Legislature(2021 - 2022)BUTROVICH 205
04/18/2022 01:30 PM Senate JUDICIARY
Note: the audio ![]()
and video ![]()
recordings are distinct records and are obtained from different sources. As such there may be key differences between the two. The audio recordings are captured by our records offices as the official record of the meeting and will have more accurate timestamps. Use the icons to switch between them.
| Audio | Topic |
|---|---|
| Start | |
| SB39 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 39 | TELECONFERENCED | |
SB 39-BALLOT CUSTODY/TAMPERING; VOTER REG; MAIL
1:35:23 PM
CHAIR HOLLAND announced the consideration of SENATE BILL NO. 39
"An Act relating to elections; relating to voter registration;
relating to ballots and a system of tracking and accounting for
ballots; establishing an election offense hotline; designating
as a class A misdemeanor the collection of ballots from other
voters; designating as a class C felony the intentional opening
or tampering with a sealed ballot, certificate, or package of
ballots without authorization from the director of the division
of elections; and providing for an effective date."
CHAIR HOLLAND noted that this was the sixth hearing; the
committee considered six amendments during the previous hearing;
and there were additional amendments to consider today. He asked
the sponsor if he had any comments on the bill.
1:36:07 PM
SENATOR SHOWER stated that the bill was challenging, so there
were numerous amendments. He characterized the bill as generally
aligned with the companion bill. He advised that he was
withdrawing Amendment 7.
1:38:19 PM
SENATOR SHOWER moved to adopt Amendment 8, work order 32-
LS0204\D.9.
32-LS0204\D.9
Klein
4/13/22
AMENDMENT 8
OFFERED IN THE SENATE BY SENATOR SHOWER
TO: CSSB 39(JUD), Draft Version "D"
Page 2, line 24, following "or":
Insert "for perjury under"
Page 2, line 26, following "perjury":
Insert "and witnessed by an election official"
Page 3, line 16:
Delete "director"
Insert "division"
Page 3, line 20:
Delete "director"
Insert "division"
Page 3, line 23:
Delete "director"
Insert "division"
CHAIR HOLLAND objected for discussion purposes.
1:38:34 PM
SCOTT OGAN, Staff, Senator Mike Shower, Alaska State
Legislature, Juneau, Alaska, explained that Amendment 8
clarifies that a prosecution under AS 11 is a prosecution for
perjury. It would also replace "director" with "division" in
several instances. He characterized Amendment 8 as a language
cleanup amendment.
1:38:59 PM
SENATOR KIEHL asked whether the reference to an election
official included a voter registrar.
MR. OGAN answered yes; an election official refers to staff that
works for the Division of Elections.
SENATOR KIEHL pointed out that he was a voter registrar, but he
did not work for the Division of Elections. He surmised he would
not be able to witness these applications.
1:39:48 PM
MR. OGAN deferred to the Division of Elections.
1:40:34 PM
MICHAELA THOMPSON, Administrative Operations Manager, Absentee &
Petition Office Division of Elections, Anchorage, Alaska,
answered that there is a difference between election officials
and election registrars. She explained that typically election
officials work on Election Day. Registrars register people to
vote. For example, they may try to get people registered to vote
at events. However, they are not considered election officials.
1:41:16 PM
MR. OGAN stated that was the sponsor's intent.
CHAIR HOLLAND clarified that election registrars are not
considered election officials.
1:41:39 PM
SENATOR KIEHL said that gives him pause because this section of
the bill relates to registering 30 days before an election. It
is not limited to the day of the election registration. He
explained that registrars obtain approximately three hours of
training to ensure that voter registration adheres to rules.
Under Amendment 8, a registrar could not help someone with
registration two weeks from the election. They could only help
people up to 30 days from the election. He pointed out that
people would have a nebulous 30 days, where presumably a person
would need to go in person to the division to register. He
related his understanding that voter registration could occur up
to 30 days before an election, which is current law, but then
only at a polling place or the Division of Elections, which is
confusing.
MR. OGAN responded the intent of Amendment 8 was to ensure that
an election official could authenticate a voter's registration
if it was necessary. He envisioned it could happen if someone
registered, but something on the form wasn't checked. An
election official could cross-check it.
1:43:50 PM
SENATOR SHOWER asked whether his concern was related to the 30-
day window or something to do with the election official.
SENATOR KIEHL stated his concern was that Amendment 8 would
narrow the 30-day window rather than the explanation given when
the sponsor and his staff presented the committee substitute
(CS). He recalled that voters could register up until and on
Election Day. Under Amendment 8, the person can only do so at a
voting station; however, the Division of Election registrars are
trained volunteers who could assist people in completing a voter
registration application.
SENATOR SHOWER stated that was not the intent of Amendment 8. He
added that if an official made an honest mistake, such as
forgetting to sign an application, he did not think the
Department of Law would take action. He did not believe
Amendment 8 did what Senator Kiehl described.
1:45:32 PM
MS. THOMPSON related her understanding that the concern was that
Amendment 8 does not include registrars who assist people in
registering to vote in the 30-day window prior to an election.
She said she was unsure whether that was the question.
1:46:03 PM
SENATOR KIEHL referred to page 2, line 26, which relates to
voter registration applications within 30 days before an
election. The affidavit must be signed under penalty of perjury,
which is current law. Amendment 8 would say that the affidavit
must be signed under penalty of perjury and an election official
must witness it. Since it must be witnessed by an election
official, it must be done at an election office or polling
place. He expressed concern that Amendment 8 would not allow a
registrar to assist during the 30 days prior to an election.
MS. THOMPSON wondered if he was asking for the division's
process.
SENATOR SHOWER noted that Amendment 8 combined several changes.
He understood Senator Kiehl's point about registrars if they are
not included as election officials. He stated the intent was to
capture all the officials asked to register voters within the 30
days up to an election. The voter would need to vote a
questioned ballot to allow the division to verify their
eligibility to vote. He asked the division if Amendment 8
stopped that process.
1:47:44 PM
MS. THOMPSON was unsure whether registrars fell within the
definition of election officials. She acknowledged that the
definition might solve the issue.
1:48:09 PM
At ease
1:49:57 PM
CHAIR HOLLAND reconvened the meeting.
1:50:25 PM
THOMAS FLYNN, Assistant Attorney General, Labor & State Affairs
Section, Civil Division, Department of Law, Anchorage, Alaska,
referred to the definition of "election official" in AS
15.80.010, noted that it excluded registrars. It read:
(7) "election official" means election board members,
members of counting or review boards, employees of the
division of elections, and absentee voting officials;
MR. FLYNN stated that Amendment 8 would add a witness requirement
by an election official, but it would not allow a registrar to be
that witness.
1:51:04 PM
SENATOR SHOWER asked whether he could recommend language to
broaden the definition.
MR. FLYNN responded that the statutes address absentee witness
requirements for absentee ballots. He recalled the statute
included an official, a notary, or someone over 18 years of age.
1:51:58 PM
SENATOR MYERS said he understood Senator Kiehl's point that
Amendment 8 produces an odd 30-day time period when it could be
difficult for potential voters to register for an election.
Still, voters have many opportunities to register to vote. For
example, a person could show up on Election Day and vote in
person or they could vote early within 15 days of the election.
He offered his view that covers a substantial portion of the 30-
day window. The bill already states that someone registering on
Election Day would need to vote an in-person absentee ballot. He
suggested that from a practical standpoint, it was not a big
issue.
1:53:09 PM
SENATOR KIEHL stated that anyone who casts a ballot by
registering within 30 days of an election would vote the
equivalent of a provisional or questioned ballot. He asked why
Amendment 8 would add a witness requirement since the ballot
would be sequestered, the division would verify voter
registration, and ensure that only one ballot was cast.
1:53:44 PM
MR. OGAN explained that the sponsor was also working with
members in the House on ballot reform. One issue highlighted was
ensuring that people could register to vote up to and on
Election Day. It seemed appropriate to have an election official
check the individual's identification in person since this is a
departure from the requirement to register 30 days in advance of
an election.
SENATOR SHOWER added that he had held numerous discussions on
the bill to address concerns and build consensus.
1:55:42 PM
SENATOR HUGHES asked whether the election official would merely
witness the signature or if they would ensure that the voter had
met the 30-day residency requirement.
SENATOR SHOWER answered that voting a questioned ballot was
vital to allow the division to review the voter's eligibility.
1:56:21 PM
SENATOR HUGHES restated her question whether a Division of
Election official would check for proof of residency or just
witness the signature.
1:56:43 PM
MR. OGAN referred to page 2, line 25 through page 3, line 14 of
Version D, which listed the required documentation voters must
provide when registering to vote. He said this is why he
strongly advocates having an election official review these
documents. He questioned whether a registrar would be as
diligent as the Division of Election's staff in reviewing the
documents.
