that the Division has no authority to “reinstate” limited political party status upon request; rather, ALP needed to submit a limited political party petition like every other political group that fails to meet the threshold for political party status. [Decl. Fenumiai at 1-2, ¶ 2]
By the end of May 2020, ALP had nine petition circulators working to gather signatures in support of its candidates—Scott Kohlhaas, an experienced circulator [Dkt. 5-1 at 1, ¶ 2],9 and eight others, hired by Mr. Kohlhaas. [Dkt. 5-1 at 2, ¶ 10] Counting only June, July, and the first four days of August,10 these nine circulators had 65 days to gather the 3,212-5,000 signatures they need, or an average of 50-77 signatures a day. This means that each circulator needs to collect an average of 6-9 signatures per day. Mr. Kohlhaas reports that he collected 56 signatures in a 3.5-hour period outside a grocery store in Eagle River on May 28. [Dkt. 5-1 at 2, ¶ 7]
Although the Division of Elections is unaware of any other political groups seeking limited political party status for the presidential election, the Division has received five petitions with signatures from candidates seeking nomination by petition, which also requires signature gathering. [Decl. Fenumiai at 2, ¶ 5] Such candidates must

9 Mr. Kohlhaas executed his affidavit—Dkt. 5-1—on May 29, 2020.
10 Because the petition has to be submitted by August 5, 2020, the party would likely need to complete its signature gathering by the end of August 4.

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submit signatures of qualified voters equivalent to one percent of those who voted in the district for which the nomination is being sought.11 Of the five petitions submitted, four were submitted after Governor Dunleavy issued the disaster declaration, and one was submitted in October 2019. [Decl. Fenumiai at 2-3, ¶¶ 5-9] To date, four of the five petitions submitted have been found to contain sufficient qualified signatures to go on the ballot. [Decl. Fenumiai at 2, ¶ 5]
Because of the federal Uniformed and Overseas Citizens Absentee Voting Act, the Division of Elections must send general election absentee ballots to certain voters 45 days before the election, which is September 19.12 To meet that deadline, the Division must send the final general election ballot to the printer by September 1. [Decl. Fenumiai at 4, ¶ 15] As a result, the current signature-gathering deadline of August 5 leaves the Division of Elections less than 30 days to review the signatures for a limited political party petition and finalize the general election ballot. During this period, the Division must also conduct the primary election, which is scheduled for August 18. III. LEGAL STANDARDS
The State moves the Court to dismiss ALP’s complaint for lack of standing under Rules 12(b)(1) and 12(b)(6). When subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the

11 AS 15.25.160-.170. 12 42 U.S.C. 1973ff et seq.

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defendant’s motion to dismiss.13 When the defendant asserts a failure to state a claim under Rule 12(b)(6), the allegations must “plausibly suggest an entitlement to relief.”14 In either case, the Court should assume the factual allegations in the complaint are true and draw all reasonable inferences in the plaintiff’s favor.15 But the Court should not accept the truth of legal conclusions cast as factual allegations.16
The State also opposes the ALP’s preliminary injunction motion on the merits. “A preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.”17 It is ALP’s burden to show that this drastic remedy is warranted.18 ALP must show that the following four factors are met: (1) ALP is likely to succeed on the merits, (2) ALP is likely to suffer irreparable harm without an injunction, (3) the balance of equities tips in ALP’s favor, and (4) an injunction is in the public interest.19
If ALP cannot show it is likely to succeed on the merits, the Court should then

13 Tosco v. Comtys. for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2000) (citing 28 U.S.C. § 1331, 1332(a)).
14 Ashcroft v. Iqbal, 556 U.S. 662, 681, 129 S.Ct. 1937 (2009).
15 Doe v. See, 557 F.3d 1066, 1073 (9th Cir. 2009).
16 Id.
17 Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quotation omitted). See also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (“A preliminary injunction is an extraordinary remedy never awarded as of right.”).
18 Envtl. Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000).
19 Winter, 555 U.S. at 20.

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look to see if ALP can show “serious questions going to the merits.”20 If so, “a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff’s favor,’” the plaintiff will suffer irreparable harm and the injunction is in the public interest.21
ALP also faces a heightened burden in this case because it is seeking a mandatory preliminary injunction, meaning an order requiring the Division to act as opposed to refrain from acting. A mandatory preliminary injunction should not be granted “unless the facts and law clearly favor the plaintiff.”22 This is especially true here given that the U.S. Supreme Court has expressly cautioned against making changes midway through an election cycle, and in this case, the primary election is just two months away.23 IV. ARGUMENT
A. ALP lacks standing because no state action is alleged to have harmed ALP’s signature gathering efforts, which began after Governor Dunleavy lifted his stay-at-home order.
Article III standing requires a plaintiff to establish three things: “(1) he must have directly suffered an injury in fact, (2) the injury must be fairly traceable to the defendant’s conduct, and (3) a favorable court decision must be likely to redress the injury.”24 Here, ALP has not established an injury in fact because no evidence suggests

20 Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013). 21 Id. (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). 22 Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1441 (9th Cir. 1986). 23 Purcell v. Gonzalez, 549 U.S. 1, 4, 127 S.Ct 5 (2006). 24 Rubin v. City of Santa Monica, 308 F.3d 1008, 1019 (9th Cir. 2002).

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that the party cannot with due diligence collect the needed signatures before the August 5 deadline. Nor has ALP established an injury that is “fairly traceable to” the State’s conduct, because the State lifted its stay at home order on May 22 and there are currently no state-imposed restrictions that limit the party’s signature-gathering efforts.
As for the injury-in-fact requirement, ALP’s complaint and its motion for preliminary injunction rest on a false predicate: the assumption that the party cannot realistically hope to gather sufficient signatures to get its presidential ticket on the general-election ballot. But ALP’s numbers do not support this contention. A goal of nine signatures per circulator per day is hardly onerous, especially when a single circulator— albeit an experienced one—collected 56 signatures in under four hours. [Dkt. 5-1 at 2, ¶ 7.]
As for the fairly-traceable requirement, to the extent that ALP may find it more difficult than usual to gather signatures in the context of the COVID-19 pandemic, that difficulty is not “fairly traceable” to state action. The State lifted its social distancing/stay-at-home mandate on May 22—before ALP even began trying to collect signatures. Thus, any difficulty that ALP is experiencing is not a product of state restrictions. As the Sixth Circuit recently noted in a similar case, “First Amendment violations require state action. So we cannot hold private citizens’ decisions to stay home

