The following is an Op-Ed piece by Charles Ala’ilima and Neil Weare:
Have you heard about the eleven American Samoans in Whittier, Alaska who are being criminally targeted by the state for voting? You may be surprised to learn what is actually happening on the ground—and why other American Samoans living throughout the 50 states could be at risk.
When American Samoans move to Alaska—or really any state—what rights they do and do not have is confusing. Most understand that when they are no longer residents of American Samoa, they can no longer vote there. But many have the impression that once they establish residency in a state, they can vote in state and local elections, just not federal ones.
What about in Alaska? Like all Alaska residents, American Samoans are eligible to apply for Alaska’s Permanent Fund Dividend (PFD), an annual cash payment made to residents of the state. Once they apply, they are often automatically registered to vote—even when they indicate they are not a U.S. citizen and make clear they are a U.S. national only. Once registered, Alaska sends them a voter registration card and reminders to vote. Alaska law also defines “United States citizen” to include “nationals from American Samoa” for the purpose of certain state welfare benefits. They are not recognized as U.S. citizens for other state benefits, making them ineligible.
If this is difficult to understand, you are not alone.
Alaska state and public officials are just as—if not more—confused. Many know little about American Samoa, much less that all U.S. citizens are U.S. Nationals but that only people born in American Samoa are labeled as so-called “non-citizen” U.S. nationals. Because American Samoans carry a U.S. passport, many public officials in Alaska and other states might assume that means they are U.S. citizens. As a result, many American Samoans report being told by state and local officials that they are in fact eligible to vote. When American Samoans ask which box to check on voter registration and other forms, people report that public officials often instruct them to select the box indicating they are a U.S. citizen when there is no box for “U.S. National.” Some elected officials in Alaska have even organized “Get-Out-The-Vote” campaigns encouraging the American Samoan community to register and vote. As a result of all this, confusion in the American Samoan community about voting is widespread throughout Alaska, as it is in many other states as well.
When someone who is not eligible to vote nonetheless does so, in most states it is not a crime unless they acted with some kind of fraudulent intent. If they were genuinely confused or mistaken, it is simply not a crime. This is especially true when a public official actually instructs someone that they are eligible to vote, or that they should indicate they are a U.S. citizen on a voter registration application.
Alaska stands alone—for now—in arguing that American Samoans should face felony charges and up to ten years in jail even if they were automatically registered to vote by the state and even if a public official instructed them they are eligible to vote or to check the U.S. citizen box. With hundreds of American Samoans automatically registered to vote in other states like Oregon, this is a problem that could spread beyond Alaska.
We are part of the legal team that is representing Tupe Smith in Alaska v. Smith, the first of nearly a dozen criminal cases Alaska has filed against American Samoans. In her case, the Alaska Superior Court acknowledged in a preliminary ruling that it was “sympathetic towards the confusing nature of the PFD automatic voter registration, the lack of voting right information regarding U.S. nationals, and navigating rights as a U.S. national.” Nonetheless, it ultimately agreed with Alaska prosecutors that it did not matter that “Ms. Smith may have thought she could vote for state elections,” or that “a voting official may have given her incorrect information.”
The Alaska Court of Appeals is now questioning that ruling, asking in a recent order granting review if Alaska is required to prove that someone accused with voter misconduct “intended to mislead or deceive a public official.” This is the kind of legal standard required in most states for criminal charges related to voting.
This is a critical moment. If the argument advanced by state prosecutors prevails, it could mean potential criminal liability for an untold number of other American Samoans in Alaska who have been caught up in Alaska’s confusing web of automatic voter registration and misinformation.
The State of Alaska, however, seems undeterred. Since the Alaska Court of Appeals first questioned the legal standard advanced by state prosecutors, it has filed charges against ten more American Samoans, with their arraignment scheduled for May 2. So even as the State is unclear about what legal standard applies to this kind of alleged voter misconduct, it continues to seek criminal prosecution and serious jail time.
At the same time, Alaska has done little to fix its system of voter registration, educate the public officials who administer elections, or ensure that American Samoans in Alaska are given accurate information about voter eligibility.
State prosecutors also explained in charging documents that their investigators targeted American Samoans in Whittier because voting records showed their “identified place of birth was outside of the United States.” This year of course marks the 125th Anniversary since the U.S. flag was raised over Pago Pago harbor and American Samoa became a part of the United States.
All this confusion can and should be resolved by simply recognizing what is clear—that for 125 years, fully half the existence of the United States, American Samoa has been “in the United States” for purposes of the Citizenship Clause of the U.S. Constitution. This is what the leaders who signed the Deeds of Cession believed. They also saw no conflict between U.S. citizenship and the preservation of their land and the Fa’a Samoa. They were right then and they are right now. The Deed signers and other American Samoan leaders protested when the U.S. Navy told them years later that the federal government would not recognize them as U.S. citizens, but rather would impose on them the subordinate status of “non-citizen” U.S. national, which includes the responsibilities of “permanent allegiance” to the United States but not the accompanying rights. They were right to object: no federal, state, territorial, or local official or legislative body has the power to deny what the Constitution guarantees.
The stakes now could not be higher, with American Samoans in Alaska and potentially other states facing the real potential of jail time simply for doing as they were told by public officials.
The State of Alaska should look internally and fix its own problems before it accuses anyone born in American Samoa of committing a crime. And after 125 years, it is time to finally recognize that American Samoa is “in the United States” and that people born there have the same right to citizenship as people born anywhere else in the United States.
Charles Ala’ilima, an American Samoan Attorney, and Neil Weare, Co-Director of Right to Democracy, represent Tupe Smith in Alaska v. Smith. They were also co-counsel in Fitisemanu v. United States and Tuaua v. United States.
