Legislature(2003 - 2004)
04/19/2004 08:07 AM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 414-U.S.SENATE VACANCY/DEF OF POLITICAL PARTY
MR. HEATH HILYARD, staff to Representative Lesil McGuire,
informed members that version W was before the committee. He
explained that the definition of "political party" was
reinserted in version W, which was present in the original
version of the bill.
CHAIR SEEKINS asked Mr. Hilyard if he wanted to add any
information to his last presentation on the bill.
MR. HILYARD said the question of why the language regarding
political parties was included has been discussed, particularly
by the House State Affairs Committee. He stated, "Our main
concern was to address some of the concerns brought up, and the
court order and the litigation from last fall. I believe that
does that, and that's exactly why we included the language
originally."
SENATOR FRENCH noted one CS contained intent language regarding
the legislature's desire to not tamper with this law for the
next two years and asked what happened to that language.
MR. HILYARD said he cannot say why that language was removed
from version W.
SENATOR FRENCH said his concern goes back to the minimum wage
issue a few years ago. The voters adopted a ballot proposition
for a minimum wage increase with inflation proofing. Then, the
legislature passed a law with the same provisions and, before
inflation proofing ever took effect, the legislature voted to
strip out the inflation proofing provision, thereby negating the
will of the people. He again asked what happened to that intent
language that would have expressed the legislature's intent to
not tamper with the statute for the next few years.
SENATOR OGAN commented that the will of the people was expressed
when they approved the Constitution, which allows the
legislature to amend an initiative at any time. He said that
constitutional provision recognizes the fact that initiative
promoters might have certain agendas and that they do not have
the ability to have their wordsmithing scrutinized by
legislative drafters, resulting in unintended consequences.
SENATOR THERRIAULT pointed out the minimum wage initiative had
two sections: raising the minimum wage and inflation proofing.
Although the people approved that initiative, he sides with
Senator Ogan in that the legislature has the constitutional
authority to make adjustments. He then asked Mr. Hilyard why the
definition of "political party" was originally included in the
bill.
MR. HILYARD repeated that the concern was to address some of the
points brought up in the court order last fall.
SENATOR THERRIAULT asked if the court made a finding based on
the merits of the case and issued a temporary order granting the
injunction.
MR. HILYARD said that is his understanding.
MS. VANESSA TONDINI, staff to Representative McGuire, told
members the second part of the bill addresses litigation brought
by the Green Party against the Division of Elections. That
litigation grew out of the Green Party's dissatisfaction with
the interplay between the results of the 2002 gubernatorial
election and the definition of "political party" in the Alaska
Elections Act. That definition currently requires a party to
nominate a candidate for governor who manages at least three
percent of the popular vote in a gubernatorial election.
Alternatively, a party can register voters under its banner if
the number equals three percent of the total number of votes
cast for governor in the immediately preceding general election.
MS. TONDINI explained that Diane Benson, the Green Party
candidate in 2002, garnered less than the three percent needed
to maintain Green Party status. In the lawsuit, the Green Party
asked the court to enjoin enforcement of the law for the period
through the 2004 election so it could continue to participate in
politics for the benefit of being a full political party. Judge
Reese seceded to the Green Party's request and granted a
preliminary injunction on November 3, 2003. Judge Reese noted in
his court order that the Green Party had been successful in
winning over six percent of the votes in races for federal
elections, namely for U.S senator and U.S. representative. He
determined that the Green Party would face irreparable harm if
denied party status. Therefore, HB 414 directly responds to the
court order by expanding the types of statewide races that the
Division of Elections can review to ascertain whether a party
enjoys enough popular support to merit official status. The
House Judiciary Committee felt it was its place to fix the
definition to undo the gridlock caused by the injunction.
SENATOR THERRIAULT pointed out the injunction has three parts:
it was granted until the general election in 2004 and it says
the legislature can correct the problem statutorily or it can be
corrected by further order of the court. There is some
uncertainty because the court could come back and modify the
injunction. Therefore Representative McGuire chose the option of
fixing the problem with a statutory change.
MS. TONDINI said that is correct and that Representative McGuire
felt fixing the problem was within the legislature's purview and
was the better choice.