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for their own safety against the State.”25 Because ALP has not shown any injury nor any state action harming its signature-
gathering efforts, the Court should dismiss this case for lack of standing. B. ALP’s complaint fails to state a claim for which relief may be granted and should therefore be dismissed pursuant to F.R.C.P. 12(b)(6). In addition to lack of standing, the Court may also dismiss the complaint for
failure to state a claim, because ALP fails to allege a viable ballot access claim. The alleged burden on ballot access described in the complaint and motion for preliminary injunction is de minimus: at most, it amounts to a requirement that the party’s nine signature gatherers collect an average of nine signatures a day. This modest target is well within their abilities, as established by the affidavit of Mr. Kohlhaas. [Dkt. 5-1 at 2, ¶ 7.]
Given such a de minimis burden, the State’s well-established and judiciallyrecognized interests in reducing voter confusion and ballot over-crowding are more than sufficient to justify its reasonable ballot-access restrictions. These principles are discussed below in the State’s argument against ALP’s motion for preliminary injunction. For the same reasons ALP cannot make the merits showing necessary to justify a preliminary injunction, it also fails to state a claim for relief. Alaska’s ballot access laws remain constitutional even in the unique circumstances of the COVID-19 pandemic; and this Court should dismiss ALP’s complaint for failure to state a claim.

25 Thompson v. Dewine, 959 F.3d 804, 810 (6th Cir. 2020) (internal citations omitted); see also Clark v. Edwards, 2020 WL 3415376 (D. M.D. Lousiana 2020) (holding 10 different plaintiffs lacked standing on the grounds that “fear of the virus” was not a sufficient injury-in-fact nor fairly traceable to state action).

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C. ALP is not entitled to a preliminary injunction. Because an injunction is such an extraordinary remedy, ALP must show not only that it is likely to succeed on the merits of its claim, but also that it will be irreparably harmed if no injunction issues, that the equities tip strongly in its favor, and that an injunction will serve the public interest.26 But ALP has not established any of these elements, so the Court should deny the requested injunction.
1. ALP’s ballot access claim lacks merit. ALP fails to show that it is likely to succeed on the merits of its ballot access claim because even according to its own allegations, it can achieve ballot access despite the COVID-19 pandemic with a modicum of reasonable diligence. Federal courts “evaluate challenges to ballot access laws under the First and Fourteenth Amendments using the balancing framework in Anderson v. Calabrezze27 and Burdick v. Takushi.28 The balancing framework is a ‘sliding scale’—the more severe the burden imposed, the more exacting [the] scrutiny; the less severe, the more relaxed [the] scrutiny.”29 When the burden is severe, the State’s law must be narrowly tailored to advance a “compelling” interest, but “[a] state may justify election regulations imposing

26 Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1289 (9th Cir. 2013) (citing Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 20 (2008)). 27 460 U.S. 780 (1983). 28 504 U.S. 428 (1992). 29 De La Fuente v. Padilla, 930 F.3d 1101, 1105 (9th Cir. 2019) (citations omitted).

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a lesser burden by demonstrating the state has ‘important regulatory interests.’”30 Notably, ALP does not challenge the constitutionality of Alaska’s signature
requirement for limited political party status under normal circumstances, conceding that “[i]n normal election years, these requirements pose modest burdens that Plaintiffs have historically and routinely been able to achieve.” [Dkt. 5 at 8] Nor would such a challenge have any merit, because the Ninth Circuit has upheld equally or even more burdensome signature-gathering requirements, including California’s requirement that an independent candidate collect signatures from one percent of all registered voters.31
Instead, ALP posits that the COVID-19 pandemic has transformed an otherwise “modest burden” into an unconstitutionally severe burden that requires this Court’s intervention. But this claim is not borne out by the facts. As ALP’s own evidence demonstrates, it has more than enough time to gather the necessary signatures before the August 5 submission deadline—its required target of nine signatures per circulator per day is hardly onerous as shown by Mr. Kohlhaas’s collection of 56 signatures in threeand-a-half hours on an afternoon in late May. [Dkt. 5-1 at 2, ¶ 7.]
The State acknowledges that COVID-19 may have made signature gathering more difficult this year, but ALP’s allegations do not show a severe burden under the Ninth Circuit’s ballot-access cases. “In challenging ballot access regulations, parties must

30 Arizona Libertarian Party v. Reagan, 798 F.3d 723, 730 (9th Cir. 2015) (citing Nader v. Cronin, 620 F.3d 1214, 1217 (9th Cir. 2010)).
31 See e.g., De La Fuente, 930 F.3d at 1105-06. See also, Nader v. Cronin, 620 F.3d 1214 (9th Cir. 2010) (upholding Hawaii’s signature requirement of one percent of votes cast in last presidential election).

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articulate the nature of the burden, which ‘should be measured by whether, in light of the entire statutory scheme regulating ballot access, “reasonably diligent” [parties] can normally gain a place on the ballot, or whether they will rarely succeed in doing so.’”32 ALP argues that the unique circumstances this year render any consideration of what happens in normal years inappropriate and instead asks this Court to simply look at whether “anyone else ha[s] qualified or submitted a petition under present circumstances,”33 asserting that “here, no one in Alaska has. And unless this Court takes action, it is highly unlikely that anyone in Alaska will.” [Dkt. 5 at 9] But ALP can qualify for ballot access this year with a modicum of diligence: each of its circulators must gather only an average of nine signatures per day. Indeed, the party’s own numbers indicate their lack of diligence—ALP’s “team of eight signature gatherers … have only been able to gather 149 signatures in 10 days,” despite ALP’s own evidence showing that much more effective efforts are possible. [Dkt. 5 at 9]
As ALP notes, some courts in other parts of the country have enjoined state ballot access laws. [Dkt. 5 at 9-10] But these decisions are very fact-specific and none of them support this Court’s intervention here, where the plaintiff did not begin to gather signatures until after the State lifted its pandemic-related restrictions and faces a still very modest burden based on its own evidence. The cases that ALP cites are all distinguishable based on their respective state restrictions and timelines; notably, all

32 Arizona Green Party v. Reagan, 838 F.3d 983, 989 (9th Cir. 2016) (quoting Nader v. Brewer, 531 F.3d 1028, 1035 (9th Cir. 2008)).
33 Citing Fair Maps Nev. V. Cegavske, 2020 WL 2798018 at 2-3 (D. Nev. 2020).

