A filing today in court reinforces the argument that Ballot Measure 2, which remade Alaska’s election laws, is unconstitutional.

The brief was filed by former Lt. Gov. Mead Treadwell and former State Rep. Dick Randolph, who are represented by former Attorney General Craig Richards of Anchorage, and lawyer Daniel Suhr of the Liberty Justice Center of Chicago.

The appeal says that because Alaska is a younger state and its constitutional convention was more recent than other states, there are a plethora of documents available to understand what the authors of the Alaska Constitution meant when designing Alaska’s election system.

“…courts and counsel have a myriad of resources to know exactly what the delegates thought as they crafted the state’s founding charter. The journal, the staff reports, the committee drafts and notes, the models from other states, all are available in PDF at the click of a mouse,” the court filing says.

“Here, those reams of historical materials all point to a single definitive conclusion for this case: major portions of the recently adopted Initiative 2 transforming Alaska elections are entirely unconstitutional. The voters were closely split on whether the reforms adopted in Initiative 2 are good policy, but both the courts and the statutory initiative process ‘have no power to rewrite constitutional provisions no matter how clearly advantageous and publicly supported a policy may appear to be,'” the appellants say in their brief.

Last November, with millions of dollars spent to convince voters to upend the primary and general elections, Ballot Measure 2 passed, ushering in a voting method that eliminates the primary election in its traditional sense. The current August election is not a primary at all, but has all names on a single ballot regardless of party, with the top four vote-getters advancing to the General Election, where they battle it out in a ranked-choice ballot scenario. Such a scheme has never been tried before anywhere in America.

It’s not constitutional, Treadwell and Randolph argue.

“Courts must enforce the Constitution as written, and the people may only change it by going through all the safeguards of the amendment process,” their brief says.

“Initiative 2’s election procedures are incompatible with that that Constitution. Instant Runoff voting for the office of governor is incompatible with the plurality principle embedded in the state constitution, and Initiative 2’s failure as to the governor’s office cannot be severed from other offices. Similarly, the non-party primary is incompatible with the design of the governor-lieutenant governor ticket in the state constitution, and this failure cannot be severed from other offices,” it continues.

“The non-party primary also violates the freedom of association for political parties built into the structure of the state constitution’s design for elections. For these reasons, much of Initiative 2 must be enjoined as violative of the state constitution,” it says.

Article III, Section 8 of the Alaska Constitution requires that the governor be elected by a plurality of voters, not a majority as required by Initiative 2. That makes. BM-2’s instant-runoff voting for governor unconstitutional.

The appellants say that the meaning of the Constitution is clear: “‘The greatest number of votes’ means a plurality of votes. Black’s Law Dictionary 955 (6th ed. 1990) (‘when there are more than two competitors for the same office, the person who receives the greatest number of votes has a plurality, but he has not a majority unless he receives a greater number of votes than those cast for all his competitors combined.'”).

Treadwell and Randolph also argue that even if ranked-choice voting is considered a “method of voting,” it still must abide by other constitutional provisions.

“If the Alaska Legislature passed a law excluding a group of people from voting based on race, to pick an extreme example, that would clearly violate Article I, Section 1 of the Alaska Constitution (‘all persons are equal and entitled to equal rights, opportunities, and protection under the law’) even if it were a “’method of voting . . . prescribed by law.’ The point is that any new ‘method’ or ‘system’ of voting, like instant-runoff voting, must be consistent with the other provisions of the Constitution, including the plurality requirement of Art. III, Sec. 3,” they say.

The Constitution’s authors were cognizant that at times people are elected with a plurality and not a majority, and yet accepted this method for Alaska:

“This language requiring only a plurality to elect the governor reflected a conscious choice on the part of the delegates. In the pre- convention materials provided by the Public Administration Service, the delegates were advised: ‘In all states the governor is elected by popular vote. In most states the candidate receiving the highest number of votes is elected, even if that is less than the majority of the total vote. Under the two-party system, plurality elections usually give the same results as a majority requirement. But with three or more candidates, the election might go to one receiving less than an absolute majority, and a few states have special provisions for such a contingency.'”

Treadwell and Randolph are entering the case with an amicus brief; the original case was brought by Scott Kohlhass, a libertarian who has run for office several times.

State and intervener briefs are due Dec. 6, and the case is scheduled for oral arguments on Jan. 18. The Treadwell-Randolph amicus brief in its entirety:

Read the entire argument here: