Legislature(2011 - 2012)CAPITOL 120

04/09/2011 12:30 PM House JUDICIARY


Download Mp3. <- Right click and save file as

* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
-- Rescheduled from 4/8/11 --
+= HJR 4 CONST. AM: TRANSPORTATION FUND TELECONFERENCED
Moved CSHJR 4(TRA) Out of Committee
+ SB 31 COUNTING OF WRITE-IN VOTES TELECONFERENCED
Moved HCS CSSB 31(STA) Out of Committee
+= HB 215 JUDICIAL REVIEW OF PIPELINE PROJECT/ROW TELECONFERENCED
Moved CSHB 215(JUD) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
               SB 31 - COUNTING OF WRITE-IN VOTES                                                                           
                                                                                                                                
1:49:33 PM                                                                                                                    
                                                                                                                                
CHAIR GATTO  announced that the  final order of business  would be                                                              
CS FOR SENATE BILL  NO. 31(JUD), "An Act relating  to the counting                                                              
of   write-in   votes."      [Before   the   committee   was   HCS                                                              
CSSB 31(STA).]                                                                                                                  
                                                                                                                                
1:49:58 PM                                                                                                                    
                                                                                                                                
SENATOR  JOE  THOMAS, Alaska  State  Legislature,  as  one of  the                                                              
joint  prime  sponsors,   explained  that  SB  31   would  clarify                                                              
Alaska's  statutes  by  utilizing   language  recommended  by  the                                                              
Alaska Supreme Court  in its recent Miller v.  Treadwell decision;                                                            
this language has  been "reinforced" by the Alaska  Superior Court                                                              
and the  U.S. District  Court, and  in the  2010 General  Election                                                              
Review conducted  by the  Office of the  Lieutenant Governor.   He                                                              
offered  his  understanding  that  the  bill's  proposed  language                                                              
comes from  the federal Uniformed  and Overseas Citizens  Absentee                                                              
Voting Act  (UOCAVA), and that it  specifies that the  director of                                                              
the Division of  Elections shall use a determination  of a voter's                                                              
intent  as  the guiding  principle  when  counting and  judging  a                                                              
write-in ballot  and its  validity.   Senate Bill 31  incorporates                                                              
into  statute  the   concept  of  favoring  voter   intent,  which                                                              
Alaska's courts  have done  consistently for  over 50 years.   The                                                              
goal of  clarifying Alaska's  statutes on  this issue  is twofold:                                                              
one,  to ensure  that in  future  elections, as  many Alaskans  as                                                              
possible are enfranchised;  and two, to strengthen  the perception                                                              
of Alaska's  democratic process.   Achieving this goal,  and using                                                              
inclusive rather  than exclusive statutory language,  will protect                                                              
the  fundamental   democratic  rights   of  all  voting   Alaskans                                                              
regardless of their backgrounds, abilities, or skills.                                                                          
                                                                                                                                
1:51:45 PM                                                                                                                    
                                                                                                                                
SENATOR  THOMAS indicated  that in  Miller, the  court focused  on                                                            
the language of existing AS 15.15.360(a)(11), which says:                                                                       
                                                                                                                                
          (11) A vote for a write-in candidate, other than                                                                      
     a write-in  vote for  governor and lieutenant  governor,                                                                   
     shall  be counted  if the  oval  is filled  in for  that                                                                   
     candidate and if the name, as it appears on the write-                                                                     
      in declaration of candidacy, of the candidate or the                                                                      
       last name of the candidate is written in the space                                                                       
     provided.                                                                                                                  
                                                                                                                                