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involved active signature-gathering efforts in the face of existing stay-at-home orders. To start, Democratic National Committee v. Bostelman,34 is irrelevant because it
had nothing to do with signature-gathering efforts for ballot access; instead, it involved a primary election in early April. Moreover, the U.S. Supreme Court immediately stayed part of the Bostelman injunction on the grounds that the “District Court contravened this Court’s precedents … This Court has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election.”35
The other cases ALP cites involved signature gathering in vastly different contexts, one of which—Esshaki v. Whitmer—has already been distinguished by the court that decided the case.36 Esshaki concerned a Michigan rule under which candidates could access the primary ballot only by turning in a sufficient number of qualified signatures by April 21, when a stay-at-home order issued March 23 was still in place.37 Because Michigan requires that nominating petition signatures be collected in-person and be witnessed by a circulator, the stay-at-home order made any signature gathering impossible.38 The Sixth Circuit later distinguished its Esshaki in an Ohio case, observing that “none of Ohio’s pandemic response regulations changed the status quo on the

34 2020 WL 1638374 (W.D. Wis., April 2, 2020). 35 Republican National Committee v. Democratic National Committee, -- U.S. --, 140 S.Ct. 1205 (2020). 36 See Thompson, 959 F.3d 804, 809. 37 Esshaki v. Whitmer, 2020 WL 2185553 at 1 (6th Cir. 2020). 38 M.C.L.A. 168.544c.

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activities Plaintiffs could engage in to procure signatures for their petitions.”39 As for the other cases, in Libertarian Party of Illinois v. Pritzker, the court
emphasized the fact that the signature-gathering window began after Illinois’ stay-athome order was already in place, with no end in sight for the stay-at-home order.40 In Garbett v. Herbert, Utah’s signature submission deadline was April 13, and a stay-athome directive had issued two weeks earlier.41 Lastly, in Fair Maps Nevada v. Cegavske, Nevada had a stay-at-home order in place from March 30 to May 9, and the statutory deadline for turning in signatures for the initiative petition was June 24.42 Nevada requires an initiative petition to be signed by a large percentage of voters,43 and the court relied on the existence of a constitutional deadline that is later than the June 24 statutory deadline in deciding to enjoin the deadline, while also leaving in place the in-person signature requirement.44
Each case was decided on its specific facts in the midst of ongoing stay-at-home orders. The facts of this case, by contrast, show a much lesser burden: Alaska’s signature

39 Thompson, 959 F.3d 804, 809 (distinguishing its decision in Esshaki v. Whitmer, 2020 WL 2185553 (6th Cir. 2020) involving Michigan’s ballot access and stay-at-home orders, finding that Ohio specifically allowed activities for gathering signatures. “So none of Ohio’s pandemic response regulations changed the status quo on the activities Plaintiffs could engage in to procure signatures for their petitions.”).
40 Libertarian Party of Illinois v. Pritzker, 2020 WL 1951687 at 4 (N.D. Ill. 2020).
41 Garbett v. Herbert, 2020 WL 2064101 at 1 (D. Utah 2020).
42 Fair Maps Nevada v. Cegavske, 2020 WL 2798018 at 2-3 (D. Nev. 2020).
43 Id. at 2.
44 Id. at 16.

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threshold is relatively minimal (one percent); signatures need not be gathered in person; ALP could have started its signature-gathering efforts over a year ago; Alaska’s stay-athome order was lifted before ALP even began gathering signatures; and the August 5 deadline provides much more time than any of the cases ALP cited. ALP has thus failed to establish that under the circumstances in Alaska, a “reasonably diligent” party could not gather sufficient signatures to gain ballot access if the party actually has the “modicum of support” necessary to warrant such access, and thus, it has not shown that the law creates more than a de minimis burden on its constitutional rights.
As a result, the State need only show that its signature-gathering requirements and deadline serve “important regulatory interests.”45 And this burden is easily met, because the Ninth Circuit has repeatedly held that signature-gathering laws serve the important regulatory interests of “preventing voter confusion, ballot overcrowding, and frivolous candidacies.”46 And the Supreme Court long ago recognized “the important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization’s candidate on the ballot.”47
Because the burden on ALP is slight and the State’s important regulatory interests are not seriously in question—after all, ALP concedes that the law is constitutional under normal conditions—the party cannot show probable success on the merits.

45 Arizona Green Party v. Reagan, 838 F.3d 983, 991 (9th Cir. 2016) (quoting Burdick, 504 U.S. at 434.) 46 Arizona Libertarian Party v. Hobbs, 925 F.3d 1085, 1093 (9th Cir. 2019). 47 Jenness v. Fortson, 403 U.S. 431, 442 (1971).

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2. ALP has not established irreparable harm absent an injunction, and the balance of the equities and the public interest favor not suspending the signature-gathering requirement.
ALP claims that it will be irreparably harmed absent an injunction based on its expectation that it will fail to gather sufficient signatures and will be denied access to the general election ballot. [Dkt. 5 at 7] But this kind of speculative harm is not enough to warrant a preliminary injunction. Rather a plaintiff “must establish that irreparable harm is likely, not just possible, in order to obtain a preliminary injunction.”48 Given the modest number of signatures its circulators must gather each day and the fact that it has more than twice as many registered voters as it needs signatures, [Dkt. 1 at 1] it is far from clear that the party will not meet the required threshold. And moral hazard complicates the situation: ALP does not just fear that it may fail to reach its target, it wishes to be relieved of the burden of even trying to reach it. Notably, the very relief requested by ALP—suspension of the signature requirement—was soundly rejected by all of the district court opinions ALP cites as favorable precedent. 49

