Cole

Dermot Cole





Unless the Supreme Court intervenes and issues a stay—which I am guessing is unlikely—the Dunleavy recall campaign will start by Feb. 10 on the second signature-gathering phase, with 71,252 signatures needed to force an election.

On Friday, Anchorage Superior Court Judge Eric Aarseth made quick work of objections to the recall from the attorney general’s office and a pro-Dunleavy group that calls itself Stand Tall With Mike. The judge said the state wrongly rejected the recall petition in November and it should be the voters who decide if the campaign gathers the signatures.

Alaska Public Media said that former Fairbanks Sen. Pete Kelly and businessman John Binkley, whose family owns the Anchorage Daily News, were among those attending a fundraiser in Anchorage for Stand Tall Friday night.

Neither Stand Tall nor the pro-recall group face any campaign reporting requirements at the moment, but if they transfer any donations to use after the signature stage, the amounts will have to be reported. This hole in the financial disclosure rules is one of many shortcomings in the recall laws, a subject long avoided by legislators and governors.

This statewide recall is unlike any other in Alaska history. In the first stage last summer, the backers collected nearly 50,000 signatures in little more than a month, a show of strength that forced Dunleavy to abandon many of his most unpopular budget plans, except for the University of Alaska and the ferry system.

Before the fundraiser, Dunleavy said that if the Aarseth ruling is allowed to stand, “What happens now is there’s really no standard, no hurdle to be recalled. This becomes a political recall, and you can be recalled for any reason at all.”

Dunleavy is wrong. What he said is not true. If he wants to understand the standards and the reasons, he should read the statement submitted with the recall petition, which alleges specific violations of state law and the Constitution.

He’s right that this is a political process. It is established in the Alaska Constitution.

Dunleavy will say that Alaskans are pushing the recall for reasons other than those on the statement. He has claimed on other occasions that his support of President Trump is a big factor and he is a victim of the “swamp” and special interests who support big government.

No doubt there are additional reasons beyond those listed on the petition, but these specifics are real and his claim is irrelevant.

Dunleavy will have money from Republican business leaders, his brother Francis in Texas and others to fight the recall. What he won’t have is a good legal argument to keep it off the ballot, which was clear from Friday’s hearing in Anchorage.

Dunleavy probably hasn’t read the legal history of recall campaigns in Alaska or the attorney general opinions that preceded the one that AG Kevin Clarkson wrote to try to stop the recall.

Because the Legislature has not shown any enthusiasm for writing a clear recall law, the standards in Alaska stem largely from court decisions made over decades about local and state recall efforts. In general, the courts have said that if specific violations of law or acts of incompetence are identified, then it should be up to the voters to decide the fate of the political official, assuming the signature hurdle is met.

Attorneys for the state and the group formed to defend Dunleavy argued at length Friday that Alaskans would be unable to get a full understanding of the issues in the recall petition because the 200-word statement in the petition doesn’t explain every last detail. State law prohibits a statement longer than 200 words.

They didn’t use these terms, of course, but the thrust of the state and Stand Tall argument is that voters are too dumb, too lazy or so far out of the mainstream discussion of Alaska politics that they won’t know all about the recall legal claims from a mere 200 words.

Speaking for the attorney general’s office, attorney Margaret Paton-Walsh said that some voters may show up at the polls knowing only of the 200-word statement from the recall committee and a 200-word response from Dunleavy.

“We can’t assume that voters know anything that isn’t in that statement,” Paton-Walsh said. “There may well be campaigning, there’s media reports, but not everybody reads the same newspapers or pays the same attention. But all voters have a right to be fully informed when they’re presented with a petition to sign or when they’re voting in an election. And I don’t think we can assume that campaigning is going to fill in the gaps in the statement of grounds.”

The statement of grounds, displayed at a polling place, is supposed to provide an uninformed voter with everything needed to make a good decision, according to the state and Stand Tall.

This is an exceptionally weak argument and one that didn’t win any points with the judge.