1:57:32 PM
SENATOR HUGHES acknowledged that the election official would not
only witness a person's signature but must verify that the
person meets the residency requirements. She wondered if a
person who lives in a remote area of the state could accomplish
this by mail or if applying within 30 days of an election
required an in-person application.
MR. OGAN answered that the intent was to require in-person
applications for those applying within 30 days of an election.
1:58:29 PM
SENATOR SHOWER reminded members that Amendment 8 represented a
compromise.
1:58:36 PM
SENATOR KIEHL said the answer to Senator Hughes' question is no.
He explained that voter qualifications in AS 15.05.011 (13)(a)
require a person to sign an affidavit under penalty of perjury
stating that they had established residency at least 30 days
before the election, witnessed by an election official. Thus,
the election official is merely witnessing the person's
signature. AS 15.05.011 (13)(b) requires the person to provide
proof, such as a utility bill, bank statement, or other
documentation for the division to verify their residency. He
remarked that the documentation is appropriate; however, a
registrar could witness the signature. He maintained that
someone could sign the affidavit and mail it to the Division of
Elections. The division must verify that the voter met the
residency requirements. He was unsure that Amendment 8 provides
any additional benefit.
1:59:51 PM
CHAIR HOLLAND removed his objection.
1:59:50 PM
SENATOR KIEHL objected.
2:00:01 PMA
A roll call vote was taken. Senators Hughes, Myers, Shower, and
Holland voted in favor of Amendment 8, and Senator Kiehl voted
against it. Therefore, Amendment 8 was adopted on a 4:1 vote.
CHAIR HOLLAND stated that Amendment 8 was adopted on a vote of 4
yeas and 1 nay.
2:00:35 PM
SENATOR SHOWER moved to adopt Amendment 9, work order LS-
0204\D.31.
32-LS0204\D.31
Klein
4/13/22
AMENDMENT 9
OFFERED IN THE SENATE BY SENATOR SHOWER
TO: CSSB 39(JUD), Draft Version "D"
Page 7, line 19, following "voting":
Insert ", certificate and envelope review,"
Page 7, line 20:
Delete "polls are opened"
Insert "division begins reviewing voter
certificates and envelopes"
Page 15, line 20, following "barcode":
Insert "or online ballot tracking mark under
AS 15.20.221"
Page 16, line 27, following "records,":
Insert "whether a division security breach
compromised the voter's election data, whether the
voter is an inactive voter,"
Page 17, line 15, following "barcode":
Insert "or online ballot tracking mark under
AS 15.20.221"
Page 18, line 8, following "certificate,":
Insert "or"
Page 18, lines 8 - 9:
Delete ", or hunting or fishing license"
Insert "[, OR HUNTING OR FISHING LICENSE]"
Page 19, line 1, following "establish":
Insert "or procure"
Page 19, line 2:
Delete ", available through the division's
Internet website,"
Page 19, line 17, following "established":
Insert "or procured"
Page 19, line 24, following "establishing":
Insert "or procuring"
Page 20, line 5, following "record":
Insert ", to the voter through the online ballot
tracking system,"
Page 20, line 15, following "electronically":
Insert "through the online ballot tracking
system"
2:00:39 PM
CHAIR HOLLAND objected for discussion purposes.
2:00:44 PM
MR. OGAN explained that Amendment 9 would allow poll watchers to
be present for the certificate and envelope review. Ballots
would not be counted until after the polls close on Election
Day. He stated that the intent of Amendment 9 was to speed up
the vote-counting process since reviewing the certificate and
envelope could be done in advance, so it would take little time
to feed the ballots into the tabulator.
2:01:32 PM
At-ease
2:03:06 PM
CHAIR HOLLAND reconvened the meeting.
2:03:17 PM
SENATOR SHOWER asked to withdraw Amendment 9 and take it up
later in the meeting.
CHAIR HOLLAND stated that Amendment 9 would be rolled to the
bottom of the calendar.
2:03:41 PM
SENATOR SHOWER moved to adopt Amendment 10, work order 32-
LS0204\D.10.
32-LS0204\D.10
Klein
4/13/22
AMENDMENT 10
OFFERED IN THE SENATE BY SENATOR SHOWER
TO: CSSB 39(JUD), Draft Version "D"
Page 8, line 16, following "title.":
Insert "A signed ballot chain-of-custody document
must accompany a ballot or group of ballots in the
division's possession. An election official shall sign
the document immediately upon receiving or releasing a
ballot or group of ballots."
Page 8, following line 20:
Insert a new subsection to read:
"(c) The division may not allow a municipality
to use the division's data or equipment for a
municipal election unless the municipality enforces a
chain-of-custody system that satisfies the standards
of the division's chain-of-custody system established
under this section."
Page 10, line 8, following "or":
Insert "for perjury under"
Page 19, line 1, following "establish":
Insert "or procure"
Page 19, line 2:
Delete ", available through the division's
Internet website,"
Page 19, line 17, following "established":
Insert "or procured"
Page 19, line 24, following "establishing":
Insert "or procuring"
Page 25, following line 2:
Insert a new bill section to read:
"* Sec. 51. AS 15.56.080(a) is amended to read:
(a) A person commits the crime of election
official misconduct in the second degree if while an
election official, and while the polls are open, the
person
(1) opens a ballot received from a voter at
an election, unless permitted by ordinance in a local
election;
(2) marks a ballot by folding or otherwise
so as to be able to recognize it;
(3) otherwise attempts to learn how a voter
marked a ballot; [OR]
(4) intentionally fails to sign a ballot
chain-of-custody document upon receiving or releasing
a ballot or group of ballots; or
(5) allows a person to do one of the acts
prescribed by (1) - (4) [(1), (2), OR (3)] of this
subsection."
Renumber the following bill sections accordingly.
Page 26, line 17:
Delete "and"
Page 26, line 18, following "Act,":
Insert "and AS 15.56.080(a), as amended by sec.
51 of this Act,"
Page 26, lines 18 - 19:
Delete "secs. 46 - 50"
Insert "secs. 46 - 51"
Page 26, line 27:
Delete "Section 58"
Insert "Section 59"
Page 26, line 28:
Delete "secs. 59 and 60"
Insert "secs. 60 and 61"
2:03:44 PM
CHAIR HOLLAND objected for discussion purposes.
2:03:55 PM
MR. OGAN explained Amendment 10. He apologized for the multi-
faceted amendment combining several things. He referred to page
8, line 16, noting it would add additional ballot chain-of-
custody procedures. It would require a signed ballot chain-of-
custody document to accompany groups of ballots. Municipalities
must conform to chain-of-custody rules to use the Division of
Election's equipment and data. It would make it a crime for
election officials to intentionally fail to sign a ballot chain-
of-custody document. Further, it includes language specifying
that the ballot tracking website must be "procured" rather than
"established" by the division. Finally, it makes technical and
conforming changes.
2:06:10 PM
SENATOR KIEHL referred to the crime Amendment 10 would create
for intentionally failing to sign a chain-of-custody document.
He asked whether it would be a crime not to sign the forms if
something appears irregular, such as it appears that someone
tampered with the ballots.
2:06:46 PM
SENATOR SHOWER offered his belief that the Department of Law
(DOL) would look at the totality of the circumstances. He did
not envision an election official would sign a form if someone
had tampered with the ballots since they have protocols they
must follow. Amendment 10 would provide DOL the authority to
charge the official with a crime.
2:08:50 PM
KACI SCHROEDER, Assistant Attorney General, Legal Services
Section, Criminal Division, Department of Law, Juneau, Alaska,
described how she interpreted the chain-of-custody protocol.
Someone gets a piece of evidence and turns it over to officer 1.
Officer 1 states they received it on this date, time, and hands
it over to officer 2, who also signs that they received it on
this date and time. The officer does not investigate or verify
the evidence, but merely signs the form to acknowledge they have
custody of the evidence. Therefore, if someone does not sign the
chain-of-custody document, the person could be guilty of the
crime.
MS. SCHROEDER agreed with Senator Shower that if someone
receives damaged ballots and says they look weird, and fails to
sign the document, the department will not likely prosecute the
person. However, it would meet the strict analysis of the
elements of the offense.
2:10:19 PM
SENATOR HUGHES asked whether the document had space for the
person to write on the document that they received it, but
something was awry.
MS. SCHROEDER answered yes. She said if a person made a note and
signed the form to indicate they had custody of the ballots, the
Department of Law would not prosecute. She noted there were a
lot of different ways to approach the issue.