48 Alliance for the Wild Rockies v. Cottrell, 632 F.2d 1127, 1131 (9th Cir. 2011).

49 Libertarian Party of Illinois v. Pritzker, 2020 WL 1951687 (N.D. Ill. 2020) (court acknowledged that “[s]uspending entirely the signature requirement without requiring candidates to otherwise demonstrate historical support would. . . extend far beyond these typical variations.”); Garbett v. Herbert, 2020 WL 2064101 (D. Utah 2020) (court rejected request to automatically allow candidate on the ballot, recognizing that “[t]he State has an important interest in ensuring candidates demonstrate a modicum of voter support before securing a place on a ballot.”); see also Fair Maps Nevada v. Cegavske, 2020 WL 2798018 (D. Nev. 2020) (“the relief Plaintiffs seek as to the In-Person Requirements generally requires the Court to get impermissibly in the weeds of designing election procedures because Plaintiffs ask the Court to order the Secretary to set up a system for collecting and verifying signatures offered to support an initiative petition electronically, for the first time, immediately.”); Esshaki v. Whitmer, 2020 WL 2185553

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Because the burden established by ALP is so slight and the moral hazard apparent, the balance of equities here tips strongly in favor of the State. The State should not be enjoined from enforcing its ballot access laws simply because ALP would prefer not to commit its resources to meeting the requirements. Nor is it in the public interest to suspend election laws whenever background circumstances that are not within the State’s control of the State make them more difficult to comply with than usual. The U.S. Supreme Court has long held that changing election laws on the eve of an election is disfavored, and recently reiterated this principle during this pandemic.50 V. CONCLUSION
Because ALP has not established its entitlement to a preliminary injunction, this Court should deny its motion. The Court should also dismiss this case because ALP lacks standing or, alternatively, because ALP’s complaint fails to state a claim under F.R.C.P. 12(b)(6) because Alaska’s ballot access laws do not infringe on ALP’s First Amendment rights, even under the unique circumstances of the COVID-19 epidemic.

(E.D. Mich. 2020) (“Simply put, federal courts have no authority to dictate to the States precisely how they should conduct their elections.”).
50 Purcell v. Gonzalez, 549 U.S. 1, 4, 127 S.Ct 5 (2006); Republican National Committee v. Democratic National Committee, -- U.S. --, 140 S.Ct. 1205 (2020).

Alaska Libertarian Party, et al. v. Gail Fenumiai, et al. Case No. 3:20-cv-00127-JWS

Opp. to Mot. for Prelim. Inj. & Cross-Mot. to Dismiss

Page 18 of 19

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DATED June 29, 2020.

KEVIN G. CLARKSON ATTORNEY GENERAL
By: /s/ Margaret Paton-Walsh Margaret Paton-Walsh (AK Bar No. 0411074) Cori Mills (AK Bar No. 1212140) Assistant Attorneys 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 cori.mills@alaska.gov

CERTIFICATE OF SERVICE
I certify that on June 29, 2020, the foregoing document was served electronically
on all parties via CM/ECF.
/s/ Margaret Paton-Walsh Margaret Paton-Walsh Assistant Attorney General

Alaska Libertarian Party, et al. v. Gail Fenumiai, et al. Case No. 3:20-cv-00127-JWS

Opp. to Mot. for Prelim. Inj. & Cross-Mot. to Dismiss

Page 19 of 19

Case 3:20-cv-00127-JWS Document 11 Filed 06/29/20 Page 19 of 19

KEVIN G. CLARKSON ATTORNEY GENERAL

Margaret Paton-Walsh (AK Bar No. 0411074) Cori Mills (AK Bar No. 1212140) Assistant Attorneys 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
cori.mills@alaska.gov

Attorneys for the State of Alaska

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

ALASKA LIBERTARIAN PARTY and )

JON WATTS,

)

)

Plaintiffs,

)

)

v.

)

)

GAIL FENUMIAI, in her official

) Case No. 3:20-cv-00127-JWS

capacity as Director of Elections, KEVIN )

MEYER in his official capacity as

) DECLARATION OF

Lt. Governor,

) 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 stated in this affidavit.

2. On July 7, 2019, the Alaska Libertarian Party (ALP) sent a letter to me

Case 3:20-cv-00127-JWS Document 12 Filed 06/29/20 Page 1 of 5

requesting reinstatement of limited political party status. On August 1, 2019, I responded

explaining that ALP had lost its political party status and would have to re-apply by filing

a petition. The letters are attached to this Declaration as Exhibits A and B respectively.

3. Each election cycle, nominating petition candidates under AS 15.25.140-

.200 submit notice of filing a nominating petition by June 1 in the election year, and in

order to get on the general election ballot, the candidate must submit signatures of

qualified voters by the date of the primary election equaling at least one percent of the

number of voters who cast ballots in the district for which the candidacy is sought in the

preceding general election. This is similar to the requirement for limited political parties

under AS 15.30.025, except for the deadline. Limited political parties do not have to

provide notice by June 1, but have to submit the petition at least 90 days before the

presidential general election. Both types of petitions can be filed at any time prior to the

deadlines provided.

4. At this point, the Division of Elections has not received any petitions from

other limited political parties. This is not all that surprising since the deadline for

submission of limited political parties is August 5, 2020 for this election cycle.

5. On the other hand, the Division of Elections has already received five

completed nominating petitions with signatures from individual candidates. Of the five

petitions submitted, four of them were submitted after Governor Dunleavy issued the

disaster declaration, and one was submitted in October 2019. To date, four of the five

petitions submitted have been found to contain sufficient qualified signatures for the

candidate to be placed on the ballot. The details of each of the nominating petitions that

Alaska Libertarian Party, et al. v. Gail Fenumiai, et al. Case No. 3:20-cv-00127-JWS

Declaration of Gail Fenumiai

Page 2 of 5

Case 3:20-cv-00127-JWS Document 12 Filed 06/29/20 Page 2 of 5

has been received and certified for the ballot are provided in the following paragraphs.

6. Nominating petition candidate Jamin L. Burton running for House District

7 turned in a total of 132 signatures on October 3, 2019. The minimum number of

qualified signatures needed was 73.

7. Nominating petition candidate Elijah M. Verhagen running for House

District 6 turned in a total of 77 signatures on June 1, 2020. The minimum number of

qualified signatures needed was 69.

8. Nominating petition candidate James Baisden running for House District 30

turned in a total of 103 signatures on June 10, 2020. The minimum number of qualified

signatures needed was 77.

