On Oct. 27, Anchorage Assembly members Crystal Kennedy, Jamie Allard, and Kameron Perez-Verdia introduced a Resolution (AR 2020-386), which called for a special election to replace resigned Anchorage Mayor Ethan Berkowitz.  The resolution cited municipal code, which reads “a vacancy in the office of mayor shall be filled at a regular or special election held not less than 90 days from the time the vacancy occurs.”

Yet on Nov. 4 the Assembly rejected AR 2020-386, and Perez-Verdia, one of the resolution’s sponsors, publicly stated that the Assembly had an “option” to hold the special election.    And so, despite the language that a vacancy “shall be filled at a regular or special election,” the majority of the Assembly claims that “shall be filled” gives them an option to do so.

Can they do that?  Probably.  Should they?  No.

First, what does the law say?  “A vacancy in the office of mayor shall be filled at a regular or special election held not less than 90 days from the time the vacancy occurs. If less than 90 days remain in the term when the vacancy occurs, the vacancy shall not be filled.”

…the position of mayor is by far the most powerful and crucial elected position in the municipality.

In other words, Anchorage code contemplates a situation when the mayoral vacancy “shall not be filled” – when “less than 90 days remain in the term when the vacancy occurs.”  That is not the case here, as Mayor Berkowitz resigned Oct. 23, and the regular municipal election is slated for April 6, 2021 – 165 days by my count, nearly six months later, and well over the 90-day barrier.

Holding a special election for mayor makes sense with the provisions for filling school board and Assembly vacancies in Anchorage code, both of which are granted special elections under stricter terms.  A school board vacancy simply does not warrant a special election, and the school board appoints a person “until the next regular election.”  An Assembly vacancy warrants a special election only if “the vacancy occurs more than six months before the next regular election,” and the candidates get 60 days to campaign.  In contrast, a mayoral vacancy gets a special election anytime the vacancy occurs 90 days before a regular election, and the candidates get 90 days to campaign.  This appeals to common sense, as the position of mayor is by far the most powerful and crucial elected position in the municipality.

Nor are special elections unprecedented.  I spoke with a former Anchorage Assembly member about past practices for special elections, and the policy during his tenure seemed pretty uniform:  give the candidates the allotted time to campaign, and hold the election soon thereafter.

Avoiding an infamous end is still possible, provided that the Assembly reconsiders and decides to honor their obligations to the law and their constituents.

So, can the Assembly ignore the law?

Any lawsuit that is filed against the Assembly will undoubtedly probe the custom and practice of “shall be filled.”  The Alaska Supreme Court has interpreted “shall” to mean “mandatory” in multiple cases.  And it is relevant to note that, less than two years ago, it was Alaska Chief Justice Joel Bolger lecturing Governor Dunleavy on the mandatory nature of “shall fill” in his remonstration before the Judicial Council:

Article IV, section 5 of the constitution provides that “The governor shall fill any vacancy in an office of … superior court judge by appointing one of two or more persons nominated by the judicial council.” … [I]t is clear that the founders intended this provision to mean exactly what it says: The governor must appoint one of the candidates nominated by the council.

The Assembly may well know this already; it employs plenty of smart lawyers.  But to borrow an idiom from law school, the Anchorage Assembly’s legislative powers are limited only by its imagination.  And this particular Assembly has demonstrated that it will do whatever it wants until it is stopped by a superior branch of government or its outraged constituents.

That pursuit will end in tragedy.  The history of the West features many elected assemblies wielding unpopular and illicit authority over a cowed electorate.   The Thirty Tyrants of Athens, the French National Constituent Assembly, and the Long Parliament in England are but a few examples.  Each of these bodies ended in self-destruction; the Tyrants were defeated by those whom they exiled, the National Assembly eventually led to Napoleon, and the Long Parliament in England was dissolved at the point of the sword by Cromwell’s New Model Army.

America’s Founding Fathers foresaw inherent danger in a legislative body unfettered from restraint.  Madison, quoting his political opponent Thomas Jefferson in The Federalist Papers, wrote that “one hundred and seventy-three despots would surely be as oppressive as one. … As little will it avail us that they are chosen by ourselves.  An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others.”

Avoiding an infamous end is still possible, provided that the Assembly reconsiders and decides to honor their obligations to the law and their constituents.

Mario Bird practices law in Anchorage. He was born and raised on the Kenai before attended law school at Ave Maria School of Law in Florida.

The views expressed here do not necessarily express those of the Alaska Watchman.

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