2:11:13 PM
SENATOR KIEHL noted one key thing would be the intent to change
the election. He asked whether a crime is committed in law
enforcement if an officer failed to sign the chain-of-custody
document, and it showed up in the crime lab with a gap.
MS. SCHROEDER answered that they do not prosecute, but a gap
becomes an issue since it opens it up for arguments which
ultimately a jury will decide whether to accept it as valid
evidence.
2:12:28 PM
SENATOR KIEHL asked whether the department could charge someone
who attempts to tamper with the election if Amendment 10 did not
pass.
MS. SCHROEDER responded that if someone did not sign the chain-
of-custody document with the intent to alter the outcome of the
election, it would be necessary to include some language similar
to Amendment 10. However, she also thought that there was
another crime relating to misconduct if someone intended to
alter the outcome of an election.
SENATOR KIEHL related his understanding that the Division of
Elections stopped letting municipalities use state tabulators
and voting machines for precincts. Thus, every municipality has
incurred the expense of purchasing its election equipment.
Amendment 10 would not allow a municipality that conducted its
elections under municipal code that did not follow the state's
chain-of-custody rules to use the state's data. He took that to
include the voter registration rolls. He asked whether that was
the correct interpretation.
MR. OGAN answered yes. He stated that the ballot chain of
custody is essential and avoids the issue of an unaccounted box
of ballots showing up.
2:15:52 PM
SENATOR MYERS suggested exempting municipalities from the
registration data provision. He emphasized that municipalities
need the data to conduct an election properly. The division
already releases most of the registration data, such as the
names, addresses, and political party affiliations to anyone who
pays a fee of $20. He noted they would receive scrubbed data to
avoid identity theft issues. He said he favored a conceptual
amendment to exempt the registration data.
2:17:08 PM
SENATOR SHOWER pointed out that the reason for this provision
was concern about elections conducted by mail, resulting in mass
mailouts of ballots without chain of custody, and a data breach
the Division of Elections experienced. He emphasized the need to
have municipalities not incorporate policies that are less
restrictive than the ones in SB 39 to ensure that the election
systems are secure. He suggested that 5,000 more ballots were
mailed out in Juneau than were on the voter rolls.
2:19:13 PM
SENATOR KIEHL disagreed with Senator Shower's allegation that
5,000 more ballots went to Juneau residents than were on the
voter rolls. However, the language in Amendment 10 was not
limited to elections by mail, or absentee ballots, but would
apply to any and all elections that municipalities run using the
state's voter rolls. He offered his view that this language was
difficult to interpret. He read a portion of subsection (c) on
lines 9-10, which read, "...unless the municipality enforces a
chain-of-custody system that satisfies the standards of the
division's chain-of-custody system..." He was unsure that this
language would allow for a stricter system, but it certainly
doesn't allow for local control of elections and use of
resources. He argued that by not allowing municipalities access
to voter registration data and rolls, it will create hurdles for
citizens against the general principle of local control. He
stated his objection to Amendment 10.
2:21:08 PM
CHAIR HOLLAND expressed concern about the multiple issues
incorporated in Amendment 10.
2:21:27 PM
SENATOR HUGHES commented that the combined population in
Anchorage and the Mat-Su Borough represents 54 percent of the
state's population. Thus, how those elections are conducted
really could impact the state. She offered her belief that the
local elections should have the same or stricter chain-of-
custody standards. However, she said she would not want
municipalities to create a duplicate system of registration.
2:22:49 PM
SENATOR MYERS wondered if the state did not release its voter
registration data, whether people would need to register
multiple times to vote, at the city, borough, and state level.
He noted that SB 39 currently allows smaller municipalities to
request that the state run their elections. He expressed concern
that it would become a default for these small municipalities.
2:24:15 PM
MR. OGAN referred to page 1, lines 1-4 of Amendment 10, which
establishes chain of custody or a paper trail. He offered his
view that this would create a standard that he hoped
municipalities would follow.
MR. OGAN suggested that the committee may wish to break
Amendment 10 into separate amendments.
SENATOR SHOWER indicated he had asked the amendments to be
grouped together.
2:25:52 PM
CHAIR HOLLAND removed his objection.
2:25:59 PM
SENATOR KIEHL objected.
2:26:02 PM
A roll call vote was taken. Senators Shower and Hughes voted in
favor of Amendment 10, and Senators Kiehl, Myers, and Holland
voted against it. Therefore, Amendment 10 failed on a 2:3 vote.
CHAIR HOLLAND stated that Amendment 10 failed on a vote of 2
yeas and 3 nays.
2:26:44 PM
SENATOR KIEHL posed a question to determine whether he would
offer Amendment 11. He referred to page 8, lines 27-30, which
read:
(b) The director shall by regulation develop a process
to, following the closing of the polls, void all
unused ballots, spoiled ballots, and unopened packs of
ballots without mutilating or destroying the forensic
integrity of the unused ballots, spoiled ballots, or
unopened packs of ballots.
2:27:30 PM
At ease
2:27:42 PM
CHAIR HOLLAND reconvened the meeting.
2:27:48 PM
SENATOR KIEHL moved to adopt Amendment 11, work order 32-
LS0204\D.16.
32-LS0204\D.16
Ambrose/Klein
4/11/22
AMENDMENT 11
OFFERED IN THE SENATE BY SENATOR KIEHL
TO: CSSB 39(JUD), Draft Version "D"
Page 8, lines 19 - 20:
Delete "without mutilating or destroying the
forensic integrity of the unused ballots, spoiled
ballots, or unopened packs of ballots"
2:27:54 PM
CHAIR HOLLAND objected for discussion purposes.
2:28:02 PM
SENATOR KIEHL stated that the question was what location poll
workers or election officials would void any unused, spoiled, or
unopened packs of ballots. He asked whether poll workers would
need to go through all the packs of ballots and void them by
destroying or punching through countless sealed packs of 25
ballots or if they should be delivered to the Division of
Elections.
2:28:34 PM
MS. THOMPSON interpreted the language in subsection (b)
"following the closing of the polls" to mean that the activity
would happen at the polling place by an election official. The
election official would then send the voided ballots to the
Division of Elections.
SENATOR KIEHL stated his intent to proceed with Amendment 11
since it would indicate that the Division of Elections does not
need to maintain forensic integrity when voiding unused,
spoiled, or unopened packs of ballots.
SENATOR KIEHL explained that the division must provide more
ballots to polling places than it anticipates voters will need
so no one shows up and can't vote. Amendment 11 would indicate
that at the end of the night, poll workers must stamp or mark
unused ballots, spoiled ballots, or unopened packs of ballots.
He clarified that the language does not lend itself to poll
workers opening and marking the ballots, which would add hours
to the process on election night.
2:30:14 PM
SENATOR SHOWER agreed with Senator Kiehl that Amendment 11 would
not require poll workers to open the sealed packs of 25 ballots.
He emphasized the necessity of having all the ballots returned
to a central location to preserve evidence in case it was
needed.
2:31:16 PM
MS. THOMPSON described the current process. Once the polls close
on Election Day, poll workers fill out their accounting form,
listing the last ballot stub used. The box containing the unused
ballots would be sealed. Any partially used pad would be torn in
half and the ballot stub would be put in the ballot stub
envelope to return to the division. Any box or boxes of unused
ballots and ballot stubs are returned to the division on
election night for those in an urban area. For those in a rural
setting, the unused ballot stubs and ballots would be placed in
a bag and mailed to the division.
2:32:11 PM
SENATOR SHOWER asked whether the ballots were in sealed packets
of 25.
MS. THOMPSON replied that she did not recall if they are sealed
in packs of 25, but they come in packs of 25.
SENATOR SHOWER remarked there would not be hundreds of ballots
to destroy. He offered his view that Amendment 11 was not
necessary.
2:32:46 PM
SENATOR HUGHES asked how many extra ballots the division
allocates to a polling place.
MS. THOMPSON responded that she does not have those figures, but
she offered to provide them to the committee. She noted that the
election supervisor reviews the number of voters who voted at
the specific polling place.
2:33:28 PM
SENATOR KIEHL asked how long the process takes once the polls
close.
SENATOR SHOWER answered that he was unsure. He related that the
Division of Elections covers this in regulation. He recalled
that poll workers described different processes they used at
polling places.
2:34:29 PM
CHAIR HOLLAND maintained his objection.
2:34:33 PM
A roll call vote was taken. Senator Kiehl voted in favor of
Amendment 11, and Senators Shower, Hughes, Myers, and Holland
voted against it. Therefore, Amendment 11 failed on a 1:4 vote.
CHAIR HOLLAND stated that Amendment 11 failed on a vote of 1 yea
and 4 nays.
