Alaska’s criminal appeals court has thrown out an indictment of a Whittier woman born in American Samoa who state prosecutors accused of felony voter misconduct nearly three years ago.
State troopers arrested Tupe Smith in 2023. Like others born in the U.S. territory of American Samoa, Smith is not a citizen. Instead, she is what’s known as a U.S. national and can’t hold public office or vote in elections outside the territory.
She told troopers she checked a box on a voter registration form indicating she was a citizen at the instruction of election officials in Whittier because there was no option for U.S. nationals, according to court filings. Smith told troopers she was aware she wasn’t eligible to vote for president but said she thought she was able to vote in local elections.
Smith’s attorneys asked an Alaska Superior Court judge to toss the indictment, saying the prosecution had misled the grand jury on whether Smith had intentionally registered to vote as a noncitizen. The judge declined to do so, leading Smith to appeal.
In an opinion issued Friday, the Alaska Court of Appeals threw out the indictment. The court found a state trooper who interviewed Smith gave an “inaccurate” summary of their conversation to the grand jury and that prosecutors had given jurors the wrong definition of the word “intentionally” in the voter misconduct statute.
“Smith may have honestly and in good faith believed that it was not wrong for her to identify herself as a U.S. citizen given her stated understanding that there was no difference between being a U.S. national and a U.S. citizen for purposes of voting in a local election,” Court of Appeals Chief Judge Marjorie Allard wrote in a unanimous opinion.
The grand jury “would likely have declined to indict Smith if it had received correct instructions and a more complete description of what Smith told the troopers,” Allard wrote.
Smith’s and her attorneys welcomed the ruling.
“The state’s prosecution against me and my family has been extremely difficult. I feel vindicated by today’s court decision,” Smith said in a statement provided by her legal counsel.
Right to Democracy Project co-founder Neil Weare, part of Smith’s legal team, said in an interview it was troubling that prosecutors charged her at all for what he said was an innocent mistake.
“Being confused about what box to check, especially when public officials tell you to check the box, should not be considered a crime at all, much less a felony that could mean up to five years in jail,” he said.
Despite Friday’s win, Smith said she worried “it will not mean the end of the state’s criminal targeting of the American Samoan community in Whittier.”
Smith is one of nearly a dozen Whittier residents from American Samoa facing voter misconduct charges. Prosecutors charged 10 residents, including Smith’s husband, with similar offenses last year.
Attorney Whitney Brown, who argued the appeal and is also representing Smith’s husband, said the ruling could lead the state to drop some of the charges against other American Samoans. But she said it was too soon to know for sure.
“We expect that this case will have some kind of implication on all of those cases,” Brown said.
Weare said he expected the state would have to reindict the other defendants if it wanted to move forward with prosecuting them.
What comes next for Smith’s case was not immediately clear Friday. The ruling dismisses the indictment but leaves open the possibility that prosecutors could seek to reindict Smith. Prosecutors could also appeal the ruling to the Alaska Supreme Court. The Department of Law did not respond to a request for comment.
