ANCHORAGE, Alaska (KTUU) — More than a month after a key hearing, 11 American Samoan residents from Whittier will continue to wait for a court decision that could determine whether their voter misconduct cases proceed to trial — a ruling that hinges on whether the law requires proof they meant to deceive officials about their citizenship, or whether false statements alone are enough to prosecute.

The Alaska Court of Appeals heard arguments Jan. 15 in the case of Tupe Smith, an American Samoan woman facing five to 10 years in prison for voter misconduct. Smith’s case is separate but related to charges against 10 other American Samoan residents from Whittier, all facing similar charges.

Smith’s attorneys argue she made an innocent mistake in confusing government forms and had no intent to break the law. The state contends she knowingly made false statements under oath, pointing to records showing she marked herself as a U.S. citizen on some forms and a U.S. national on others between 2020 and 2023.

The case highlights a complex issue: American Samoans are classified as U.S. nationals but not U.S. citizens by the federal government, a distinction that has caused widespread confusion at federal, state and local levels.

Attorney General Stephen J. Cox, who was appointed Aug. 28, 2025, has continued the prosecution despite calls from American Samoa leaders to pursue administrative remedies instead.

HOW SMITH BECAME A DEFENDANT

According to her attorneys, Whittier officials encouraged Smith to run for the local school board and vote in local elections. Her attorneys say officials advised her to mark “U.S. citizen” on voter registration forms since there was no box for U.S. nationals.

In October 2023, the Alaska Division of Elections flagged Smith’s election records as “suspicious” and referred them to the Alaska Bureau of Investigation, according to court records.

In court filings, prosecutors say Smith marked herself as a U.S. citizen on voter registration forms in 2020 and 2022, and on Permanent Fund Dividend applications. But on other PFD applications during the same period, she marked herself as a U.S. national. The state argues this shows she understood the distinction and deliberately chose to misrepresent her status to vote.

THE LEGAL QUESTION

During the Jan. 15 hearing, the Alaska Court of Appeals questioned whether Alaska’s voter misconduct law requires proof of intent to deceive.

Neil Weare, co-director of Right to Democracy, a nonprofit representing Smith, said the court is considering an important question.

“Someone should not be facing five to 10 years in prison for checking the wrong box if they had no intent to mislead or deceive a public official,” Weare said in a statement.

But in court filings, Assistant Attorney General Kayla Doyle argued the charges “did not have anything to do with [Smith’s] belief in her ability to vote in certain elections; rather they concerned the straightforward question of whether or not Smith intentionally and falsely swore she was a United States citizen.”

The state has also pointed to language on voter registration forms that explicitly states: “If you are not at least 18 years old and a U.S. citizen, do not complete this form, as you are not eligible to vote.”

SYSTEMIC CONFUSION

Charles Ala’ilima, an American Samoan attorney representing Smith, attributed the charges to widespread misunderstanding of American Samoan status.

“State and local officials do not understand how someone can be a U.S. national but not a U.S. citizen, and many state forms do not account for American Samoans’ status as ‘non-citizen’ nationals,” Ala’ilima said. “So without any intent to mislead or deceive, many have ended up registered to vote in Alaska.”

In a 2025 statement, Alaska Deputy Attorney General John Skidmore defended the prosecution: “Voting is a right of citizenship. To be clear, you must be a citizen to vote in Alaska in any election—federal, state, or local.”

Smith is one of 11 American Samoans in Whittier facing criminal prosecution based on their legal status as “non-citizen” U.S. nationals.

CALLS FOR AN ADMINISTRATIVE SOLUTION

American Samoan Gov. Pulaali’i Nikoloa Pula and Congresswoman Uifa’atali Aumua Amata Radewagen have called on Alaska to pursue administrative solutions, such as removing ineligible voters from rolls without criminal prosecution.

In a statement, Gov. Pula said he faced a similar issue when applying for a federal security clearance. Despite marking “U.S. citizen” on federal forms, his clearance was eventually granted.

The state has rejected calls to dismiss the charges. In court arguments, prosecutors have maintained that Smith and the other defendants face serious felony charges as set by the Alaska Legislature, and that the allocation of prosecution resources is not an appropriate legal argument for dismissal.

ONGOING LEGAL PROCEEDINGS

Smith has a discovery hearing scheduled for March 4, though Courtview records show such hearings have been repeatedly rescheduled for months.

The other 10 defendants — including Smith’s husband, Michael Pese, along with Miliama Suli, Nelson Vaimoa, Salvation Mikaele, Chelsea Talia, Elisapeta Pese, Grace Galea’i, Jan Talia, Mark Pese, and Mathew Pese — also have discovery hearings scheduled for March that have been rescheduled multiple times. All 10 are related by blood or marriage, according to Pese.

The outcome of Smith’s appeal could affect whether the other cases move forward. If the appeals court rules that Alaska’s voter misconduct law requires proof of intent, prosecutors would need to demonstrate that the defendants knowingly lied rather than made mistakes on confusing forms.

The Alaska Department of Law said the case against the other 10 defendants is pending.