Legislature(2001 - 2002)
04/03/2001 08:05 AM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 193 - MODIFIED BLANKET PRIMARY ELECTION Number 1527 CHAIR COGHILL announced that the next order of business would be HOUSE BILL NO. 193, "An Act relating to the primary election; and providing for an effective date." He declared a brief at- ease to allow people to shake hands with Governor Hammond. The meeting resumed three minutes later. Number 1574 LIEUTENANT GOVERNOR FRAN ULMER came forward to testify on HB 193. She began by explaining why legislation is required. Alaska, like Washington and California, had a "blanket primary" system, one in which all of the candidates for all of the parties appear on a single ballot and a voter can pick and choose among them. Last summer, the United States Supreme Court in a California case ruled that any state with a blanket primary must modify it if any of the political parties objected to non- party members voting on their candidates. The Republican Party of Alaska requested that only Republicans and undeclared nonpartisans be allowed to vote on their candidates, so the lieutenant governor last summer promulgated emergency regulations to govern the 2000 primary election. Those emergency regulations went out of existence as soon as the primary election was over, creating a need for legislative action to decide how Alaska's primary system is to operate. In order to make a recommendation to the legislature, she created a task force made up of four former lieutenant governors, two former attorneys general, and a representative of the League of Women Voters. That group arrived at a unanimous consensus position, on which HB 193 is based. Avrum Gross, former attorney general under Governor Hammond, served as chair of the task force. Number 1791 AVRUM GROSS, Chair, Primary Election Task Force, came forward to testify. He observed that the committee members brought together about 400 years of political experience. The task force was strictly nonpartisan. It proceeded under the assumption that it had to come up with something because Alaska no longer has a law governing primary elections and something has to be put in place. The task force first heard presentations from the state, then held public hearings in which all major and minor parties in Alaska participated. The task force then drafted a law with which all its members agreed. MR. GROSS said the basic principal used in drafting was to change the law as little as possible from what had existed prior to the Jones case. None of the parties objected to a blanket primary so long as they could limit their primary if they saw fit. The task force decided that when a party [for example, the Republican Party] wished to limit participation in its primary, all registered Republicans would receive a ballot with all the candidates on it. Everyone else would get a ballot with everybody on it except Republicans, so the Republican Party would be able to limit participation in its primary to registered Republicans MR. GROSS said the task force also concluded that party members could still vote for candidates in other parties so long as those parties allowed it. In doing so, the task force retained the concept of a blanket primary unless that primary was narrowed by party choices. That is consistent with the Jones case and with Alaska's past practice. Number 2067 MR. GROSS explained that the committee substitute approaches from a different direction. The CS starts off with all closed primaries. The only people who will get a party's primary ballot will be registered members of that party. But any party can, through its own party rules, open its primary to more people. The task force took the other approach because it thought the majority of Alaskans would favor a blanket primary system insofar as possible. Number 2186 MR. GROSS said the task force took testimony and set a deadline by which the parties must be decide who is going to participate in their primaries. September of the preceding year was unanimously accepted. The task force also decided the deadline for registration in a party would be 30 days before the election [the last day on which people can register to vote]. Number 2301 REPRESENTATIVE JAMES asked Mr. Gross why he had identified the task force as nonpartisan. MR. GROSS said he wanted the committee to understand that the proposal [HB 193] had not come from any particular party viewpoint. REPRESENTATIVE JAMES interpreted that to mean the task force had come at the task from an administrative position, not from a party position. MR. GROSS affirmed that was correct. REPRESENTATIVE JAMES said the outcome reflected that perspective as opposed to what it might have been if determined by political parties. She asked if a person who is not a party member could file for office. MR. GROSS said such a person could do so by petition. REPRESENTATIVE JAMES surmised that if more than one candidate did so, they would not compete in the primary. It appears to her that primaries are specifically for parties to choose their candidates, and if there were not parties choosing their candidates, there would be no need for a primary. MR. GROSS thought that was probably true. REPRESENTATIVE JAMES noted that people who are not party members rarely run for public office and that half of Alaska's voters are not party members. She thinks the state is missing a large group of folks who might be good office holders and have a good, balanced approach. "As long as we continue to make the party worth nothing, we