SENATOR THERRIAULT asked which races received six percent of the
Green Party vote.
MS. TONDINI did not have the names of the individuals in the
U.S. senate and representative races at that time.
SENATOR ELLIS asked if the sponsor asked that the intent
language be omitted.
CHAIR SEEKINS said it is his personal philosophy that the
legislature should do nothing to restrict a future legislature
from considering any question it wants to. In addition, he
reminded members that intent language is not binding.
SENATOR ELLIS asked if it was Chair Seekins' decision to omit
the intent language in the CS.
CHAIR SEEKINS said it was his intent that the committee
reconsider the original version of the bill. He said he would be
glad to address a motion to include that language.
MS. TONDINI indicated the intent language was added to clarify
the sponsor's intent to not circumvent the binding effect that
the initiative process would have. Although one legislature
cannot bind the next, Representative McGuire wanted to make it
clear that she did not intend to make any changes to this law
shortly after it passed.
CHAIR SEEKINS said he appreciates her intent but he did not want
to say that someone else could not do that.
TAPE 04-45, SIDE A
SENATOR THERRIAULT asked if the sponsor intends that the
definition of political party apply retroactively to the current
case.
MS. TONDINI said it would apply prospectively.
MS. SARA FELIX, Assistant Attorney General, Department of Law
(DOL), offered to answer questions.
SENATOR THERRIAULT commented that the judge has granted an
injunction until the November election unless the legislature
changes the statute or the court takes further action. He asked
Ms. Felix if the court will consider a new statute enacted by
the legislature.
MS. FELIX said it is her understanding, from the terms of the
court order, that the court would consider it. She would
certainly submit the bill in the litigation, which is ongoing.
SENATOR THERRIAULT asked if the legislature wants Section 7 to
only apply after the November election, it could do so by using
a delayed effective date.
MS. FELIX said that could also be accomplished using
transitional language. She said the general rule is that a law
that is enacted subsequent to an event applies prospectively,
not retroactively.
SENATOR THERRIAULT asked Ms. Felix if there was any discussion
[during the litigation] about whether the races that garnered
six percent of the Green Party vote were contested races.
MS. FELIX told members the candidates in the November 2002
election for U.S. Senate were Jim Dore for the Alaska
Independence Party, Frank Vandersaar for the Democratic Party,
Ted Stevens for the Republican Party, Jim Sykes for the Green
Party, and Leonard Karpinski for the Libertarian Party. In that
race, Mr. Sykes received 7.24 percent of the vote. The
candidates for U.S. Representative in that election were Don
Young for the Republican Party, Russell DeForest (ph) for the
Green Party, Rob Cliff for the Green Party, and Clifford Green
for the Democratic Party. In the briefing on the motion for
preliminary injunction, the issue of whether or not those two
races were contested was not discussed. The focus of the
briefing was the reasonableness of the statute, which ties the
modicum of the political support requirement to the
gubernatorial race rather than the other races that the Green
Party was advocating for. The state argued that the
legislature's choice of the gubernatorial race was reasonable.
SENATOR THERRIAULT asked when that litigation will be completed.
MS. FELIX said the trial is set to begin November 22, 2004. By
court rule, judges have six months in which to issue an order.
She noted that Judge Reese has retired so a new judge will be
assigned to the case.
SENATOR OGAN asked how the court determines which judge gets
assigned to a case.
SENATOR FRENCH said the presiding judge makes the decision.
CHAIR SEEKINS questioned the Green Party's purpose in filing the
lawsuit.
MS. FELIX explained that at the 2002 general election, the Green
Party candidate did not receive the required three percent of
the gubernatorial vote so it lost political party status. The
party wanted to retain that status, which allows participation
in the primary election and offers certain fundraising
advantages under the APOC statutes. Therefore, the Green Party
sued the state contesting the lost party status determination.
CHAIR SEEKINS said in effect, the Green Party is saying that
this one race should not affect its ability to be a recognized
political party.
MS. FELIX thought the Green Party's position is that it has been
a legitimate, recognized political party for the last 12 years
and had one bad gubernatorial race so it should not be denied
political party status. Treating the Green Party differently
from other similarly situated parties would be a denial of equal
protection of the law.
