Alaska drops voter-misconduct cases against American Samoans after appeals court ruling

American Samoans are US nationals, not citizens at birth

Alaska prosecutors said Friday that they were dropping voter-misconduct cases against 11 American Samoan residents of Whittier who checked the “US citizen” box on voter registration forms, after a state appeals court a week earlier threw out felony charges against one of the defendants, Tupe Smith.

The three-judge Alaska Court of Appeals panel held that state law requires proof that defendants who erroneously filled out voter registration forms had a “consciousness of wrongdoing” and intended to break the law. The panel found flaws in a state trooper’s questioning of Smith and in the grand jury process that led to her indictment, and it overturned a lower court’s decision that had kept the charges against her alive. Acting Attorney General Cori Mills said in a statement that after reviewing the appellate decision and applying the facts, prosecutors concluded that they could not prove cases against Smith and the others beyond a reasonable doubt.

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

Smith’s lawyer, Whitney Brown, said last week that the appeals court decision “establishes an important safeguard against imposing felony liability for an honest mistake.” Neil Weare, a co-director of the Right to Democracy nonprofit who is part of the legal team representing Smith and her husband, Michael Pese, said Saturday that the decision to drop charges “raises questions about why this prosecution was even brought to begin with.”

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

American Samoa is the only US territory where residents are not automatically granted citizenship by being born on American soil; instead they are considered US nationals. American Samoans can serve in the military, obtain US passports and vote in elections in American Samoa, but they cannot hold public office in the US nor participate in most US elections. Paths to citizenship exist through naturalization, a process that can be expensive and cumbersome.

Smith was arrested after winning election to a regional school board in 2023. She has said she relied on erroneous information from election officials in Whittier when she identified herself as a US citizen on voter registration forms. Smith said she marks herself as a US national on paperwork, but when there was no such option on voter registration forms, she was told by city representatives that it was appropriate to mark herself as a citizen, according to court papers.

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

In all, 11 people from Whittier, about 60 miles (100km) southeast of Anchorage, were charged with falsely claiming US citizenship either when registering to vote or attempting to vote.