Alaska Drops Felony Voter Fraud Charges Against American Samoans After Appeals Court Ruling

Alaska's Department of Law announced Friday it is dropping voter misconduct cases against 11 residents of Whittier, a small town about 50 miles southeast of Anchorage, all of whom were born in American Samoa and charged with falsely claiming U.S. citizenship on voter forms.

The decision follows a ruling a week earlier by a three-judge Alaska Court of Appeals panel that threw out felony charges against Tupe Smith, the lead defendant in the case. The court found Alaska law requires prosecutors to prove a defendant had a "consciousness of wrongdoing" and intended to break the law, not merely that a statement on a form was false.

The panel also flagged problems with how a state trooper questioned Smith and with the grand jury process that led to her indictment, and it overturned a lower court ruling that had kept her charges alive.

Acting Alaska Attorney General Cori Mills said prosecutors reviewed the ruling against the facts of the remaining cases and concluded they could not prove guilt 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 in a statement.

Smith's husband, Michael Pese, had also been charged. 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 checked the citizenship box, and that she normally identifies herself as a U.S. national, not a citizen, on paperwork that offers that option.

A Real Legal Gray Zone

American Samoa is the only U.S. territory where people born there are not automatically granted citizenship at birth. Instead they are classified as U.S. nationals, a distinct legal status. They can serve in the military, hold U.S. passports, and vote in American Samoa's own elections, but they cannot vote in most U.S. elections or hold public office stateside without going through naturalization, a process that costs money and time.

Smith's attorney, Whitney Brown, said the appeals court ruling "establishes an important safeguard against imposing felony liability for an honest mistake," and that it "makes clear that Alaska law requires more than simply showing that a statement was false."

Neil Weare, part of Smith's legal team and co-director of the nonprofit Right to Democracy, told reporters the decision to drop the charges "raises questions about why this prosecution was even brought to begin with." He added that the state "really had no evidence of any consciousness of wrongdoing on the part of Michael, Tupe or the other defendants." Alaska's Department of Law has not conceded the prosecutions were baseless, only that it could no longer meet its burden of proof after the appeals court's ruling. Coverage from The Independent, Boston 25 News, and a wire version carried by Coast TV did not include Weare's comment, while Breitbart and The Guardian both did.

The Broader Noncitizen Voting Fight

The Whittier case lands amid a much larger federal push on noncitizen voting that has nothing to do with American Samoans, who are U.S. nationals, not foreign nationals. According to the Daily Signal, the Trump Justice Department has charged 50 noncitizen defendants with illegal voting or registration since the president's second term began, with 17 convictions so far and one acquittal. That compares with 13 noncitizen defendants charged over the entirety of Attorney General Merrick Garland's four years under the Biden administration, nine of whom were convicted.

Annualized, that's roughly 31 defendants a year under the current administration versus 3.25 a year under the prior one, per Daily Signal figures from the Justice Department. A department spokesperson told the outlet the numbers show "this department is enforcing the law against noncitizen voting in ways the last administration simply refused to."

Cleta Mitchell, co-founder of the Only Citizens Vote Coalition, argued to the Daily Signal that critics have shifted their position as evidence accumulated: "First the Left says this never happens, noncitizens never vote. Then you say, look at this. Then they come back to say, well, it's not widespread. How many illegal votes are OK with you?"

A separate case reported by Fox News illustrates the kind of prosecution the administration is pursuing against actual illegal voting by noncitizens. Anthony Tyrone Higgs, a Bahamian national admitted to the U.S. as a green card holder in October 1976, was arrested September 3 in Decatur, Georgia, after Homeland Security Investigations found he voted illegally in the 2020 election. DHS Secretary Markwayne Mullin said Higgs' record includes armed robbery, domestic violence, and assault on a police officer, along with resisting arrest, two counts of grand larceny, and two counts of possession of a weapon during a violent crime. White House spokeswoman Lauren Bis said, "Any noncitizens who vote illegally in our elections will be arrested and removed. American elections are only for Americans."

The two stories sit side by side in the news this month but describe different legal categories entirely. American Samoans hold a recognized U.S. national status with a documented history of confusion over registration forms that don't offer a national checkbox. Higgs and similar defendants named by DHS are foreign nationals with no citizenship claim who registered or voted under U.S. law they were never eligible for.

What remains unresolved is whether Alaska or other states will add a "U.S. national" option to voter registration forms to prevent future prosecutions of American Samoans for the same honest-mistake scenario Smith described. No legislative fix has been announced as of this writing.