2:35:15 PM
SENATOR SHOWER moved to adopt Amendment 12, work order 32-
LS0204\D.29. He asked Mr. Ogan to identify if more than one
issue was combined in this amendment.
32-LS0204\D.29
Klein
4/12/22
AMENDMENT 12
OFFERED IN THE SENATE BY SENATOR SHOWER
TO: CSSB 39(JUD), Draft Version "D"
Page 13, following line 16:
Insert new bill sections to read:
"* Sec. 30. AS 15.20.066(a) is amended to read:
(a) The director shall adopt regulations
applicable to the delivery of absentee ballots by
electronic transmission in a state election [AND TO
THE USE OF ELECTRONIC TRANSMISSION ABSENTEE VOTING IN
A STATE ELECTION BY QUALIFIED VOTERS]. The regulations
must create a system to verify a voter's identity and
[(1) REQUIRE THE VOTER TO COMPLY WITH THE
SAME TIME DEADLINES AS FOR VOTING IN PERSON ON OR
BEFORE THE CLOSING HOUR OF THE POLLS;
(2)] ensure the accuracy and, to the
greatest degree possible, the security, integrity, and
secrecy of the ballot process.
* Sec. 31. AS 15.20.066 is amended by adding a new
subsection to read:
(c) A voter may cast a ballot delivered by
electronic transmission under AS 15.20.081(d) - (f)."
Renumber the following bill sections accordingly.
Page 14, line 19:
Delete "shall [MAY NOT]"
Insert "may not"
Page 18, line 2:
Delete "or electronic transmission"
Insert "[OR ELECTRONIC TRANSMISSION]"
Page 26, line 11, following "Sec. 56.":
Insert "AS 15.20.066(b);"
Page 26, line 15:
Delete "sec. 46"
Insert "sec. 48"
Page 26, line 16:
Delete "sec. 47"
Insert "sec. 49"
Delete "sec. 48"
Insert "sec. 50"
Page 26, line 17:
Delete "sec. 49"
Insert "sec. 51"
Page 26, line 18:
Delete "sec. 50"
Insert "sec. 52"
Page 26, lines 18 - 19:
Delete "secs. 46 - 50"
Insert "secs. 48 - 52"
Page 26, line 26:
Delete "Section 45"
Insert "Section 47"
Page 26, line 27:
Delete "Section 58"
Insert "Section 60"
Page 26, line 28:
Delete "secs. 59 and 60"
Insert "secs. 61 and 62"
2:35:40 PM
CHAIR HOLLAND objected for discussion purposes.
2:35:46 PM
MR. OGAN explained that Amendment 12 was critical to ensure all
received ballots are electronically identified. He explained
that it isn't possible to put a watermark on an electronic
ballot, but perhaps a QR code would work; however, the sponsor
deferred to the division to decide how to implement ballot
integrity. He stated that the language on page 1, lines 14-16,
Section 31, would allow a voter to cast a ballot delivered by AS
15.20.081(d)-(f). It would require the director to establish a
method for verifying the identity of people requesting
electronic delivery of their absentee ballots.
2:37:20 PM
SENATOR SHOWER asked Mr. Ogan to mention any conforming
amendments and if the amendment addresses more than one issue.
He noted Amendment 12 had one conforming provision.
MR. OGAN agreed.
2:37:47 PM
SENATOR MYERS referred to page 1, line 9 and asked why the
language was removed that requires the voter to comply with the
same deadlines as for voting in person on or before the closing
hours of the polls.
2:38:11 PM
MR. OGAN responded that he was unsure that provision was
intended.
2:38:57 PM
At-ease
2:41:45 PM
CHAIR HOLLAND reconvened the meeting. He explained that no one
was online from Legislative Legal Services to answer the
question.
CHAIR HOLLAND tabled Amendment 12.
2:42:12 PM
SENATOR KIEHL moved to adopt Amendment 13, work order 32-
LS0204\D.38.
32-LS0204\D.38
Klein
4/12/22
AMENDMENT 13
OFFERED IN THE SENATE BY SENATOR KIEHL
TO: CSSB 39(JUD), Draft Version "D"
Page 13, lines 18 - 26:
Delete all material and insert:
"Sec. 15.20.068. Application for absentee ballot.
The division shall provide an absentee ballot
application by mail only when an eligible voter
expressly requests an application. An application may
not be distributed if a part of the application is
filled out for the voter. An application must
prominently display who sent the application and
prominently display "Application only/Not a ballot" on
the exterior address side of the envelope."
2:42:15 PM
CHAIR HOLLAND objected for discussion purposes.
2:42:27 PM
SENATOR KIEHL explained that Amendment 13 was a cleanup
amendment intended to meet the sponsor's intent. It retains
three requirements for absentee ballot applications. It must
clearly state who is sending the application, that it is an
application for a ballot and not a ballot, and it prohibits
someone from pre-filling out part or all of the application.
2:43:25 PM
SENATOR SHOWER stated that would make it easier for voters. He
indicated that testifiers thought they received multiple
ballots, but they were likely applications for ballots. He said
he was okay with clarifying it and tightening up the language.
CHAIR HOLLAND removed his objection; he found no further
objection, and Amendment 13 was adopted.
2:44:27 PM
CHAIR HOLLAND brought Amendment 12 off the table and it was
before the committee.
2:44:40 PM
SENATOR SHOWER deferred to Mr. Ogan.
2:45:00 PM
MR. OGAN asked why the language on page 1, lines 9-11 of
Amendment 12 was deleted.
2:45:27 PM
NOAH KLEIN, Attorney, Legislature Legal Counsel, Legislative
Legal Services, Legislative Affairs Agency, Juneau, Alaska,
stated that he drafted SB 39 according to the sponsor's intent.
He said it will take a few minutes for him to determine if this
was a conforming change.
2:45:54 PM
CHAIR HOLLAND tabled Amendment 12.
2:46:39 PM
SENATOR MYERS moved to adopt Amendment 14, work order 32-
LS0204\D.36.
32-LS0204\D.36
Klein
4/12/22
AMENDMENT 14
OFFERED IN THE SENATE BY SENATOR MYERS
TO: CSSB 39(JUD), Draft Version "D"
Page 15, line 23, through page 15, line 30:
Delete all material and insert:
"(m) An absentee ballot application must include
an option for a qualified voter to choose to receive
absentee ballots by mail for future statewide
elections for a period of four years. After the four-
year period concludes, the division shall notify the
voter that the voter may reapply to receive absentee
ballots by mail for another four-year period. If the
voter votes in person during the four year period, the
division shall stop sending the voter absentee
ballots. If a previous absentee ballot sent under this
section or other mail sent to the voter by the
division is returned as undeliverable, the division
shall stop sending the voter absentee ballots. A voter
may reapply every four years to receive absentee
ballots by mail."
2:46:46 PM
CHAIR HOLLAND objected for discussion purposes.
2:46:53 PM
SENATOR MYERS explained that Amendment 14 relates to the
provision that allows a voter to sign up for absentee ballots
and automatically receive them for subsequent elections. He
acknowledged this value to voters. Amendment 14 provides some
limits. The automatic absentee ballot applications would be
limited to four years to ensure that ballots are not being sent
to someone who died. The ongoing absentee status would end if
the voter appeared in person to vote during the four-year window
or if the election mail is returned as undeliverable.
2:49:06 PM
SENATOR SHOWER related that he discussed this issue with some
members from the other body, and believes this language
represents the middle ground. He said he is comfortable that
this provides safeguards since the division would not send
ongoing ballot applications unless the voter periodically
indicates they want to receive them.
2:49:50 PM
SENATOR KIEHL said he was curious why Amendment 14 used a four-
year period because it only represents one cycle in a
presidential or gubernatorial election. To be specific, it would
not cover the full cycle of a US Senate seat.
SENATOR MYERS acknowledged that it would cover a general and
regular primary election for two cycles since they are two-year
terms. This could potentially affect municipal elections. If a
voter applies for an ongoing absentee ballot application with
the Division of Elections, he was unsure how it would affect
municipal elections. He offered his view that the time period
seemed reasonable since the division cleans up the voter rolls
for those who fail to vote in four years.
2:51:56 PM
SENATOR KIEHL wondered how voters could receive their state
ballots if they are hunting or traveling and miss the state
elections but still want to show up to vote in person for
municipal elections.
SENATOR MYERS said he was unsure how municipal and state
elections interact. He suggested that those who wish to vote in
person probably should not sign up to receive ongoing absentee
ballot applications.
2:53:26 PM
SENATOR KIEHL said he noticed that Amendment 14 related only to
statewide elections. He asked why someone who voted in person in
a municipal election would be prevented from receiving ongoing
absentee applications.