SENATOR THOMAS,  mentioning  that the challenge  which was  raised                                                              
pertained  to whether  that  language  meant that  the  name of  a                                                              
write-in candidate  must be written  exactly as it appears  on the                                                              
candidate's declaration  of candidacy,  pointed out that  the only                                                              
declaration of candidacy  he has ever seen has been  his own.  [To                                                              
address what  the court considered  to be an ambiguity  in statute                                                              
with regard to  minor misspellings of write-in  candidates' names,                                                              
and] in  keeping with  the court's  determination in Miller,  [the                                                            
bill  -  via  Section  1's  proposed   new  AS  15.15.360(d)(5)  -                                                              
stipulates  that in counting  votes for  a write-in candidate,  if                                                              
the intention  of the  voter can be  ascertained, the  director of                                                              
the  Division  of  Elections  shall  disregard  any  abbreviation,                                                              
misspelling, or other  minor variation in the form  of the name of                                                              
a  candidate].   He  offered  his  understanding  that it  is  the                                                              
intent  of  the  Division  of  Elections   to  also  address  [the                                                              
purported  ambiguity]  by providing  [to  voters]  a list  of  the                                                              
names   of  write-in   candidates;   this,   he  ventured,   would                                                              
substantially  reduce  the  number of  potential  misspellings  to                                                              
begin with, though it won't eliminate them altogether.                                                                          
                                                                                                                                
SENATOR THOMAS,  in conclusion,  posited that although  [the bill]                                                              
won't   prevent  future   legal   challenges  regarding   write-in                                                              
candidates  from  being  raised,  it  does  clarify  the  law  and                                                              
constitutes a move  forward in the direction the  courts have been                                                              
taking for over the last 50 years.                                                                                              
                                                                                                                                
REPRESENTATIVE  LYNN asked whether  just providing  the name  of a                                                              
write-in  candidate  but not  also  filling  in  the oval  on  the                                                              
ballot would be sufficient to determine voter intent.                                                                           
                                                                                                                                
SENATOR  THOMAS indicated  that  the Division  of Elections  could                                                              
better address that question.                                                                                                   
                                                                                                                                
1:55:41 PM                                                                                                                    
                                                                                                                                
GRIER   HOPKINS,  Staff,   Senator   Joe   Thomas,  Alaska   State                                                              
Legislature,  on behalf of  Senator Thomas, one  of SB  31's joint                                                              
prime sponsors, explained  that Section 1 - which would  add a new                                                              
subsection  (d)(1)-(5) to  AS 15.15.360 -  addresses the  counting                                                              
of  write-in   votes  and   [subsequent]  determinations   by  the                                                              
division   director  regarding   voter   intent.     Specifically,                                                              
proposed new  subsection (d)'s  paragraphs (1)-(4) contain  [along                                                              
with  some  clarifying   editorial  changes]  the   provisions  of                                                              
existing   AS   15.15.360(a)(9)-(12),   which   address   write-in                                                              
candidates/votes  and   which  would  be  repealed   via  SB  31's                                                              
Section 3,   thereby   leaving   the   remaining   provisions   of                                                              
AS 15.15.360(a)  - those  being  paragraphs (1)-(8)  - to  address                                                              
the marking/counting  of  standard ballots.   Section  2 of  SB 31                                                              
provides   for  a   proposed  new   AS   15.15.365,  which   would                                                              
statutorily  address the  issue of  counting write-in  votes  in a                                                              
general  election; the  language in  proposed AS  15.15.365(a)-(e)                                                              
mirrors the regulatory language in 6 AAC 25.085.                                                                                
                                                                                                                                
MR. HOPKINS  explained that Section  2's proposed  AS 15.15.365(a)                                                              
addresses the  trigger for counting  write-in ballots,  adding his                                                              
understanding  that  the  Division   of  Elections  doesn't  count                                                              
write-in ballots  unless there is  a legitimate [likelihood]  that                                                              
those ballots  could change the  outcome of the election.   [Under                                                              
both  existing  and  proposed  AS 15.15.360,]  the  oval  must  be                                                              
filled  in  [as  specified in  AS  15.15.360(a)(1)  regardless  of                                                              
whether  a  person  is  voting  for  a  write-in  candidate  or  a                                                              
candidate whose  name is already  on the ballot; this  is] because                                                              
it's the  filled in oval which  registers with the  voting machine                                                              
as a  cast vote.   He  then offered his  understanding  that under                                                              
proposed AS 15.15.365(a)(1)-(2),  in order for any  write-in votes                                                              
to  be counted,  there  must  be more  total  votes  cast for  all                                                              
write-in  candidates   than  for  any  other  candidate,   or  the                                                              
difference between  the total write-in  votes cast and  the number                                                              
of  votes  cast  for  the leading  candidate  must  be  less  than                                                              
.5 percent.    He  mentioned  that the  remainder  of  Section  2,                                                              
proposed  AS 15.15.365(b)-(e),  addresses the  time and place  for                                                              
counting write-in ballots.                                                                                                      
                                                                                                                                