are going to have more and more people who never run for election," she said. Number 2495 MR. GROSS said the task force had discussed Representative James' concern and came to the conclusion that, "This in the end will probably weaken parties more than anything we can think of. The reason it will weaken parties is because [almost] every party that testified ... indicated that it would probably allow independents to participate in its primaries but would not allow registered members of other parties to participate." He said the result is that the only people who are going to be able to vote for all the candidates are going to be independents. Polls show that the vast majority of Alaska voters consider themselves to be independents, he said. The parties have the option of closing their primaries to all but registered members. The problem with that is, "The more you close your party's primary, the purer your candidates become and the less likely they are to win general elections . . . . The reason that most parties welcome independents into their parties is because they realize that at some point or another they're going to have to get the independents to vote for them to win a general election," he said. Mr. Gross pointed out that this could result in many people leaving parties. So long as parties are going to allow independents to participate in their process and not allow people from other parties, then the only way a citizen can vote for everybody is to be an independent. Number 2627 CHAIR COGHILL said one of the reasons he brought forward the CS was to give the parties a choice rather than making the choice for them. MR. GROSS clarified that HB 193 allows parties to eliminate independents from voting in their primaries. "You're coming at it by saying you start with parties and they have to add independents. We've started by saying there's everybody and you have to eliminate independents." CHAIR COGHILL said, "I think that's a public perception of exclusion rather than inclusion, ... and that's why I came to that policy call." Number 2652 REPRESENTATIVE STEVENS observed that if there were a proliferation of parties, the state could end up with a lot of ballots. He asked if that was going to be a problem. Number 2586 MR. GROSS said there are now six political parties and there could be a maximum of six ballots, one for each party. "By insisting on a blanket primary insofar as possible, what we were saying was that the party can decide who can vote for its candidates but it can't decide who its members may vote for," he said. Number 2755 CHAIR COGHILL observed that there is a cost involved in having parties exclude people from their ballots. MR. GROSS agreed. REPRESENTATIVE STEVENS expressed concern that there are six parties now, but no restriction on the number that could come into being. MR. GROSS said there is a limit; a party needs to have a three percent vote in the prior gubernatorial election. CHAIR COGHILL thought the cost would be around $50,000 for a party to exclude others under the task force plan. Number 2805 REPRESENTATIVE STEVENS saw the proliferation of parties as a real danger in the future. MR. GROSS said one has to start with the premise that parties constitutionally have the right to do this. "There's nothing we can do about that. The Supreme Court has ruled. So if each party has rules about who may nominate its candidates, some way you're going to have to accommodate that." CHAIR COGHILL said the task force tried to keep the primary as open as possible, and he thinks the policy call that has to be made "is whether we're doing it for exclusion for inclusion." Number 2872 REPRESENTATIVE CRAWFORD asked if a nonpartisan primary had been considered. MR. GROSS said it was considered and had a lot of appeal at first. Everyone who wanted to run would file and the two top vote-getters would face one another in a runoff, regardless of party. Louisiana is the only state that does it that way. The problem with it is that the two best candidates do not emerge from the field, but when there are 12 or 14 people running for an office, "a dedicated group of followers is all you really need to make it into the finals," he said. "You don't necessarily get candidates who represent the majority. You tend to get very well organized, extreme groups." The task force rejected the idea of a nonpartisan primary because it does not produce two candidates who represent major, differing points of view. TAPE 01-31, SIDE B Number 2948 LIEUTENANT GOVERNOR ULMER spoke to the number of ballots. Under the CS, there potentially would be six ballots, one for each of the six recognized parties. Under the original bill, there potentially would be seven ballots. The seventh ballot would include all of the candidates from all of the parties and only nonpartisan voters would get it [just like the old blanket primary ballot], assuming that all the party rules allowed nonpartisans to vote for their candidates. Looking at the fiscal difference between the CS and the original version, it's really just one more ballot. In terms of the public policy call, "it is really just a question ... of your philosophy about primaries," she said. The primary traditionally has been viewed as the parties' opportunity to decide who their nominees would be. It used to be done by convention until most states chose to open up the convention process to a more democratic system. She said that in states like Alaska, where over 50 percent of the voters register as undeclared or nonpartisan: It seems