9. Nominating petition candidate Ed King running for House District 34

turned in a total of 93 signatures on June 17, 2020. The minimum number of qualified

signatures needed was 89.

10. There have also been two significant signature gathering efforts on two

initiatives within the past year that may provide helpful information at least on the

general rate of qualification and how many signatures could be gathered in-person

directly preceding the pandemic. This information is available on the Division of

Election’s website: http://www.elections.alaska.gov/Core/initiativepetitionstatus.php.

11. The number of signatures required to get an initiative on the ballot must

meet three requirements as set forth in AS 15.45.140: (1) “equal in number to 10 percent

of those who voted in the preceding general election; (2) resident in at least three-fourths

of the house districts of the state; and (3) who, in each of the house districts described in

Alaska Libertarian Party, et al. v. Gail Fenumiai, et al. Case No. 3:20-cv-00127-JWS

Declaration of Gail Fenumiai

Page 3 of 5

Case 3:20-cv-00127-JWS Document 12 Filed 06/29/20 Page 3 of 5

(2) of this subsection, are equal in number to at least seven percent of those who voted in

the preceding general election in the house district.” For the initiatives filed in 2019, the

total number of qualified signatures required was 28,501.

12. 19AKBE, also known as the Better Elections Initiative, received petition

booklets from the Alaska Division of Elections on October 31, 2019. Initiative sponsors

turned in a total of 40,826 signatures on January 9, 2020. The Division of Elections

verified that there were 36,006 qualified signatures, which equates to a qualification rate

of 88 percent.

13. 19OGTX, also known as the Fair Share Initiative, received petition

booklets from the Alaska Division of Elections on October 23, 2019. Initiative sponsors

turned in a total of 44,881 signatures on January 17, 2020. The Division of Elections

verified that there were 39,174 qualified signatures, which equates to a qualification rate

of 87 percent.

14. Although the Alaska Libertarian Party appears to only be requesting

injunctive relief in the form of a reduction in the number of signatures required or

automatic approval to be placed on the ballot, it is important to understand the short

timeline in which the Division has to act. Because of these short timelines, any extension

of the August 5 deadline is not feasible.

15. The Division has to send out the general election ballots to certain

uniformed and overseas voters under the Uniformed and Overseas Citizens Absentee

Voting Act (42 U.S.C. 1973ff et seq.) by September 19, 2020. The Division must send

the ballots to the printer by September 1, 2020 to ensure these legal requirements can be

Alaska Libertarian Party, et al. v. Gail Fenumiai, et al. Case No. 3:20-cv-00127-JWS

Declaration of Gail Fenumiai

Page 4 of 5

Case 3:20-cv-00127-JWS Document 12 Filed 06/29/20 Page 4 of 5

met. This means the Division only has 26 days to review the petition, in addition to

operating and certifying the primary election and reviewing any nominating petitions that

may come in.

By: /s/Gail Fenumiai June 26, 2020

Gail Fenumiai

Date

Declarations have the same legal force as affidavits. 28 U.S.C. § 1746.

CERTIFICATE OF SERVICE
I certify that on June 29, 2020, the foregoing document was served electronically
on all parties via CM/ECF.
/s/ Margaret Paton-Walsh Margaret Paton-Walsh Assistant Attorney General

Alaska Libertarian Party, et al. v. Gail Fenumiai, et al. Case No. 3:20-cv-00127-JWS

Declaration of Gail Fenumiai

Page 5 of 5

Case 3:20-cv-00127-JWS Document 12 Filed 06/29/20 Page 5 of 5

 
 Christopher Wiest (admitted pro hac vice) KY Bar No. 90725; OH Bar No. 0077931 Chris Wiest, Atty at Law, PLLC 25 Town Center Blvd, Suite 104 Crestview Hills, KY 41017 513/257-1895 (v) 859/495-0803 (f) chris@cwiestlaw.com

Thomas Amodio, ABA No. 8511142 REEVES AMODIO LLC 500 L Street, Suite 300 Anchorage, AK 99501 Telephone: (907) 222-7100 Facsimile: (907) 222-7199 tom@reevesamodio.com Co-counsel for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

ALASKA LIBERTARIAN PARTY

:

AND

:

JON WATTS

:

Plaintiffs

:

v.

:

GAIL FENUMIAI In her official capacity as Director of Elections
AND

:

PLAINTIFFS’ REPLY IN SUPPORT OF

THEIR MOTION FOR PRELIMINARY

:

INJUNCTION WITH DECLARATION

OF SCOTT KOHLHAAS IN SUPPORT

:

KEVIN MEYER

:

In his official capacity as Lt. Governor

:

Defendants

:

CIVIL ACTION NO. 3:20-cv-127

1 Case 3:20-cv-00127-JWS Document 14 Filed 07/03/20 Page 1 of 11

I. Reply Introduction Defendants do not (and cannot) dispute that COVID-19 creates unprecedented burdens
on society, and, indeed, on these Plaintiffs. Their argument essentially boils down to an argument that Plaintiffs should have had a crystal ball or otherwise somehow predicted that a once-in-a-hundred-year global pandemic would interrupt and disrupt society and their signature gathering efforts. They do this by comparing the Plaintiffs with other groups who undertook to gather more signatures well in advance of the COVID-19 outbreak (because, frankly, those groups had to collect more signatures, which needed to be gathered well in advance), or by making the comparison between Plaintiffs and candidates who had to gather less than 100 signatures that could be gathered in a few weeks. Neither comparison is appropriate.
Certainly, if the COVID-19 global pandemic was a foreseeable event, it would be wholly appropriate to make the argument that Plaintiffs should have begun earlier, such as planning around the Alaska winter, which occurs every year and makes petitioning challenging. For foreseeable events, the failure to plan for and take steps to avoid pitfalls can clearly be blamed upon the Plaintiffs. But the COVID-19 pandemic was not foreseeable. No one saw it coming. And Plaintiffs began gathering signatures almost immediately after the Governor lifted his stayat-home order.
Defendants argue that the Governor’s orders do not prevent them currently from engaging in the act of petitioning, while ignoring the fact that other Government actors have closed the locations that Plaintiffs and their petitioners are normally are able to collect signatures at: public spaces where people gather. Defendants also completely ignore the public health risk that the law in question that they vigorously defend forces the petitioners to engage in (not to mention the risk to members of the general public whom the petitioner’s solicit signatures from).
2 Case 3:20-cv-00127-JWS Document 14 Filed 07/03/20 Page 2 of 11