2:54:13 PM
CHAIR HOLLAND asked if the Division of Elections had any
comment.
MS. THOMPSON replied that the Division of Elections does not
share the ballot application information with municipalities.
Municipalities and local elections have their own application
process separate from the Division of Elections. The state only
conducts local elections for Rural Education Attendance Area
Elections (REAAs).
2:54:57 PM
SENATOR MYERS related his understanding that the Division of
Elections tracks whether someone voted in a municipal election.
He asked whether the division tracks whether the person voted in
person or absentee.
MS. THOMPSON answered that the Division of Elections receives
voter history from municipalities within 60 days after their
municipal election certification. She noted that it does track
in person or absentee voting.
2:55:58 PM
MR. OGAN agreed that Amendment 14 would make the process more
complex, including creating more work for the division. He
stated it begs the question of what this language was trying to
prevent. He suggested leaving the statute as is, so long as the
person doesn't vote twice. He indicated it was a policy call.
2:56:44 PM
SENATOR HUGHES stated that she had heard anecdotally that some
people will vote absentee, then vote again in person, so
Amendment 14 would prevent it.
2:57:08 PM
SENATOR MYERS stated that part of the intent of the bill was to
ensure that someone does not impersonate someone. Suppose
someone filled out a ballot application using someone else's
name, which was one concern due to the data breach in 2020. He
stated that the intent of Amendment 14 was to prevent someone
who obtained hacked data, stole someone's identity, and filled
out an absentee application, from receiving ongoing ballot
applications. The voter could show up at the polling place to
vote.
2:58:20 PM
SENATOR HUGHES replied that was helpful.
2:58:23 PM
SENATOR KIEHL asked which ballot would be counted in the
scenario Senator Myers described
MS. THOMPSON responded that if the Division of Elections was
able to catch both ballots before they were run through a voting
machine, neither ballot would count. She stated that if the
division reviewed their absentee ballot by mail, and a person
had subsequently voted in person, that person would be required
to vote a questioned ballot.
2:59:11 PM
SENATOR KIEHL related his understanding that procedures were in
place and municipalities had similar safeguards. The bill would
also require a signature verification process. He offered his
view that Amendment 14 would add confusion for the voter who
believed they had signed up to receive an ongoing application
for an absentee ballot. Further, once the person was in travel
status they cannot vote in person. Finally, receiving less than
a single US election cycle for an ongoing ballot process
wouldn't be meaningful. He commented that he did not see the
benefit.
CHAIR HOLLAND directed attention to the language on lines 10-11,
which indicates that a voter may reapply every four years to
received absentee ballots by mail. Suppose someone applies for
absentee ballots, votes in person in year two, but plans to be
out of the state in years three and four. He asked whether that
language would disallow them from requesting an ongoing absentee
ballot. He wondered if the committee should consider removing
"every four years."
SENATOR MYERS answered that was not the intent. He suggested
consulting with Legislative Legal Services to ensure that
someone could immediately apply.
3:02:09 PM
SENATOR SHOWER expressed concern that someone could potentially
vote for someone else and there isn't currently a way to ensure
that doesn't happen. He viewed ceasing the ongoing ballot
application as a check to the system. He asked whether the
director would determine if the absentee or in-person vote
counts or if the decision was delegated to staff. He stated that
as directors change, the policy might also change.
SENATOR SHOWER restated the question. He asked whether the
Division of Election director determines if the absentee or in-
person vote would count or if it was codified in law.
3:04:04 PM
MS. THOMPSON responded that the division has a policy on
duplicate voting processes and how ballots are processed. She
deferred to Mr. Flynn.
MR. FLYNN answered that the process for duplicate ballots is
codified by regulation.
3:04:50 PM
SENATOR SHOWER asked whether it was possible for the director to
make the regulatory change.
MR. FLYNN explained that the regulations were done according to
the Administrative Procedures Act. He agreed that the director
could propose a regulation change. He acknowledged that there
are lots of places where the legislature delegated its authority
to the Division of Elections and those are codified in
regulation.
3:06:02 PM
SENATOR MYERS moved to adopt Conceptual Amendment 1 to Amendment
14.
CONCEPTUAL AMENDMENT 1 TO Amendment 14
Remove the language "every four years" from [lines 10-
11 of Amendment 1.
CHAIR HOLLAND pointed out that the language was on lines 10-11.
He asked whether he would like to replace it with other
language, for example, "at any time."
SENATOR MYERS related his understanding removing the language
would default to any time.
3:07:01 PM
SENATOR MYERS restated his motion to adopt Conceptual Amendment
1 to Amendment 14 to remove the language "every four years" on
lines 10-11.
CHAIR HOLLAND found no objection and Conceptual Amendment 1 to
Amendment 14 was adopted.
CHAIR HOLLAND stated that Amendment 14, as amended, was before
the committee.
3:07:32 PM
CHAIR HOLLAND removed his objection.
3:07:40 PM
SENATOR KIEHL objected.
A roll call vote was taken. Senators Shower, Hughes, Myers, and
Holland voted in favor of Amendment 14, as amended, and Senator
Kiehl voted against it. Therefore, Amendment 14, as amended, was
adopted on a 4:1 vote.
CHAIR HOLLAND stated that Amendment 14, as amended, was adopted
on a vote of 4 yeas and 1 nay.
3:08:12 PM
At ease
3:10:08 PM
CHAIR HOLLAND reconvened the meeting.
3:10:30 PM
CHAIR HOLLAND stated the committee was not going to revisit
Amendment 12.
3:10:44 PM
MR. KLEIN offered to respond to an earlier question on Amendment
12.
3:11:12 PM
CHAIR HOLLAND rescinded tabling Amendment 12. He stated that
Amendment 12 was before the committee.
3:11:40 PM
MR. KLEIN explained that Legislative Legal Services drafted
Amendment 12 according to the sponsor's intent. He referred to
the removal of lines 9-11 and said after the deletion of lines
5-7, subsection (a) no longer referred to the act of voting but
referred to delivering a ballot by electronic transmission. He
highlighted that paragraph (1) referred to complying with
deadlines for voting because there would no longer be electronic
absentee voting. Thus, there would no longer be a need to have a
timeline but reiterations of the timelines for voting.
3:12:26 PM
SENATOR KIEHL referred to line 13 of Amendment 12. He asked for
the legal impact of including the word "security" in addition to
the language "integrity and secrecy" that are already in the
statute. He asked if he could differentiate between "security"
and "integrity."
3:12:55 PM
MR. KLEIN answered that the court would look at the common
definition of the terms since they are not defined in statute.
He said that "security" could relate to the physical security of
an object and "integrity" could relate to the process. He
remarked that he was unsure how a court would interpret those
words.
CHAIR HOLLAND remarked that he could understand that integrity
would be the validity of the data.
3:13:46 PM
SENATOR SHOWER stated that the intent was to have it pertain to
ballot chain of custody. He acknowledged that there was an
integrity portion of the ballot but also security concerns
provided by the chain of custody.
3:14:07 PM
SENATOR KIEHL related his understanding that the point of chain
of custody was to defend the integrity of the ballots. He
suggested that completely eliminating the opportunity to return
a ballot electronically doesn't make it easy for voters to vote.
He emphasized that Alaskans were willing to sign an
acknowledgement that they were give up some rights to have a
secret ballot speaks to how valuable Alaskans find the privilege
to vote.
MR. OGAN stated that Section 30 would not eliminate electronic
voting. The existing statute read, "(a) The director shall adopt
regulations applicable to the delivery of absentee ballots by
electronic transmission in a state election. The new language in
Amendment 12 adds language requiring the division to adopt
regulations that "create a system to verify a voter's
identity..." This means that the division must have a system to
verify voter identify for those who vote electronically.
3:16:05 PM
SENATOR KIEHL related his understanding that page 1, lines 15-16
require the voter to return the absentee ballot by mail or in a
drop box, since it falls under the absentee voting in general
statutes rather than being returned electronically. He offered
his view that is in keeping with page 2, lines 5-6 of Amendment
12, which repeals the waiver of some of the voter's right to a
secret ballot. He wondered whether he was misunderstanding the
process.
3:16:27 PM
SENATOR SHOWER replied that voters can receive their ballot
electronically, so ballots can be requested electronically.
However, the voter must still mail the ballot. He recalled that
the best practices suggested eliminating fax voting. He
clarified that the ballot would still get printed and mailed in.
3:17:17 PM
MR. OGAN agreed that Amendment 12 would require a ballot
delivered by electronic transmission to be mailed in. He offered
his belief that the most significant vulnerability in the
election statutes was electronic voting, especially since the
division had a data breach. Amendment 12 would add another layer
of security even though it would make it more difficult to vote.