like disenfranchising over 50 percent of the voters ... in the primary process may not be the most democratic system. That's the tradeoff here. How much do you allow just the party to determine its own nominees and how much do you allow independents nonpartisans, undeclareds to also participate in that party process? And as long as the party says we want them in, it seems to me we ought to allow that. Whether you set it up as an opt-in or opt-out as long as the party rules control, it's a shade of gray, I guess. The shade of gray that the task force chose was the shade of gray of saying assume everybody's in, reflecting a longstanding tradition in Alaska of the blanket primary. What the task force tried to so was stay as close to existing law only change it enough to accommodate the Jones decision as opposed to changing it more dramatically. Number 2790 LIEUTENANT GOVERNOR ULMER added that the task force had settled on the September deadline for notifying the state of party rules because the parties said they would know by May or June at the latest what those rules were going to be, and September gives the Division of Elections sufficient time to make the necessary changes on ballots and programming. Number 2722 REPRESENTATIVE WILSON asked if under the original bill, the Republicans were the only ones who close their primary, how many ballots there would be. LIEUTENANT GOVERNOR ULMER said two. Republicans, independents, and nonpartisans would get one ballot [with everyone on it] and everybody else would get the blanket ballot [listing all candidates except Republicans]. The task force thought it was better to err on the side of allowing individuals the right to vote to the fullest extent possible. Number 2600 REPRESENTATIVE HAYES wondered why the state pays for a primary if it is a function of the parties. He thinks if a party wants to exclude a large number of voters from its process, that party should pay for its primary election. LIEUTENANT GOVERNOR ULMER explained that the state has an interest in fair and open elections at both the primary and general stage. In general, states moved from a convention system, which was totally controlled by parties, to a primary system because of the notion that opening up the nomination process opens up the democratic election process. She said Sarah Felix, Assistant Attorney General, could describe cases in other states that have raised related questions. Number 2487 CHAIR COGHILL passed the gavel to Representative Fate. Number 2446 SARAH FELIX, Assistant Attorney General, Governmental Affairs Section, Civil Division (Juneau), Department of Law, came forward to testify. She explained that Alaska would not be on very firm ground if it were to require the political parties to pay for the primary elections. There have been two United States Supreme Court opinions and one federal appeals court decision out of the Eighth Circuit that have addressed these issues. The Supreme Court opinions are not directly on point but suggest how the Supreme Court would address this issue. MS. FELIX said in one case, Texas had tried to impose large filing fees on candidates. The court struck that down, saying it unduly burdened candidates' rights of freedom of association. That ruling was similar to the one in the California v. Jones case, which said if a state makes it very difficult for a political party to participate in a primary, that state is burdening their First Amendment associational rights. Ms. Felix thinks making a party pay for a primary election would impose that kind of burden. MS. FELIX said the Eight Circuit Court case, Faulkner v. Arkansas, the state had established a system that required a primary and required the political parties to pay for it. The Eighth Circuit Court struck that down. One of the parties in that case had been unable to afford a primary election, so there wasn't a primary for that party and it essentially dropped out of the general election. "Given how the U.S. Supreme Court has been viewing the primary system and given how they have been affording political parties very broad rights," if Alaska were to impose that kind of a system, Ms. Felix doubted that it would stand. Number 2497 REPRESENTATIVE HAYES said he understood the state's interest in a general election, but not in the primary election if is the method by which parties nominate their candidates. He thought a party should be able to make its own rules and use a caucus or any other method to determine its candidates. The state should not have any involvement in that, but would come back into the process for the general election where it does have a pressing interest. Number 2487 ACTING CHAIR FATE returned the gavel to Chair Coghill. MS. FELIX said Representative Hayes is correct that the state need not have a primary election. The task force considered that option, but chose to hold a primary because they thought doing so was more inclusive. The option is a policy question open to the House State Affairs Standing Committee. CHAIR COGHILL noted that HB 193 is to be considered by the House Judiciary Standing Committee. He then brought forward the CS for HB 193. Number 2269 REPRESENTATIVE JAMES moved to adopt the proposed CS for HB 193 [Version C dated 3/28/01] as the working document before the committee. REPRESENTATIVE HAYES objected, saying that if Alaska is going to have a primary system, he wants to make it as open as possible. He understands the CS to say that voters would have to declare their party affiliation 30 days before the primary. CHAIR