II. Facts
This Court directed the Plaintiffs to obtain a report, from their petitioning team, and Plaintiffs have done so to the best of their ability.1
As of July 2, 2020, Plaintiffs have gathered a total of 1,959 signatures. (Declaration
Kohlhaas, attached). Since June 11, 2020, they have gathered 1,664 signatures in a three-week
period. Id. The Plaintiffs, through their petitioner team, have been gathering signatures every
day since June 11, 2020 (and before that). Id. Their most experienced petition gatherer has
experienced some level of success (but nothing like a normal year), while others have not. Id. It thus appears, if – and only if – the Plaintiffs’ luck and trend holds up, if COVID does not spike in Alaska like it has in other states in the south such as Florida and Texas,2 if Alaska’s Governor
does not lock the state down again in response to such a spike or a risk of a spike, if Mr. Thigpen
does not get sick or come down with COVID and remains on the job, and if the results they have
achieved to date continue (something that is also not certain) at the same rate, they may be able to hit 4,566 raw signatures by the August 5, 2020 deadline.3
That would, in turn, mean that the validity rate would need to be 70.3% or higher, which
is at the very top of the range used by Mr. Kohlhaas in calculating validity, adding yet another “if,” in terms of validity rate to the equation. That is a lot of “ifs.” In the meantime, Plaintiffs,
1 As explained in Mr. Kohlhaas’ report, managing a team of petitioners is a difficult proposition and petition gatherers are not always the most responsive. Plaintiffs have undertaken best efforts to comply with the Court’s order. 2 https://www.washingtonpost.com/national/reopening-reverses-course-in-texas-and-florida-ascoronavirus-cases-spike/2020/06/26/72eb5f6a-b7c5-11ea-a510-55bf26485c93_story.html (last visited 7/3/2020). 3 That calculation is based on 554 signatures per week, or 79 signatures per day. As of the date of this filing, there remains 33 days left to turn in the petition. Using the math and rate, and making the assumptions that all of the “ifs” are met, and the success rate remains the same, the Plaintiffs will gather another 2,607 more “raw” signatures, for a total of 4,566 signatures.
3 Case 3:20-cv-00127-JWS Document 14 Filed 07/03/20 Page 3 of 11

and their contract petitioners, continue to spend resources, time, effort, and money pursuing a petition drive in most difficult circumstances.
Notably, as before, the online signature gathering results have been abysmal: despite repeatedly soliciting signatures, only 12 more have come in through electronic signature gathering methods, proving that in person signature gathering remains the only viable option. Id.
III. Law and Argument A. Plaintiffs have standing Defendants begin by arguing that Plaintiffs lack standing. They are incorrect. To show
standing, Plaintiffs must: (1) directly suffered an injury in fact, (2) the injury must be fairly traceable to the defendant’s conduct, and (3) a favorable court decision must be likely to redress the injury. Rubin v. City of Santa Monica, 308 F.3d 1008, 1019 (9th Cir. 2002).
Any relief that this Court might award, including even a modest reduction in the signature threshold, will redress the injury that the Plaintiffs currently suffer, which is fully traceable to the challenged ballot access law. Plaintiffs have not yet met the requirements of the statute, and, it appears, unless the stars continue to align perfectly between now and August 5, 2020, will not be able to do so. It is likely to be the case that Plaintiffs will be slightly under the required number of signatures on August 5, 2020. Thus, even a slight reduction in the number of required signatures will likely be significant.
Mr. Watts, as a voter and Alaska Libertarian Party member who wishes to vote for that Party’s candidates, and the Alaska Libertarian Party, as an organization comprised of registered voters, which is forced to expend resources to comply with the statute that Plaintiffs are challenging, have standing to challenge Alaska’s limited party election laws. Storer v. Brown, 415 U.S. 724 (1974) (standing found, even where election law challenger could meet the
4 Case 3:20-cv-00127-JWS Document 14 Filed 07/03/20 Page 4 of 11

requirement); Kelly v. McCulloch, 2010 U.S. Dist. LEXIS 154735 (D. Mon. 2010) (voters have standing to challenge ballot access laws where they identify the candidate they wish to vote for but cannot due to ballot access laws); Democratic Nat'l Comm. v. Reagan, 2018 U.S. Dist. LEXIS 77690 (D. Az. 2018) (where a political party is adversely impacted or potentially adversely impacted by a challenged elections regulation, they have standing to bring suit AND compelling a political party to devote resources to comply with a regulation gives it standing); Kelly v. McCulloch, 405 Fed. Appx. 218 (9th Cir. 2010) (voters have standing to challenge ballot access laws); Thorsted v. Munro, 75 F.3d 454 (9th Cir. 1995) (same).
B. Plaintiffs’ Complaint states a claim Defendants claim that the injury and burden here is de minimis and thus Plaintiffs fail to state a claim. That assertion finds absolutely no support in the case law. Plaintiffs have stated a claim, for the same reasons they are entitled to a preliminary injunction, and incorporate their response below. C. Plaintiffs are entitled to a preliminary injunction The gist of the Defendant’s response is threefold: first, they argue that Plaintiffs have not been diligent; second, they argue that others, not similarly situated, have been able to achieve signature thresholds because, it appears, they began well before the COVID-19 pandemic occurred; and third, they argue that the threshold is not really burdensome this year, because it is not burdensome in normal years. Defendants contentions are incorrect across the board. As noted before, and as the updated declaration of Mr. Kohlhaas confirms, it is readily apparent that the signature threshold will be impossible to meet by the August deadline (or at all) in 2020 if Plaintiffs were to circulate solely online. In person signature gathering is thus
5 Case 3:20-cv-00127-JWS Document 14 Filed 07/03/20 Page 5 of 11

