Notes on Kohlhaas v. State of Alaska


It hasn’t been widely noted outside of Alaska, but WC’s home state adopted ranked voting, among a series of other election reforms, by citizen initiative last general election. The new election system is much like that adopted by California three years ago, except that the new primary election process returns four candidates instead of two. The four top candidates in the primary election are on the ballot in the general election. In the general election, the voters rank their choices. If, in that general election, no candidate gets a simple majority, then the candidate with the fewest votes is removed and votes that candidate received distributed according to those voters’ rankings.

The Republican and Libertarian parties in Alaska furiously challenged the initiative. They warned it might mean the death of political parties in Alaska. Well, yes, it might; that’s kind of the point. They were unsuccessful in attempts to keep the initiative from making the ballot. They were unsuccessful in defeating the initiative. And, most recently, they were unsuccessful in arguing the voter-adopted law was unconstitutional. In fact, it took the Alaska Supreme Court about 24 hours to shut the latest challenge down. Argument was January 18; the order was entered January 19.

So Alaska now has better disclosure of where the dark money is coming from, and a new election process. For at least two years; the Alaska Legislature can’t repeal a voter initiative for two years after it is enacted. Some notes:

U.S. Senator Lisa Murkowski (R, Alaska) is up for reelection. Senator Murkowski seriously displeased would-be dictator Donald Trump, and in revenge the disgraced ex-president endorsed a carpetbagger from Maryland, with no significant contacts with Alaska, named Kelly Tshibaka. Under the old system, the Republicans would have run their closed primary (only registered Republicans get to vote) and Murkowski would have likely lost. Then, in solidly Republican Alaska, Tshibaka might have won. That is much less likely to happen under the new system.

Oddly, the new rules will magnify even more the importance of redistricting. There are at least five lawsuits challenging the proposed 2021 redistricting map. If the Republicans don’t think they can retain control by playing primary election games, they will focus on gerrymandering. As has been the case in most redistricting efforts across the decades in Alaska, the Alaska Supreme Court will probably wind up drawing the final map.

Anyone who wants to predict how the new election rules will play out in statewide and local elections should have their opinion considered with an entire five pound block of salt. Consider, as just one example, current governor Mike Dunleavy’s bid for reelection. In recent weeks, recognizing that the rules have changed, Dunleavy has attempted to gaslight his last three years of executive branch chaos and recast himself as a moderate, education-supporting moderate.1 Besides Dunleavy, the leading candidates seem to be Les Gara (Democratic Party), Christopher Kurka  (Republican Party) and Bill Walker  (Independent). Libertarian candidates don’t seem to have a high profile right now. The crystal ball is mighty cloudy. The gubernatorial race seems to WC to be wide open.

Ken Jacobus, the attorney for Kohlhaas and a plaintiff himself in the earlier litigation, looked to be completely befuddled at oral argument on January 18. Twice, Chief Justice Winfree had to interrupt Jacobus’s bizarre rambling and ask him to return to the point. It might be time for Jacobus to take down his shingle and move on to a richly-deserved retirement. It might be past time.

WC thinks it is going to be an unusually interesting election.


1 No, WC isn’t exaggerating about the chaos. He’s had three attorneys general, two forced to resign; three chiefs of staff, and has lost more lawsuits than former Republican Governor Sean Parnell. Only the pandemic saved him from a recall election that he was likely to lose. He either can’t do arithmetic when setting the state budget, or thinks the voters can’t. He has broken pretty much every campaign promise he made. His promise of big, fat Permanent Fund dividends and painless budget cuts got him elected. He delivered neither.