The long-awaited final order in Recall Dunleavy lawsuit is finally out and it's a doozy

The order sets up two critical bits of precedent on recalls and the governor's veto power. Unsurprisingly, Dunleavy is now calling on the Legislature to make it harder to recall elected officials.

Happy Friday, Alaska! It’s been an interesting week and one where I wish I could’ve kept up better. It turns out salmon weren’t the only thing I caught on the weekend trip down to the Peninsula and I’ve been dealing with some crud throughout the week.

In this edition: A quick rundown of the Supreme Court’s order on the Dunleavy recall, Dunleavy’s scorched-earth response, a peek into the federal fundraising, the reading list and weekend watching.

Final order on the Recall

Nearly 18 months after the Alaska Supreme Court decided the Recall Dunleavy campaign can begin collecting the signatures to call a special election to remove the governor from office, the court today released its final order on the lawsuit. In doing so, the court set two critical bits of precedent that will have long-lasting impacts on recalls and vetoes in Alaska. And, of course, in light of the ruling, Gov. Dunleavy is now calling on legislators to change state law to make it more difficult for voters to recall elected officials and renewed his call to alter the makeup of the courts. But first, let’s break down what today’s order says.

Regarding recalls, the Supreme Court formalized a largely permissive approach to calling recalls. They rejected the state’s claim that the Division of Elections and/or the courts should essentially screen out recalls for what they say are “harmless” violations of state law or the Alaska Constitution. Whether or not conduct covered by claim in a recall merits removal from office, the Supreme Court ruled, is up for the voters and the voters alone to decide. From the ruling:

"The state argues that 'a harmless act with no lasting impact'—like the failure to appoint a judge within the time allowed by statute—should not be grounds for recall because if it is, the process is effectively 'a no-cause political recall.' More generally, the state argues that the Division (of Elections) and the reviewing courts should act as gatekeepers to determine which allegations are serious enough to be presented to voters. … But it is for the voters—not the Division (of Elections) or the courts—to judge the seriousness of an alleged ground. The people asked to sign petitions must decide whether the allegations are serious enough to warrant a recall election; each voter in the voting booth must decide whether the allegations are serious enough to warrant removal from office."

The ruling also addressed criticism that Dunleavy and other critics of the recent slate of recalls have levied at the efforts: That they’re driven by political disagreements more than actually disagreements over the underlying claims in the recall petitions. Here, the court acknowledges that a recall may be driven by something other than the acts covered by a petition but, again, rules that the ultimate decision should be left to the voters. From the ruling:

"We are not naive to the reality that some voters will vote for or against recall motivated by policy differences or political loyalties totally divorced from the grounds alleged in the recall petition. This will be the case regardless of how the legislatures states the grounds for recall and how those grounds are defined. … But we cannot police the motivations of recall committees, petition signers, or voters; our task is to determine whether the recall application's allegations are legally sufficient and are particular enough to give the targeted official fair notice of the claim."

Why it matters: It means that, essentially, the bar to recall elected officials in Alaska is relatively straight forward. If the allegations mounted by the recall group are true and they meet one of the four categories in state law—lack of fitness, incompetence, neglect of duties or corruption—then the recall can move forward. And just because the state or the courts think that that one of the claims is no big deal doesn’t mean they get to cut off the effort. As with all things election-related, the courts defer to the voters to make the ultimate decision.

Regarding vetoes, the court weighed in on the overall constitutionality of Dunleavy’s veto of the $334,700 in court system funding over his disagreement with a ruling on an abortion case. Here, the court’s ruling is somewhat narrow but significant, finding that vetoes with the intent of punishing or influencing another branch of government are violations of the separation of powers doctrine. From the ruling:

“In short, the separation of powers doctrine is intended in part to ensure that the judiciary is not pressured to decide cases with one eye on its budget. We conclude that the doctrine may be violated by a governor's use of the veto power with the intent of pressuring the courts to rule in a particular way,” the court ordered. “The veto power, though discretionary, may be exercised only within constitutional limits."

In an dissent on this point, Justice Craig Stowers asked how the court could actually determine the intent behind the veto was to influence the courts and noted that the separation of powers doctrine isn’t explicitly laid out in the Alaska Constitution. He also echoed a lot of the talking points about “standardless recall petitions.”

Dunleavy’s response

In a statement, the governor used the order to call on the Legislature to make it more difficult to recall elected officials.

“The Alaska Supreme Court today issued an opinion that creates a standardless recall process, subjecting elected officials at every level, and across the political spectrum, to baseless, expensive, and distracting recall elections by their political opponents,” he said a prepared statement. “The Legislature can and should fix the law to create well-defined recall grounds, preserving the right of the people to recall elected officials for legitimate reasons, but preventing the political free-for-all created by today’s decision.”

Exactly how one would determine “legitimate reasons” for recall wasn’t explicitly explained, which is the crux of the Alaska Supreme Court’s ruling. The courts have argued that the decision on the legitimacy of a recall should rest with the voters. Dunleavy, it seems, would like to see it handled differently.

Murkowski holds commanding financial lead in race for 2022

(Obligatory: The 2022 election will be conducted in an unprecedented manner with an open primary where the top four finishers facing off in a ranked-choice general election so who really knows how anything affects anything.)

This Thursday marked the release of the latest campaign finance reports in the race for U.S. Senate. Basically put, Alaska’s U.S. Sen. Lisa Murkowski smashed far-right challenger Kelly Tshibaka by a wide margin in just about every category. Murkowski’s fundraising for the a period running from April 1 to June 30 is just over $1 million while Tshibaka brought in a little more than half with $544,018.79. The on-hand cash difference is significant with Murkowski carrying $2.3 million to Tshibaka’s $275,664.79. It’s interesting because the reports cover the first full period where Tshibaka was campaigning as well as the week after Trump delivered his expected endorsement of Tshibaka over Murkowski.

What’s interesting is that the Trump endorsement doesn’t, according to the raw reports, appear to have resulted in a boon for Alaska returnee Tshibaka. Murkowski ever so slightly outpaced Tshibaka on the day the endorsement was delivered and significantly outpaced her by the end of the month. Here’s a quick crunch of the numbers I put together:

Reading list

Weekend watching

Three weeks ago, Klondike, the dog of Alaska’s Energy Desk journalist Rashah McChesney, suffered a pretty horrific leg break after leaping from a moving car in pursuit of a deer. Things looked pretty bad at first but through some hard work of everyone in Juneau and the support of many, many people online, the big ol’ pup is on the mend with a fair bit of metal holding his leg together. Here’s the video from the duo’s latest update:

Have a nice weekend, y’all.