necessary. Defendants have presented no evidence whatsoever that would suggest that electronic signature gathering is an actual viable alternative.
Turning to in person gathering, Defendants first argue that Plaintiffs have not been diligent. This assertion is belied by the Supplemental Declaration of Mr. Kohlhaas. He declaration demonstrates that Plaintiffs have been diligent, and, in fact, have gathered 1,959 signatures as of July 2, 2020. His declaration demonstrates the significant difference (as can be seen from the results) between experienced petitioners and inexperienced petitioners, and that this difference is more pronounced during the COVID-19 outbreak. His declaration demonstrates that Plaintiffs will continue to be diligent: they simply have no choice but to exhaust their best efforts to meet the required signatures by the required deadline. But even then, it appears that they will probably come up short: perhaps barely short, but short nevertheless.
The Ninth Circuit has held that the burden on plaintiffs' rights should be measured by whether, in light of the entire statutory scheme regulating ballot access, "reasonably diligent" candidates can normally gain a place on the ballot, or whether they will rarely succeed in doing so. Libertarian Party of Washington v. Munro, 31 F.3d 759, 761-762 (9th Cir. 1994) (quoting Storer v. Brown, 415 U.S. 724, 742 (1974)).
The comparisons Defendants make, to petition efforts that began well before the COVID19 outbreak are simply not helpful. Indeed, if Plaintiffs could have foreseen the COVID-19 pandemic, and planned for it, they certainly would have begun their efforts last fall, when public gatherings were opened and crowded, crowds were present, and COVID-19 was nowhere to be found. But, COVID-19 was not foreseeable: not by Plaintiffs, not by Government officials, indeed not by anyone. To argue, and make the comparison that Defendants make, that someone who fortuitously began early is a comparator is simply inappropriate.
6 Case 3:20-cv-00127-JWS Document 14 Filed 07/03/20 Page 6 of 11

Defendants next argue that the Governor’s stay at home orders, through the middle of May, are not the cause of the burden. Certainly, they are not the only cause. But the fact remains that the State of Alaska was locked down until the end of May. And other public official’s orders that closed public spaces are still in force.4 And thus, Government action is certainly partially a factor in the difficulty and burden in terms of the ability to petition, but, more to the point, Government activity and burdens are the very essence of the requirement to achieve the threshold: a Alaska statute is being enforced against Plaintiffs in conditions that are difficult, and perhaps impossible, to comply with.
Finally, Defendants argue that the burden is “de minimis” or “slight.” Those contentions are simply erroneous, both factually and legally. It is easy to make light of the difficulty of signature gathering sitting in the comfort of an office building by making an argument. It is quite another thing to present evidence that it is as easy as Defendants make it out to be. Defendants offer not one iota of proof to contradict Mr. Kohlhaas’ initial and supplemental declarations about the severe difficulties experienced by petitioners. Defendants do not, for instance, come in with a declaration of a signature gatherer who in any way contradicts the declaration of Mr. Kohlhaas. That is telling, in no small part, because it not only demonstrates that Mr. Kohlhaas’ testimony on this score is unrebutted, but also because it suggests that there is no one able or willing to rebut it.
4 http://www.anchoragelibrary.org/about/about-apl/library-news/apls-safe-opening-plans-andservices/ (last visited 7/3/2020) (while the Library is partially open, it is clearly closed for petitioning requirements); http://alaskabaseballleague.org/view/alaskabaseballleague/ (last visited 7/3/2020) (baseball season cancelled for 2020); https://sites.google.com/alaska.edu/coronavirus/status?authuser=0 (last visited 7/3/2020) (suggesting gathering activities that would be conducive to petitioning large groups of people are not going on).
7 Case 3:20-cv-00127-JWS Document 14 Filed 07/03/20 Page 7 of 11

Under the prevailing U.S. Supreme Court cases of Anderson v. Celebrezze, 460 U.S. 760 (1983) and Burdick v. Takushi, 504 U.S. 428 (1992), courts are first instructed to look at the burden of the requirement. Where burden is severe, strict scrutiny applies. Id. Where the burden is “more than minimal” the flexible approach is used, which weighs the government’s asserted interest against the means by which it has chosen to pursue it. Id.
This is not, as Defendants argue, a de minimis burden case. Further, while signature gathering cases involving thousands of signatures are never a de minimis burden case, the situation on the ground this year makes that doubly true. Plaintiffs submit it is a “severe” burden case, but even if it is not, it is at least a modest to significant burden, which warrants a weighing of the government’s asserted interest against the means that it has chosen to pursue it. Id. That weighing does not justify the full 1% threshold this year.
Given that Plaintiffs have successfully gathered 1,959 signatures as of July 2, 2020 (which means that Plaintiffs, per their usual experience, have gathered between 1,175 and 1,371 valid signatures to date), and given that Plaintiffs continue to gather signatures at a rate of approximately 554 signatures a week (332 to 387 valid per week), or 79 per day, Plaintiffs acknowledge that a complete lifting of the signature requirement is likely not appropriate and does not take into account the asserted state interests.
Thus, Plaintiffs respectfully submit that this Court can fashion appropriate relief by lowering the threshold. Plaintiffs have no plans to stop their efforts unless they are legally unable to continue those efforts due to lock down orders. They submit that reducing the threshold by 50% to 1,606 signatures would give them full and complete relief. Even lowering the current signature requirement of 3,212 signatures to 75% of the normal number, or 2,409 signatures, is significant relief, which Plaintiffs will probably meet unless Alaska sees another
8 Case 3:20-cv-00127-JWS Document 14 Filed 07/03/20 Page 8 of 11