Stand Tall and the state spilled many thousands of words and hundreds of pages arguing their points, so it is ironic to hear them go on at length claiming that 200 words can explain anything if you set your mind to it.

Speaking for Stand Tall, attorney Brewster H. Jamieson delivered an ineffective discourse consisting mostly of jargon and doubletalk.

He said the recall backers, “Should not be allowed to present the signers and the voters with a Sudoku puzzle, which is effectively what they’re doing. This renders the entire application void. It lacks particularity, and in this form, it’s a form of insinuation, it can’t be corrected. The court should not provide the solicitude, much less reward RDC’s (Recall Dunleavy Committee) sharp drafting practices.”

As I’ve written here, I think the strongest allegation against Dunleavy is that he announced that he would not appoint a judge from a list provided by the Alaska Judicial Council, a violation of the Constitution and the law. He reversed himself because of political pressure.

The violation is summarized in the recall committee statement this way: “Governor Dunleavy violated Alaska law by refusing to appoint a judge to the Palmer Superior Court within 45 days of receiving nominations.”

Jamieson said that statement is “deliberately misleading.” That’s not true at all.

He went on:

“What are they actually saying? It has to go and be understood clearly by potential signers and voters. It insinuates that no appointment was made and that a vacancy occurred. Maybe it did. Maybe it didn’t. You cannot tell from looking at that, It simply omits from its factual basis whether or not an appointment actually was made. This is at least incomplete and it renders it deceptive,” he said.

“If I’m walking out of a grocery store with my armful of groceries and I’m asked to sign this, I’d say to myself, maybe he didn’t appoint, maybe he did, I can’t tell for sure. It insinuates and insinuation is it might be true or it might not be true. That’s the definition of insinuation,” he said.

If there is insinuation, it is in Jamieson’s imagination.

His most bizarre comment was: “Charges must be clear, complete, unambiguous and they shouldn’t contain truthiness or falsiness, which many of these charges do contain.”

Comedian Stephen Colbert began using “truthiness” 15 years ago, saying that it describes something that you want to be true, even if it is not. As for “falsiness,” which is a new one to me, perhaps that describes the legal arguments of Stand Tall.

Former Attorney General Jahna Lindemuth, representing the recall committee, said the state and Stand Tall were overstating the claim that voters had to be fully informed from a statement of less than 200 words.

“This is not the only information that the voters will have, What is required is that we properly frame the issue for the voters and allow the official to respond in his 200 words,” said Lindemuth.

“If the voters don’t understand or if they don’t think the cause is alleged, they won’t sign it and they won’t vote for recall when it comes to that time,” she said.

The state and Stand Tall said that the recall group could have chosen to focus on a smaller number of alleged violations of the law, which would have allowed the group to explain everything in 200 words.

The judge questioned that logic.

“Why do they have to choose if they sincerely believe that all of these allegations exist and that they can prove them in a campaign process for the voters to decide later on? Why do they have to choose? If you get a situation that is a complex set of facts or complex area of law—everybody here filed probably 75 pages trying to explain what’s going on here—are they shut out then in terms of being able to have their application considered?” Aarseth asked.

The judge compared the 200-word statements to opening statements in a trial, which are followed by proceedings that may take 10 times or 100 times longer to explain.

“To follow your analogy though, your honor, we may have some jurors who don’t show up every day or who sleep through part of a trial, that campaign can’t fill the gap,” Paton-Walsh said.

“There’s no provision for that in the system, right? The campaign doesn’t reach everybody equally in the state of Alaska. But every voter has a right to be as fully informed as they can be. And that’s what the statement of grounds is supposed to do. Granted, 200 words may not be a lot, but the committee made a choice to plead more grounds than it needed to and it chose to do it in this way.”

OK, sure. But anyone who shows up at a polling place and decides how to vote based on dueling 200-word statements is hopeless. Aarseth made the right decision.

Dermot Cole can be reached at dermotmcole@gmail.com

Load comments