REPRESENTATIVE  GRUENBERG [although HCS  CSSB 31(STA)  was already                                                              
properly before  the committee]  moved to  adopt HCS CSSB  31(STA)                                                              
as the working document.                                                                                                        
                                                                                                                                
REPRESENTATIVE  HOLMES objected  for  the  purpose of  discussion.                                                              
[Although the objection  was never removed, the  committee treated                                                              
HCS  CSSB   31(STA)  as  having   been  adopted  as   the  working                                                              
document.]                                                                                                                      
                                                                                                                                
2:01:16 PM                                                                                                                    
                                                                                                                                
MR. HOPKINS,  in response to a  question, indicated that  due to a                                                              
change made  in the bill's  prior committee of referral,  proposed                                                              
AS  15.15.365(c) and  (e)  together now  stipulate,  respectively,                                                              
that if  the requirements  of subsection  (a)  have been met,  the                                                              
director of  the Division  of Elections  shall establish  the date                                                              
for counting  the write-in  votes, and the  director -  or his/her                                                              
designee  - shall  count  all write-in  ballots  [under the  rules                                                              
outlined  in proposed AS  15.15.360(d)];  and that those  write-in                                                              
ballots shall be  counted - by the director or  his/her designee -                                                              
in  a public  place at  the location  where  write-in ballots  are                                                              
sent to  be counted after  an election.   This change  is intended                                                              
to provide  for a  more secure  ballot-transfer process;  proposed                                                              
AS 15.15.365(e) would  eliminate the need for those  ballots to be                                                              
transferred again,  thereby mitigating  the risk of  damage, loss,                                                              
or tampering.   Currently, after  all the voting  precincts across                                                              
the state tally  their results, all of the ballots  are sealed and                                                              
shipped to the director's office in Juneau.                                                                                     
                                                                                                                                
REPRESENTATIVE   GRUENBERG   offered    his   understanding   that                                                              
Section 2's  proposed AS  15.15.365 could  apply to any  "write-in                                                              
election."                                                                                                                      
                                                                                                                                
MR. HOPKINS concurred.                                                                                                          
                                                                                                                                
REPRESENTATIVE   GRUENBERG  questioned   whether,  in   situations                                                              
involving   a   local   election,   the   language   of   proposed                                                              
AS 15.15.365(e)  would provide the  division with the  flexibility                                                              
to  ship the  write-in ballots  back  to that  local precinct  for                                                              
counting.                                                                                                                       
                                                                                                                                
MR. HOPKINS  indicated that such  could occur after  the timeframe                                                              
currently  provided   for  absentee  ballots  to   arrive  at  the                                                              
director's  office  in Juneau.    In response  to  a question,  he                                                              
offered  his   understanding  that  ballots  arriving   after  the                                                              
deadline  are  only  counted  if  a recount  is  authorized.    In                                                              
response  to further  questions  and comments,  he concurred  that                                                              
[under both  existing and proposed  AS 15.15.360,] writing  in the                                                              
name of a  candidate whose name  is already printed on  the ballot                                                              
would not  invalidate that write-in  vote unless it  is determined                                                              
that the  ballot was so marked  for the purpose of  identifying it                                                              
later on;  and reiterated that  [under both existing  and proposed                                                              
AS  15.15.360,]  the  oval  must  be filled  in  as  specified  in                                                              
AS 15.15.360(a)(1) [regardless  of whether a person  is voting for                                                              
a write-in candidate  or a candidate whose name is  already on the                                                              
ballot, because it's  the filled in oval which  registers with the                                                              
voting  machine as  a cast  vote,]  and that  before any  write-in                                                              
votes   are   counted,   the   criteria   outlined   in   proposed                                                              
AS 15.15.365(a)(1)-(2)  must be  met.   He added  that in  Miller,                                                            
the court upheld the statute requiring the oval to be filled in.                                                                
                                                                                                                                