COVID-19 spike in the next month, such as is the case in Florida or Texas, or in the event that the Governor locks the state down again to prevent such a spike.
Under Fair Maps Nev. v. Cegavske, 2020 U.S. Dist. LEXIS 94696 (D. Nevada May 29, 2020), it is not appropriate to compare Plaintiffs efforts to those who began gathering signatures last year. Rather, it is appropriate to see if anyone this year has met the threshold at issue. And, as Defendants admit, no one at this time has met the limited party status. Three weeks after their filing on the Preliminary Injunction, it appears that Plaintiffs have an outside chance of reaching the threshold. But that is no reason to wait, or to deny relief.
In the past two months, numerous federal courts have addressed ballot access or voting requirements which, in normal times, are typically viewed as reasonable or appropriate even though they are moderately burdensome, but which have become unreasonable and oppressive in light of the COVID-19 outbreak. Esshaki v. Whitmer, 2020 U.S. App. LEXIS 14376 (6th Cir. 2020) (concluding petition gathering with the presence of COVID-19 and state orders regarding same created a severe burden and ordering relief); Libertarian Party of Ill. v. Pritzker, 2020 U.S. Dist. LEXIS 71563 (ILND 2020) (order permitting previously qualified parties and loosening the signature requirements in light of insurmountable hurdle of COVID-19); Garbett v. Herbert, 2020 U.S. Dist. LEXIS 75853 (Dist. Utah, 2020) (reducing signature requirements in light of COVID-19 outbreak); Democratic Nat'l Comm. v. Bostelmann, 2020 U.S. Dist. LEXIS 48394, 2020 WL 1320819 (W.D. Wis. 2020) (extending deadline in light of "excruciating dilemma that will soon be faced by eligible voters . . . [to] either venture into public spaces, contrary to public directives and health guidelines or stay at home and lose the opportunity to vote.").
9 Case 3:20-cv-00127-JWS Document 14 Filed 07/03/20 Page 9 of 11

Application of the challenged statutes, as applied this year, with the situation now
presented by the pandemic and as experienced by the Plaintiffs, who have demonstrated
reasonable diligence, demonstrates a severe, constitutionally unacceptable burden.
D. Remedies
Plaintiffs seek a reduction in the threshold, by reducing the threshold by 50% to 1,606
signatures, or to 75% of the normal number, or 2,409 signatures. Given the concerns raised by
the Defendants on the deadline, if the relief on the signature requirements is granted, there is no
reason to extend the deadline.
IV. Conclusion
Plaintiffs respectfully request the preliminary injunctive relief of reducing the number of
required signatures that they must turn in.
Respectfully Submitted,
/s/Christopher Wiest________________ Christopher Wiest (admitted pro hac vice) KY Bar No. 90725; OH Bar No. 0077931 Chris Wiest, Atty at Law, PLLC 25 Town Center Blvd, Suite 104 Crestview Hills, KY 41017 513/257-1895 (c) 859/495-0803 (f) chris@cwiestlaw.com
/s/Thomas Amodio Thomas Amodio, ABA No. 8511142 REEVES AMODIO LLC 500 L Street, Suite 300 Anchorage, AK 99501 Telephone: (907) 222-7100 Facsimile: (907) 222-7199 tom@reevesamodio.com Co-counsel for Plaintiffs
10
Case 3:20-cv-00127-JWS Document 14 Filed 07/03/20 Page 10 of 11

CERTIFICATE OF SERVICE I certify that I have served the foregoing upon all Counsel or parties, by filing a copy of the foregoing in the Court’s CM/ECF system this 3 day of July, 2020.
/s/Christopher Wiest
11 Case 3:20-cv-00127-JWS Document 14 Filed 07/03/20 Page 11 of 11

 
 UNITED STATES DISTRICT COURT DISTRICT OF ALASKA

Alaska Libertarian Party, et al. v. Gail Fenumiai, et al.

THE HONORABLE JOHN W. SEDWICK

3:20-cv-127-JWS

ORDER FROM CHAMBERS

July 10, 2020

The court has conducted its initial review of the parties’ briefing on Plaintiff’s request for a preliminary injunction. It appears that the court is likely to deny the motion in light of the showing made by Plaintiff as to the burden presented by the signature gathering requirements, as well as recent cases addressing this issue in similar circumstances. An order with a final decision and analysis will be forthcoming, but the court informs the parties of its initial position so Plaintiff’s signature gathering efforts might be increased. Insofar as the record shows, signature gathering efforts have not been made in Fairbanks, Juneau, or Ketchikan. Moreover, there is no evidence of canvassing or other efforts on Plaintiff’s part to target registered Libertarian voters for in-person or electronic signature gathering.

Case 3:20-cv-00127-JWS Document 17 Filed 07/10/20 Page 1 of 1

 
 Christopher Wiest (admitted pro hac vice) KY Bar No. 90725; OH Bar No. 0077931 Chris Wiest, Atty at Law, PLLC 25 Town Center Blvd, Suite 104 Crestview Hills, KY 41017 513/257-1895 (v) 859/495-0803 (f) chris@cwiestlaw.com

Thomas Amodio, ABA No. 8511142 REEVES AMODIO LLC 500 L Street, Suite 300 Anchorage, AK 99501 Telephone: (907) 222-7100 Facsimile: (907) 222-7199 tom@reevesamodio.com Co-counsel for Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA

ALASKA LIBERTARIAN PARTY

:

AND

:

JON WATTS

:

Plaintiffs

:

v.

:

GAIL FENUMIAI In her official capacity as Director of Elections

:

PLAINTIFFS’ NOTICE OF DISMISSAL

UNDER FRCP 41(a) WITHOUT

:

PREJUDICE

AND

:

KEVIN MEYER

:

In his official capacity as Lt. Governor

:

Defendants

:

CIVIL ACTION NO. 3:20-cv-127

Plaintiffs, by and through Counsel, provide notice of their dismissal of this matter

without prejudice pursuant to FRCP 41(a)(1)(A)(i); no answer has been served nor has any

motion for summary judgment been filed.

Case 3:20-cv-00127-JWS Document 18 Filed 07/13/20 Page 1 of 2

Respectfully Submitted,
/s/Christopher Wiest________________ Christopher Wiest (admitted pro hac vice) KY Bar No. 90725; OH Bar No. 0077931 Chris Wiest, Atty at Law, PLLC 25 Town Center Blvd, Suite 104 Crestview Hills, KY 41017 513/257-1895 (c) 859/495-0803 (f) chris@cwiestlaw.com /s/Thomas Amodio Thomas Amodio, ABA No. 8511142 REEVES AMODIO LLC 500 L Street, Suite 300 Anchorage, AK 99501 Telephone: (907) 222-7100 Facsimile: (907) 222-7199 tom@reevesamodio.com Co-counsel for Plaintiffs CERTIFICATE OF SERVICE I certify that I have served the foregoing upon all Counsel or parties, by filing a copy of the foregoing in the Court’s CM/ECF system this 13 day of July, 2020. /s/Christopher Wiest
Case 3:20-cv-00127-JWS Document 18 Filed 07/13/20 Page 2 of 2