COGHILL said that would be true in either version. He thought the CS was closer to what Representative Hayes preferred. It says the primaries are presumed closed until they are opened by the parties. By contrast, the original task force version is that the primaries are open unless somebody excluded them. REPRESENTATIVE HAYES said what the CS is saying that in the Republican closed primary, there would be Republican candidates and everybody else. CHAIR COGHILL said it would be up to the party to include people beyond Republicans if they so chose, and the CS gives them the option to do that. REPRESENTATIVE HAYES said he is more comfortable with the original HB 193 because he thinks it more closely matches what he heard from the public. CHAIR COGHILL said that was a point well taken; that there is no doubt that this is a policy call. Number 2099 REPRESENTATIVE WILSON recalled that in both the original HB 193 and the CS, voters had to register 30 days in advance of an election. She asked the lieutenant governor if in the last election [in which voters were allowed to change their registration up to and including election day], many people switched. LIEUTENANT GOVERNOR ULMER said a few had switched, but that there had not been a huge shift. Number 2027 A roll call vote on the motion to adopt Version C as the working document was taken. Representatives Fate, James, Stevens, Wilson, and Coghill voted for CSHB 193. Representatives Crawford and Hayes voted against CSHB 193. Therefore, CSHB 193 was before the committee by a vote of 5 to 2. Number 1933 REPRESENTATIVE WILSON moved conceptual Amendment 1 to change CSHB 193 in accordance with the lieutenant governor's and the task force's recommendation: Page 2, line 5, Delete "November 1" Insert "September 1". There being no objection, it was so ordered and Amendment 1 was adopted. Number 1888 REPRESENTATIVE JAMES stated for the record that she strongly believes in the two-party system. Her personal preference would be for only party people to vote for party candidates. If that were the case, she thinks a lot of unaffiliated voters would join the parties, and that would please her a lot. She said she supports the CS "mostly because it makes parties, makes positions, and the other way doesn't necessarily." Number 1613 REPRESENTATIVE CRAWFORD said: I believe the direction we're heading is to close the primary, to make people become more partisan. I believe that it's going to take the political center away. I believe that we're going to have more candidates from the radical right or the radical left and I believe that it's the wrong direction to take Alaska politics because I believe that the center is much more inclusive. Number 1568 REPRESENTATIVE STEVENS sought clarification of the number of ballots that would be possible under the CS and wanted to know if it changes the requirement that voters register 30 days before the election. CHAIR COGHILL said the CS still includes the requirement to register 30 days in advance and, as the lieutenant governor said, the CS probably has one less ballot than what would be required under the original HB 193. He did not like the air of exclusion of the original. Number 1464 LIEUTENANT GOVERNOR ULMER corrected a previous statement she had made. There could be either six or seven ballots under either HB 193 or CSHB 193, depending on party rules. Both give power to the parties to determine their candidates. One says the primary is open unless it is closed, and the other says the primary is closed unless it is opened. Number 1387 REPRESENTATIVE HAYES expressed appreciation for the comments of Representative James. His biggest fundamental problem is that if the parties want that much control over the nominating process, then why should the state be involved? Why should the state foot the bill to allow a party to nominate who it wants? He thinks the state's interest is in the general election. CHAIR COGHILL said he agreed and that that was a separate policy question. He invited Representative Hayes to bring forward a bill to that effect and promised to give it a hearing. Number 1316 REPRESENTATIVE JAMES agreed with Representative Hayes. She said the party caucus is no longer used by either party. "The caucus is the basic premise, the grass roots of party activism," she said. "That's when within your precinct you get the people to come together and discuss the issues, you discuss the platform, ... you get that grass roots effort" [which shapes the party], she said. She indicated willingness to co-sponsor with Representative Hayes a bill calling for party caucuses. Number 1193 REPRESENTATIVE CRAWFORD said he thinks the CS is more about appearances, that it is trying to guard against the appearance of being a closed party as opposed to an open party. REPRESENTATIVE WILSON observed that things may have evolved the way they have in Alaska because the state is so vast. Number 1103 REPRESENTATIVE JAMES moved to report CSHB 193, as amended, out of the House State Affairs Standing Committee with individual recommendations and the accompanying fiscal note. REPRESENTATIVE CRAWFORD objected because he thinks the CS eliminates many people from the process and he opposes the CS because it is exclusionary rather than inclusionary. A roll call vote was taken. Representatives Fate, James, Stevens, Wilson, and Coghill voted for CSHB 193 as amended. Representatives Crawford and Hayes voted against CSHB 193 as amended. Therefore, CSHB 193(STA) was reported from the House State Affairs Standing Committee.