2:14:36 PM                                                                                                                    
                                                                                                                                
MR.  HOPKINS mentioned  that page  21 of  the aforementioned  2010                                                              
General Election  Review contains a  specific reference to  SB 31,                                                              
and that  when crafting  the latest version  of the  bill, Senator                                                              
Thomas  worked  closely  with  the  Division  of  Elections.    In                                                              
response to a question,  he concurred that SB 31  would codify the                                                              
court's  ruling in  Miller regarding  voter  intent; relayed  that                                                            
all the  courts which got  involved in  that case are  urging that                                                              
the existing statutes  pertaining to write-in votes  be clarified;                                                              
and mentioned that  members' packets include a  handout containing                                                              
quotes  from those  various courts.    In response  to a  question                                                              
regarding how  voter intent would  be ascertained by  the director                                                              
under proposed  AS 15.15.360(d)(5),  he offered his  understanding                                                              
of the process used by the Division of Elections when the write-                                                                
in votes  for Alaska's  2010 U.S.  Senate race  were counted,  and                                                              
indicated  that ultimately,  if a race's  write-in ballot  results                                                              
are challenged,  it would  be the court  that would  determine the                                                              
correctness of the director's decisions regarding voter intent.                                                                 
                                                                                                                                
2:23:26 PM                                                                                                                    
                                                                                                                                
GAIL FENUMIAI,  Director, Central  Office, Division  of Elections,                                                              
Office  of  the  Lieutenant  Governor,   in  response  to  further                                                              
questions,  provided more  details regarding  the process  used by                                                              
the division  when it  counted the  write-in ballots for  Alaska's                                                              
2010 U.S. Senate race.                                                                                                          
                                                                                                                                
MR. HOPKINS  reiterated that in  Miller, the challenge  raised was                                                            
whether  the  language  of [existing  AS  15.15.360(a)(11)]  means                                                              
that the  name of a write-in  candidate has to be  written exactly                                                              
as it  appears on  the candidate's  declaration of candidacy;  the                                                              
court ruled  that it  did not, surmising  that if the  legislature                                                              
had  intended  differently,  it  would not  have  used  the  word,                                                              
"appears"  in  [existing  paragraph  (11)].   Senate  Bill  31  is                                                              
intended  to   rectify  this   purported  ambiguity   in  existing                                                              
statute, but won't  preclude someone from challenging  the results                                                              
of a write-in election.   He mentioned that no  state requires the                                                              
exact spelling of  a write-in candidate's name,  and ventured that                                                              
to do  so, even in  part, would raise  a number of  implementation                                                              
issues.                                                                                                                         
                                                                                                                                
MS. FENUMIAI,  in response  to comments  and questions,  said that                                                              
the law is  very clear that the  oval must be filled  in, and that                                                              
the court  has agreed with  the division's interpretation  of that                                                              
law.                                                                                                                            
                                                                                                                                
MR. HOPKINS mentioned that AS 15.15.360(a)(1) says:                                                                             
                                                                                                                                
     (1)  A voter  may  mark a  ballot  only  by filling  in,                                                                   
     making  "X"  marks, diagonal,  horizontal,  or  vertical                                                                   
     marks, solid  marks, stars, circles, asterisks,  checks,                                                                   
     or  plus  signs that  are  clearly  spaced in  the  oval                                                                   
     opposite  the name  of  the candidate,  proposition,  or                                                                   
     question that the voter desires to designate.                                                                              
                                                                                                                                
2:35:16 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE THOMPSON  moved to report  HCS CSSB 31(STA)  out of                                                              
committee  with individual  recommendations  and the  accompanying                                                              
fiscal  notes.  There  being no  objection, HCS  CSSB 31(STA)  was                                                              
reported from the House Judiciary Standing Committee.                                                                           

Document Name Date/Time Subjects