The Division of Election's director acknowledged that it was
plausible for someone to game the system. However, the director
did not believe that had occurred. He characterized Amendment 12
as a critical part of voter integrity.
3:18:59 PM
SENATOR SHOWER suggested that this would strike a balance
between being harder to cheat and easier to vote. He related
that he held discussions with the sponsor of a bill pertaining
to elections in the other body. He offered his view that
Amendment 12 was an acceptable compromise. He acknowledged that
the trend in elections was to move towards more by mail and
absentee ballot voting. The intent was to maintain the chain of
custody and ballot tracking to provide a forensic trail in the
event of allegations of voter identity theft.
3:20:13 PM
SENATOR MYERS related a friend's experience voting
electronically. The person requested their ballot
electronically, printed it, filled it out, scanned it, and sent
it via a fax by email program.
3:21:11 PM
SENATOR KIEHL stated that scenario highlighted the value
Alaskans place on electronic voting. He did not object to
eliminating the ability for voters to return a ballot by fax. He
related that constituents had called his office to report they
requested their ballot but did not receive it and it was
Election Day. When these voters cannot make it to the polls or
the US Post Office, sending their ballots electronically
eliminates the need for a postmark. Since these voters
relinquish their rights for a completely secret ballot, it
provides more opportunities to verify their identity and ensure
they voted only once. He maintained Alaskans see the value of
electronic voting, so he does not believe that it should be
eliminated.
3:22:38 PM
SENATOR HUGHES referred to page 14, line 19 of SB 39. Amendment
12 would change "shall" to "may not." The language would read:
An absentee ballot application submitted by electronic
transmission under this section may not include a
provision that permits a person to register to vote
under AS 15.07.070."
SENATOR SHOWER asked for the page and line reference in the
bill.
SENATOR HUGHES directed attention to page 14, line 19 of SB 39.
3:23:40 PM
MR. OGAN characterized it as a means to make it easy to vote.
3:24:03 PM
SENATOR HUGHES restated that Amendment 12 changes "shall" to
"may not."
MR. OGAN agreed. He offered his view that this is a policy call.
The legislature can decide if it is a good idea to allow people
to register to vote at the same time that they are voting.
3:24:30 PM
SENATOR SHOWER recalled discussions with the sponsor of the
House bill that it would be good to keep these functions
separate.
3:25:03 PM
At ease
3:26:14 PM
CHAIR HOLLAND reconvened the meeting.
3:26:19 PM
SENATOR SHOWER withdrew Amendment 12.
3:26:35 PM
SENATOR KIEHL moved to adopt Amendment 15, work order 32-
LS0204\D.42.
32-LS0204\D.42
Klein
4/14/22
AMENDMENT 15
OFFERED IN THE SENATE BY SENATOR KIEHL
TO: CSSB 39(JUD), Draft Version "D"
Page 23, lines 11 - 23:
Delete all material.
Renumber the following bill sections accordingly.
Page 26, line 16:
Delete "AS 15.56.040(a), as amended by sec. 47 of
this Act,"
Delete "sec. 48"
Insert "sec. 47"
Page 26, line 17:
Delete "sec. 49"
Insert "sec. 48"
Page 26, line 18:
Delete "sec. 50"
Insert "sec. 49"
Page 26, lines 18 - 19:
Delete "secs. 46 - 50"
Insert "secs. 46 - 49"
Page 26, line 27:
Delete "Section 58"
Insert "Section 57"
Page 26, line 28:
Delete "secs. 59 and 60"
Insert "secs. 58 and 59"
3:26:40 PM
CHAIR HOLLAND objected for discussion purposes.
3:26:43 PM
SENATOR KIEHL referred to page 23 of Version D. The amendment
would delete Section 47, which provides that voting or
attempting to vote in the name of a person who is cognitively
unable to express their vote would constitute the crime of voter
misconduct in the first degree.
SENATOR KIEHL stated that he could not find a definition of
"cognitively unable." He said he spoke to the Governor's Council
on Disabilities and Special Education. The council was concerned
about what the language meant and had concerns that it might
interfere with legal assistance to a special needs voter.
However, the language several lines up reads:
(a) A person commits the crime of voter misconduct in the
first degree if the person
(1) votes or attempts to vote in the name of another
person or in a name other than the person's own;
SENATOR KIEHL noted that this language would cover what
paragraph (5) would cover since voting in another person's name
is a crime whether the person was in a coma or cognitively
unable. He characterized Amendment 15 as a cleanup amendment.
3:27:58 PM
SENATOR SHOWER stated the intent of Amendment 15 was to address
a concern that parents might be filling out ballots for their
cognitively disabled children, or for people in a nursing home.
He offered his view that helping someone who may not understand
was different than voting in the person's name.
3:29:43 PM
SENATOR SHOWER restated his question.
3:31:04 PM
MR. FLYNN responded that he was unaware of a definition for
cognitively unable. He offered his view that other paragraphs
would capture the conduct. He stated that if someone was voting
for someone else it would fall under (a)(1). If someone was
voting for someone else and then voted in their own name, it
would be covered under (a)(2). Further, the special needs voting
statute indicates that a person can help a person who needs
assistance but the person cannot make a voting decision for
them.
3:31:54 PM
CHAIR HOLLAND withdrew his objection; he found no further
objection, and Amendment 15 was adopted.
3:32:22 PM
SENATOR KIEHL moved to adopt Amendment 16, work order 32-
LS0204\D.22.
32-LS0204\D.22
Klein
4/11/22
AMENDMENT 16
OFFERED IN THE SENATE BY SENATOR KIEHL
TO: CSSB 39(JUD), Draft Version "D"
Page 19, lines 17 - 22:
Delete all material.
Reletter the following subsections accordingly.
3:32:27 PM
CHAIR HOLLAND objected for discussion purposes.
3:32:31 PM
SENATOR KIEHL explained Amendment 16. He directed attention to
page 19, [Sec. 15.20.221.] Ballot tracking system. This would
delete language in Section 42, subsection (c) providing that the
online ballot tracking system must allow an election official
access to names and political affiliations of all people on the
voter registration list. He pointed out that since election
officials have that access already, they do not need it through
this online system. He stated that the ballot tracking system
was an excellent addition, but he felt uncomfortable tying it
electronically to the master voter list.
3:34:06 PM
SENATOR SHOWER said he might be okay with this language.
MR. OGAN related his understanding that it was important to have
the data to set up the ballot tracking system.
3:35:25 PM
MR. KLEIN related his understanding that the question was
whether subsection (c) needed to be tied to any other section.
He answered no. He did not think there was a requirement for
subsection (c) in law.
3:35:52 PM
MS. THOMPSON responded that the Division of Elections would not
need to have its registration system directly connected to the
ballot tracking system in order to have that happen.
3:36:19 PM
SENATOR SHOWER stated he was okay with Amendment 16.
MR. OGAN read, "The online system established under (a) of this
section must allow an election official access to the names and
political affiliations of all persons (1) named on the master
register ..." He said he did not see how that was problematic.
CHAIR HOLLAND asked whether he had any input on Amendment 16.
3:37:58 PM
MR. KLEIN said was unsure whether he heard a specific question
on Amendment 16.
3:38:29 PM
SENATOR SHOWER said based on what Mr. Ogan read, subsection
(c)(2) was necessary, but not subsection (c)(1), although he was
unsure.
3:38:47 PM
MR. OGAN stated that he had identified several concerns with the
amendment. He said the political affiliations may not be
relevant. He read [Sec 15.202.221(c):
(1) named on the master register, including those
persons whose voter registrations are inactivated
under AS 15.07.130(b); and
(2) whose names must be placed on the official
registration list under AS 15.07.070(c) and (d).
MR. OGAN referred to AS 15.07.070(c) which read, "The names of
persons submitting completed registration forms by mail that are
postmarked at least 30 days before the next election..." and AS
15.07.070(d), which read, "Qualified voters may register in
person before a registration official ..." He offered his view
that the provisions in this section were housekeeping.
3:39:31 PM
SENATOR KIEHL said members agreed that paragraphs (c)(1) and (2)
relate to the entirety of the existing master roll. He asked why
Amendment 16 would link those provisions to the ballot tracking
system. He maintained that the Division of Elections had access
to all of this information. He submitted that the state would
not build its own internal tracking system but would contract to
do so.
3:40:40 PM
SENATOR SHOWER responded that the intent was to ensure that the
Division of Elections has what it needs to establish the online
ballot tracking and ballot chain-of-custody system. He expressed
concern that without subsection (c), paragraphs (1) and (2),
especially paragraph 2, whether something would limit the
division from creating the system with regulation and policy.
