Legislature(1993 - 1994)
02/07/1994 01:15 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
CSHB 47(STA) - "An Act relating to primary elections and to the delivery of the primary ballots to persons making application for them when, by operation of political party rule, two or more primary ballots must be provided to the public." Number 024 TOM ANDERSON, Legislative Aide to Rep. Terry Martin, Prime Sponsor of HB 47, testified that HB 47 was introduced in response to the 1992 election, in which Rep. Martin's constituency found a problem with the absentee voter procedure. He stated this was a result of the way the law read due to Zawacki v. State in which the chairman of the Republican Party, Connie Zawacki, through the central committee decision of the Republican Party, tried to close the primary only to Republican affiliated voters for the Republican ticket. Mr. Anderson explained the result of the court case was that the state had a hybrid closed primary in which those registered as Republican, non-affiliated, or independent, could vote the Republican ballot, and others registered as any other affiliation could not. MR. ANDERSON went on to explain that as far as the statutory ballot was concerned, which was considered the primary ballot, any affiliation could vote for that ballot. However, on that ballot only those registered as Alaska Independent Party, Democratic Party and Green Party candidates were listed. He said the result was that if an individual was not a Republican or non-declared, he or she could not vote the Republican ballot. Mr. ANDERSON said the problem arose when absentee voters applied for their absentee voter application, and when they sent back their application to the Division of Elections and failed to mark which ballot they wanted, they would automatically, by emergency regulation, be sent the statutory ballot. Mr. Anderson explained that this, in essence, disenfranchised Republican, non-affiliated and independent voters that wanted to vote for Republican candidates. Number 097 MR. ANDERSON said CSHB 47 addresses this by stating that if an individual fails to mark down what ballot they want, the division would send all ballots, and in this case the Republican and statutory ballot, and then they would be required to mark one and send both back to the Division of Elections. Number 133 REP. PHILLIPS asked Mr. Anderson why the individual would have to send back both ballots. Number 138 MR. ANDERSON replied he presumed accountability was a factor, and there was a potential for fraud. Number 147 REP. GREEN asked if further confusion would be created by sending both ballots? Number 160 MR. ANDERSON responded that Rep. Martin believes that the need to have this legislation outweighs the potential confusion, and further, the confusion that occurred in the 1992 primary should be alleviated somewhat by plans by the Division of Elections to do a better job of explaining the changes in the next election. Number 193 JOE SWANSON, Director, Division of Elections (Elections), Office of the Lieutenant Governor, testified against HB 47, citing the following reasons for the division's opposition: * it would be extremely difficult to maintain the integrity of the elections process with multiple ballots being sent to a voter; * the difficulty and cost of programming the ballot tabulation system to accommodate the rotation and cross-ballot counting the bill requires; * the cost, nearly $1 million, to create as many a five ballots from which each voter would select one; * the disillusionment and confusion of the voters when asked to select one of many ballots at the polls; and * the difficulty in training poll workers, especially in remote areas, on how to explain the multiple ballot process to voters in such a way that the voter is not confused and/or votes the wrong ballot. MR. SWANSON described various scenario's whereby individuals could make mistakes due to the confusion of multiple ballots that could jeopardize a close election, or the integrity of the election, which could result in court cases. He said the Elections feels the solution is to send one ballot - the statutory ballot. Number 281 REP. PHILLIPS asked Mr. Swanson what Elections would do in the case, hypothetically, if either four or five parties had closed primaries and Elections was forced to send five ballots if the individual didn't mark which ballot he or she wanted, and there was no statutory ballot. She continued, saying Mr. Swanson's contention that it would cost $1 million to pay for HB 47 would not be a valid argument because, by law, they would have to prepare that number of ballots anyway. MR. SWANSON responded that the $1 million deals with the second part of the legislation, which authorizes the different parties to do closed primaries, and as each party asks for a separate ballot, Elections' cost increment is about $309,000 per additional ballot. Mr. Swanson discussed what would happen if Elections sent out an application for absentee voting with four or five ballots to choose from and the individual did not mark a choice, then they would do everything they could to contact the individual through telephoning, mail, and checking their registration, so that person could