CHAIR SEEKINS asked if the judge is saying that is a legitimate
question that needs to be answered and it would be helpful for
the legislature to clarify its position.
MS. FELIX felt that is a very fair characterization.
CHAIR SEEKINS asked if this legislation, if enacted, will help
to clarify the issue as to whether the Green Party should be a
recognized political party for the next election and in
elections thereafter.
MS. FELIX said that is correct.
SENATOR THERRIAULT asked Ms. Felix to describe how Section 7
would work.
MS. FELIX said it appears that Section 7(A) would require
nominating a candidate for governor who received three percent
of the vote. Section 7(B) says if the office of governor is not
on the ballot, the office of U.S. senator would be used to
determine whether that nomination received three percent of the
vote at the last election. Section 7(C) says if neither the
office of governor nor the office of U.S. senator is on the
ballot, the office of U.S. representative would be used.
SENATOR THERRIAULT asked if the legislation would essentially
create a specific chain of which election should be looked to.
MS. FELIX agreed it would create a hierarchy of which race to
use.
SENATOR FRENCH did not believe this legislation would fix the
problem that occurred in 2002 since the gubernatorial race is
the first one that would be considered. He noted the Green Party
could have won the U.S. senate seat that year but still not be a
recognized political party.
MS. FELIX said it leaves the office of governor as the primary
touchstone. She said it does not appear to fully address the
concerns set out in the order for injunctive relief.
SENATOR FRENCH asked if the party candidate gets two percent in
the governor's race and wins the U.S. senate race, the party
will not be recognized as a political party if both of those
occur on the same ballot under the definition in the bill.
MS. FELIX said that is how she sees it.
SENATOR THERRIAULT suggested that a person who won a statewide
race would have more than three percent of the vote.
CHAIR SEEKINS asked if the judge did not make a decision based
on the merits at this time; he only granted a preliminary
injunction, which grants the Green Party continued recognition
until the earlier of the general election in 2004, a statutory
change, or the court takes further action.
MS. FELIX said that is a correct summation. She said the merits
of the case remain to be litigated and it is possible that the
current statute could be upheld.
CHAIR SEEKINS asked if the intent is that HB 414 be prospective
so that the new rules apply to the general election this fall so
that the legislature does not foul up the Green Party status in
2004.
MS. FELIX said if Chair Seekins' concern is that litigation will
not be resolved until after the general election and this bill
might affect the general election and he does not want it to
affect the Green Party's current status as a recognized
political party, the committee could put transitional language
in the bill. She expressed concern about relying on the
assumption that passage of this bill would not impact the
litigation. She said if that legislative intent is put on the
record, she would not go to court and say the legislature has
enacted this bill and it applies to the lawsuit.
SENATOR THERRIAULT felt the legislature should speak to that
directly. He then moved a conceptual amendment [Amendment 2]
that would place a delayed effective date on Section 7 until
after the November 2004 general election.
CHAIR SEEKINS announced that without objection, Amendment 2 was
adopted.
SENATOR THERRIAULT asked if the court looked at the competitive
nature of the races.
MS. FELIX said the court did not.
SENATOR THERRIAULT recalled the dynamics of the races that Ms.
Felix spoke to earlier were that the candidates fielded in those
races by the Democratic Party did not garner any kind of
excitement. He questioned whether those races can be viewed as a
sudden groundswell of support for the Green Party and what it
stands for, rather than a mere lack of options. He said the
intent is to measure recognition of political parties via the
depth of support by the general voters. He repeated that he does
not know that two races, just due to lack of competition, are a
true indication of support.
CHAIR SEEKINS said the U.S. senate race in 2004 will certainly
be a competitive race, as will Senator Ted Stevens' seat when he
retires. He said the contested races determine where the real
support for the parties is and he believes this next race will
show that.
CHAIR SEEKINS then noted with no further testimony or
discussion, public testimony was closed.
SENATOR THERRIAULT moved SCS CSHB 414(JUD) from committee with
individual recommendations and its attached zero fiscal notes.
SENATOR ELLIS objected.
SCS CSHB 414(JUD) moved from committee with Senators Ogan,
Therriault and Seekins in favor, and Senators Ellis and French
opposed.
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