MR. KLEIN answered that he does not know of anything the
Division of Elections would not already have in order to create
the online system. However, he deferred to the division to as to
whether the division has enough to create the online system
without accessing the information in subsection (c)(1) and (2).
He opined that the division has access to this information.
3:42:09 PM
MS. THOMPSON said she was unclear about the question.
3:42:20 PM
SENATOR SHOWER stated that he wanted to be sure it would not
harm the division if the committee were to delete paragraphs
(c)(1) and (2) on page 19 of Version D.
MS. THOMPSON responded no; that it would not harm the division.
CHAIR HOLLAND removed his objection; he found no further
objection, and Amendment 16 was adopted.
3:43:31 PM
SENATOR KIEHL moved to adopt Amendment 17, work order 32-
LS0204\D.23.
32-LS0204\D.23
Nauman/Klein
4/11/22
AMENDMENT 17
OFFERED IN THE SENATE BY SENATOR KIEHL
TO: CSSB 39(JUD), Draft Version "D"
Page 20, line 3:
Delete "two"
Insert "five
3:43:38 PM
CHAIR HOLLAND objected for discussion purposes.
3:44:10 PM
SENATOR KIEHL explained that Amendment 17 would extend the time
to cure a deficient ballot envelope from two to five days after
the election. Currently, if the Division of Elections receives a
ballot two days after Election Day and it is deficient, perhaps
missing a signature or the identifier is missing a number, the
voter can cure it. However, the state continues to accept
ballots postmarked timely much later than that. Again, the
ballot must be postmarked by Election Day, but if the ballot was
received timely, it would allow the voter to cure it if a
problem existed.
3:45:15 PM
SENATOR SHOWER expressed concern with absentee and mail-in
voting related to the timeline. He related that he modeled SB 39
on Colorado's best practices. He stated the intent was to get
the election results sooner. He wondered how this might impact
other parts of the bill.
MR. OGAN responded that with the ballot tracking system, the
timing will be better, and voters will get notified via a text
to their cellphone. He stated that it will make it easier to
vote, so he advised members that he thought five days would be
fine.
3:47:09 PM
SENATOR KIEHL directed attention to lines 18 and 19 of Amendment
17. The voter still must submit their cured form by day 14 post-
election. Amendment 17 would not impact it or slow down the
process.
3:47:37 PM
SENATOR MYERS related his understanding that the primary
election allows 10 or 11 days after the election to receive the
absentee ballots, and the general election allows three weeks.
He did not think that increasing the timeframe to five days to
cure ballots would slow down the process.
3:48:09 PM
SENATOR SHOWER stated he was okay with Amendment 17.
3:48:33 PM
CHAIR HOLLAND removed his objection; he found no further
objection, and Amendment 17 was adopted.
3:48:58 PM
SENATOR SHOWER moved to adopt Amendment 18, work order 32-
LS0204\D.2.
32-LS0204\D.2
Klein
4/12/22
AMENDMENT 18
OFFERED IN THE SENATE BY SENATOR SHOWER
TO: CSSB 39(JUD), Draft Version "D"
Page 21, following line 1:
Insert new bill sections to read:
"* Sec. 43. AS 15.20.540 is amended to read:
Sec. 15.20.540. Grounds for election contest. A
defeated candidate or 10 qualified voters may contest the
nomination or election of any person or the approval or
rejection of any question or proposition on [UPON] one or
more of the following grounds:
(1) malconduct, fraud, or corruption on the part
of an election official sufficient to change the result of
the election;
(2) when the person certified as elected or
nominated is not qualified as required by law;
(3) any corrupt practice as defined by law
sufficient to change the results of the election;
(4) when the division changes the location of a
precinct polling place within 15 days before an election
and
(A) the division does not send written
notice of the change to each registered voter in the
precinct; and
(B) the location change was sufficient to
change the results of the election.
* Sec. 44. AS 15.20.560 is amended to read:
Sec. 15.20.560. Judgment of court. The judge shall
pronounce judgment on which candidate was elected or
nominated and whether the question or proposition was
accepted or rejected. The director shall issue a new
election certificate to correctly reflect the judgment of
the court. If the court decides that the election resulted
in a tie vote, the director shall immediately proceed to
determine the election by lot as is provided by law. If the
court decides that no candidate was duly elected or
nominated, the judgment shall be that the contested
election be set aside. If the court finds that the division
did not send written notice of a polling place change to
each registered voter in the precinct and that the polling
place location change was sufficient to change the results
of the election, the court shall enter a judgment that the
contested election be set aside. The provisions of this
section and AS 15.20.540 and 15.20.550 are not intended to
limit or interfere with the power of the legislature to
judge the election and qualifications of its members."
Renumber the following bill sections accordingly.
Page 26, line 15:
Delete "sec. 46"
Insert "sec. 48"
Page 26, line 16:
Delete "sec. 47"
Insert "sec. 49"
Delete "sec. 48"
Insert "sec. 50"
Page 26, line 17:
Delete "sec. 49"
Insert "sec. 51"
Page 26, line 18:
Delete "sec. 50"
Insert "sec. 52"
Page 26, lines 18 - 19:
Delete "secs. 46 - 50"
Insert "secs. 48 - 52"
Page 26, line 26:
Delete "Section 45"
Insert "Section 47"
Page 26, line 27:
Delete "Section 58"
Insert "Section 60"
Page 26, line 28:
Delete "secs. 59 and 60"
Insert "secs. 61 and 62"
3:48:59 PM
CHAIR HOLLAND objected for discussion purposes.
3:49:10 PM
MR. OGAN explained Amendment 18 would require a written notice
be sent to voters within 15 days of an election to advise them
of any change in the polling place. He said if the Division of
Elections failed to do so, and the location change was
sufficient to change the results of the election, it could
result in a contested election.
MR. OGAN directed attention to subparagraphs (A) and (B). He
said a defeated candidate or 10 voters can challenge the outcome
of an election if (A) the division changes the location of a
precinct polling place within 15 days of an election without
written notice to all registered voters in the precinct; and (B)
the location change was sufficient to change the outcome of the
election.
MR. OGAN said a judge could set aside the results if these
conditions were met. Thus, it could result in a contested
election.
3:50:38 PM
SENATOR SHOWER stated that Amendment 18 was in response to a
situation in which a former legislator went to court because the
division did not adequately notify voters that their polling
place had changed.
3:51:58 PM
SENATOR KIEHL asked how someone would determine if the location
change was sufficient to change the results of an election per
AS 15.20.540(4)(B).
MR. OGAN answered that Amendment 18 would provide discretion to
the courts to make that determination. He stated that it seemed
reasonable to allow people to contest the election if voters are
not given sufficient information on their precinct polling place
location.
CHAIR HOLLAND understood Senator Kiehl's point on the standard
that would be applied.
3:53:48 PM
SENATOR SHOWER stated that the specific circumstances would need
to be considered. Amendment 18 would provide a trigger so the
courts could make a determination.
3:54:53 PM
SENATOR KIEHL related his own experience with polling places. He
said voters were confused even when the notice was made far in
advance of 15 days prior to an election. He said he didn't have
a sense how a judge would make that determination, or the basis
for a trial. He was unsure about establishing a trigger to allow
judges to make election decisions.
3:55:54 PM
ED KING, Staff, Senator Roger Holland, Alaska State Legislature,
Juneau, Alaska, directed attention to existing law [on page 1,
lines 8-9] of Amendment 18, to AS 15.20.540(1), which read "...
sufficient to change the result of the election;".
MR. KING pointed out that this language also appears in existing
law [on lines 12-13], paragraph (3), which read, "any corrupt
practice as defined by law sufficient to change the result of
the election;."
MR. KING stated that Amendment 18 would add paragraph (4), which
would direct the courts to make the same type of finding when
the grounds exist.
3:56:20 PM
MR. KING referred to [page 1, lines 20-23 to] AS 15.20.560,
Judgement of court. He read:
The judge shall pronounce judgment on which candidate
was elected or nominated and whether the question or
proposition was accepted or rejected.
MR. KING stated that this language would direct the court to
make a ruling on those grounds.
3:56:40 PM
MR. KING suggested that the changes on page 2 of Amendment 18,
adding language within AS 15.20.560 may be worthy of further
consideration. He deferred to Nancy Meade to speak to that
issue.
3:57:19 PM
NANCY MEADE, General Counsel, Office of the Administrative
Director, Alaska Court System, Anchorage, Alaska, agreed with
Mr. King that the wording "that the polling place location
change was sufficient to change the results of the election" was
in existing law without standards about what evidence should be
presented or other expansion on that concept. So it may be that
if the court can deal with it in other cases, it could deal with
it in this case with respect to the new language.