have the ballot of their choice. He said, regardless, he would still oppose sending out four of five ballots to anyone because of the accountability problem. Number 345 REP. GREEN asked how other states handle absentee balloting in closed primaries. Number 362 MR. SWANSON replied he didn't know, but Elections is trying to simplify instructions for the next elections. Number 393 REP. GREEN noted that Alaska had closed primaries in the past and then changed to open primaries, and asked how closed primaries were handled in the past. Number 404 MR. SWANSON said he believed it was different in the past, because Alaska had significantly fewer independents and number of candidates. Number 419 CHAIRMAN PORTER asked to see a copy of the form for voter absentee ballot applications, and asked if it would be enhanced and easier for voters to understand. Number 428 MR. SWANSON said he would provide a copy of the form to the committee, and said everything is being changed and simplified. Number 439 CHAIRMAN PORTER asked, if the committee were to pass HB 47, there is a section on page 3, line 7, which if in place, and Elections received back both ballots, on line 7 it says the director shall make the determination of appropriateness of the primary ballots on the basis of voter registration documents, and asked Mr. Swanson how he would interpret that. Number 461 MR. SWANSON said his interpretation of that is the appropriateness would be in the party rules, which would determine which person is eligible for which ballot, therefore they would look at party registration. REP. PHILLIPS said she could see a problem in that if the individual included a voter registration change with the balloting request in order to get a Republican ballot, and Elections looked at past voter affiliation, and if it was Democrat, you would not send the Republic ballot. Number 478 MR. SWANSON indicated the way the process works now, when they get the absentee ballot in the region and it comes back to the region, Election's looks at the cover to see that everything is there, and if there is a change, then the change is made immediately, and although there are no guarantees, he doesn't think it would be a problem. Number 521 Discussion regarding changing party affiliation up to the day of the election and the impact on absentee ballots continued. The question remained unresolved. Number 544 VIRGINIA RAGLE, Assistant Attorney General, General Civil Section, Department of Law, responded to an earlier question about how other states handle closed primaries and said that the fact is, other states don't have anything like this, and with the Republic rule, Alaska now has a hybrid primary, a partially closed primary. She explained that almost all other states have either classic open, where an individual goes to the polling place and chooses which ballot they want, or closed primaries, where if you are registered Republican you get the Republican ballot, and if you are Democrat you get the Democratic ballot, and in most cases if you are an independent you don't get to vote in the primary. Ms. Ragle said the purpose of the primary is to elect the nominees for the party, so if you are independent you are not involved in the primary election. MS. RAGLE addressed the question of the director's duty to send absentee ballots and said under HB 47 the director would have to send all the ballots to the person, regardless of party registration, because they have the opportunity to change their registration the day they vote, unless the bill was amended to designate changing party affiliation no later that 30 days before the election. MS. RAGLE referred to the Lt. Governor's recognition of this problem of having to implement party rules by putting them in statute, because he didn't feel he had the authority to implement emergency regulations without a court order or a statute. She indicated the Lt. Governor's preference to have the rules put in statute in order to make the public more comfortable with the fact that political parties have the right, essentially, to abrogate state law to have rules implemented that are not in accordance with state law in certain circumstances. Number 625 CHAIRMAN PORTER asked what portion of HB 47 would the Lt. Governor find helpful, assuming he does not want to send out multiple ballots. MR. SWANSON replied Sections 3 and 4. MS. RAGLE pointed out that in Section 1 of the bill the Lt. Governor and Division of Elections have gone ahead and adopted permanent regulations to implement this as well. She added that since there is no provision in state statute for the Republican ballot being separate from the statutory ballot, they felt there was no authority under state law to send anybody a Republican ballot unless they asked for it. Ms. Ragle suggested HB 47 could be amended to allow for registered Republicans to get the Republican ballot. Number 654 CHAIRMAN PORTER noted that there probably weren't any other states that had 60 percent of their registered voters as independents, which would fall outside of that ability to designate. Number 663 REP. PHILLIPS referred to language in HB 47 directing the director in the absence of any other indication to send the voter the statutory ballot and asked if this language would leave the state liable. Number 676 MS. RAGLE interpreted it as doing the opposite, and said that by sending the statutory ballot, we are complying as closely as possible to existing state law. She said the Republican party ballot was the aberration here, it's the one not provided for under state law, but they are doing it because they have to under constitutional precedent. Number 686 JACK CHENOWETH, Legislative Legal Counsel, Division of Legal Services, Legislative Affairs Agency, said when this situation first came about, an alternative occurred to him that Elections could look at the best record they have on the applicant's registration, and if party affiliation was clear, say Republican, then that's the ballot they ought to have, and only if Elections could not tell which ballot the applicant would be entitled to, they should then rely on the default of the statutory ballot. Mr. Chenoweth said that is not what the sponsor wants; however, the legislation should not put a great burden on the Division of Elections. He said he did not think it would be a great burden to look up a person's registration, and if the applicant hasn't checked which ballot he or she wants and they are registered Republican, then that's the ballot they ought to get. Mr. Chenoweth said only if the Division of Elections could not tell from the registration should they then fall back on the statutory ballot. Number 725 REP. PHILLIPS suggested that the solution might be to add a statement saying if an individual has not marked which ballot they want, but they have a history of being a Republican, then they should get the Republican ballot, otherwise, they get the statutory ballot. Number 753 MR. CHENOWETH suggested language putting more of the burden on the individual requesting the ballot. MR. SWANSON indicated the division would like to have in statute that to meet the requirements you have to change your registration 30 days ahead of time, not on the day of the election, in order for the division to have their records complete, so they can then check their registration in order to send Republican ballots to registered Republicans. He said they would also, at that stage, prefer to send anyone but Republicans the statutory ballot if they did not mark a preference. Number 785 The committee discussed registration requirements and adding a 30 day registration requirement prior to the primary election. The committee members decided to pursue and debate changing the registration requirement to 30 days. TAPE 94-19, SIDE B Number 075 CHAIRMAN PORTER asked Mr. Chenoweth to include the 30 day provision in the next draft of HB 47. Number 080 MR. CHENOWETH recommended the committee keep in mind that the August primary was fast approaching and asked the committee to either put an immediate effective date or a July 1, 1994, effective date or a January 1, 1995, effective date on the bill in order to avoid problems in the upcoming primary. Number 114 MS. RAGLE also reminded the committee that Alaska is one of the states that has to have any election changes pre-cleared by the Justice Department before we can implement them, and they have 60 days after we submit to them to render a decision, so she recommended an immediate effective date in order to implement this before the next primary. Number 132 CHAIRMAN PORTER said if for some reason the effective date didn't get 27 votes for an immediate effective date, then it would not go into effect for 90 days. He asked if it was possible to construct it so that if the effective date fails it becomes effective January 1, 1995. Number 143 MR. CHENOWETH said any date other than the 90 days constitutionally requires a two-thirds vote, so the only thing they can do is put dates in the substantive provision of the bill. Number 168 CHAIRMAN PORTER said the committee would be getting a committee substitute with the effective date in substantive language, also changing findings and intent to put in the proper reference that it is a regular regulation, not an emergency, the 30 day requirement, and would change the section where the director would provide to a registered voter who has failed to indicate his or her preference of a primary ballot, the primary ballot for the party for which he or she is registered, unless an independent, and in that case it would have to be the statutory ballot. Number 208 REP. VEZEY asked if it would be constitutional to limit changing party affiliation to 30 days prior to the election, and suggested instead language saying the director's decision on the ballot would be based on how the individual was registered within 30 days of the elections. Number 230 MS. RAGLE indicated that requiring a person to register or change party affiliation 30 days prior to an election is not a burden and should pass constitutional muster. Number 260 The committee continued discussing the proposed 30 day rule. Number 428 CHAIRMAN PORTER directed Mr. Chenoweth, in consultation with Ms. Ragle, to draft a committee substitute addressing what the committee discussed, including a reasonable 30 day requirement if they determine it is feasible to do so. Chairman Porter said he would then reschedule the bill for another hearing.