MS. MEADE referred to the language on page 2, [line 4 of
Amendment 18], which read, "If the court finds that ..." She
wondered if that language was necessary since there are not
provisions in AS 15.25.60 for the court's findings under any of
the other grounds for election contest. In other words, this
section for judgement of court doesn't go through specific
findings that the court would make. It simply states, as Mr.
King said, that the judge would pronounce judgement. She did not
think it would be necessary to add this one provision on page 2,
lines 4-8 because it would imply that the findings wouldn't be
necessary or would lead to a different result.
3:59:16 PM
CHAIR HOLLAND moved to adopt Conceptual Amendment 1 to Amendment
18, which read:
CONCEPTUAL AMENDMENT 1 TO AMENDMENT 18
OFFERED IN THE SENATE
TO: Amendment 32-LS0204\D.2
Page 1, lines 20 through page 2,lines 10:
DELETE all material.
4:00:04 PM
SENATOR SHOWER objected for discussion purposes.
CHAIR HOLLAND restated Conceptual Amendment 1 to Amendment 18:
OFFERED IN THE SENATE
TO: Amendment 32-LS0204\D.2
Page 1, lines 20 through page 2, lines 10:
DELETE all material.
4:00:20 PM
SENATOR SHOWER removed his objection.
CHAIR HOLLAND found no further objection; and Conceptual
Amendment 1 to Amendment 18 was adopted.
CHAIR HOLLAND stated that Amendment 18, as amended, was before
the committee. He recapped that Section 44 was removed from
Amendment 18.
4:00:46 PM
SENATOR KIEHL related his understanding that Amendment 18 would
provide a minimum of 15 days' notice. He surmised that members
could understand what Mr. King's description of the corrupt
practices meant, such as 30 votes were bought and the margin was
30, or 200 ballots were stolen and the margin was 90. However,
he was unsure what kind of statistical modeling or computerized
statistics of historical voter turnout could be applied that
could determine the effects of moving a polling place. He asked
whether there was a minimum notice in the statutes regarding
moving polling places.
MS. THOMPSON explained that AS 15.10.090, related to
notification when a precinct location was changing. That
requires the division to provide a written notice to each
affected voter whenever possible. The division must also provide
notice of the change once by publication in the local newspaper
of general circulation or print a written notice in three
conspicuous places as close to the precinct as possible, post on
the division's website, and providing notification to
appropriate municipal clerks, community councils, title groups,
Native villages, and Village Regional Corporations in the area.
4:02:55 PM
CHAIR HOLLAND withdrew his objection.
SENATOR Kiehl objected.
4:03:12 PM
A roll call vote was taken. Senators Shower, Hughes, Myers, and
Holland voted in favor of Amendment 18, as amended, and Senator
Kiehl voted against it. Therefore, Amendment 18, as amended, was
adopted by a 4:1 vote.
CHAIR HOLLAND that Amendment 18, as amended, was adopted on a
vote of 4 yeas and 1 nay.
4:03:52 PM
At ease
4:05:52 PM
CHAIR HOLLAND reconvened the meeting.
4:06:19 PM
At ease.
4:16:14 PM
CHAIR HOLLAND reconvened the meeting.
4:16:48 PM
SENATOR KIEHL moved to adopt Amendment 19, work order 32-
LS0204\D.24.
32-LS0204\D.24
Klein
4/11/22
AMENDMENT 19
OFFERED IN THE SENATE BY SENATOR KIEHL
TO: CSSB 39(JUD), Draft Version "D"
Page 21, lines 3 - 4:
Delete ", other than a general, statewide, or
federal election,"
4:16:47 PM
CHAIR HOLLAND objected for discussion purposes.
4:16:56 PM
SENATOR KIEHL explained that Amendment 19 would allow the
Division of Elections to conduct an election only by mail if the
conditions in Section 43 are met, for general, statewide, and
federal elections. He stated that the director could conduct an
election by mail in a small community covered by a disaster in
AS 15.20.800(a)(1)-(4), and the director would maintain the
ability to hold an election by mail other than when the
statewide election, party primary, or municipal election is
held. The director could still hold a statewide special election
by mail. For example, with the passing of US Congressman Young,
the division will hold a special statewide primary. Otherwise,
the division would maintain the restrictions in the bill.
4:17:53 PM
SENATOR KIEHL stated that as the bill is currently drafted, the
only election that would apply for the director to hold an
election by mail would be for a special REAA election.
SENATOR SHOWER said he did not see a problem with stripping this
language from the bill.
4:19:33 PM
MR. OGAN related his understanding that the state would not
allow blanket elections by mail for a general, statewide, or
federal election absent disaster or disease.
4:20:23 PM
SENATOR SHOWER stated that the only request from the Division of
Elections Director was to retain (A)(i), which read:
(A) in an unorganized community with a population of
750 or less if the director determines that
facilitating an organized in-person voting in the
community is unreasonable;
(i) an incident described in AS 26.23.900(2)(A)
SENATOR SHOWER suggested that to tighten it down further, the
committee could strip out paragraphs (2) and (3).
4:21:07 PM
At ease
4:21:50 PM
CHAIR HOLLAND reconvened the meeting and removed his objection;
he found no further objection, and Amendment 19 was adopted.
4:22:19 PM
SENATOR MYERS said he would not offer Amendment 20, work order
32-LS0204\D.37.
4:22:51 PM
SENATOR SHOWER moved to adopt Amendment 21, work order 32-
LS0204\D.11.
32-LS0204\D.11
Klein
4/11/22
AMENDMENT 21
OFFERED IN THE SENATE BY SENATOR SHOWER
TO: CSSB 39(JUD), Draft Version "D"
Page 21, lines 8 - 11:
Delete all material.
Renumber the following paragraphs accordingly.
4:22:54 PM
CHAIR HOLLAND objected for discussion purposes.
4:23:00 PM
MR. OGAN explained that Amendment 21 would delete paragraphs (2)
and (3) that would allow elections by mail for a second class
city with a population of less than 1,000 upon the city's
request, and a second class borough with a population of less
than 3,000, upon the borough's request. He stated that these
communities have clerks and staff and are large enough to handle
their elections. This would leave elections by mail in place for
communities with a population of 750 or less since they
routinely have difficulty finding volunteers for polling places.
4:23:59 PM
CHAIR HOLLAND removed his objection; he found no further
objection, and Amendment 21 was adopted.
4:24:21 PM
SENATOR SHOWER moved to adopt Amendment 22, work order 32-
LS0204\D.4.
32-LS0204\D.4
Klein
4/12/22
AMENDMENT 22
OFFERED IN THE SENATE BY SENATOR SHOWER
TO: CSSB 39(JUD), Draft
Version "D"
Page 21, following line 31:
Insert a new subsection to read:
"(f) The division shall provide a technical subject
matter expert appointed under AS 24.20.060(10) full
supervised access to all election data, algorithms,
software, and equipment, including precinct
tabulators, storage devices, voting machines, and vote
tally systems."
Page 25, following line 28:
Insert a new bill section to read:
"* Sec. 54. AS 24.20.060 is amended to read:
Sec. 24.20.060. Powers. The legislative council has
the power
(1) to organize and adopt rules for the conduct of
its business;
(2) to hold public hearings, administer oaths, issue
subpoenas, compel the attendance of witnesses and
production of papers, books, accounts, documents, and
testimony, and to have the deposition of witnesses
taken in a manner prescribed by court rule or law for
taking depositions in civil actions when consistent
with the powers and duties assigned to the council by
AS 24.20.010 - 24.20.140;
(3) to call upon all state officials, agencies, and
institutions to give full cooperation to the council
and its executive director by collecting and
furnishing information, conducting studies, and making
recommendations;
(4) in addition to providing the administrative
services required for the operation of the legislative
branch,
(A) to provide the technical staff assistance in
research, reporting, drafting, and counseling
requested by standing, interim, and special committees
and spot research and drafting services for individual
members in conformity with law and legislative rules;
(B) to conduct a continuing program for the revision
and publication of the acts of the legislature;
(C) to execute a program for the oversight of the
administration and construction of laws by state
agencies and the courts through regulations, opinions,
and rulings;
(D) to operate and maintain the state legislative
reference library;
(E) to do all things necessary to carry out
legislative directives and law, and the duties set out
in the uniform rules of the legislature;
(F) to sue in the name of the legislature during the
interim between sessions if authorized by majority
vote of the full membership of the council;
(5) to exercise control and direction over all
legislative space, supplies, and equipment and
permanent legislative help between legislative
sessions; the exercise of control over legislative
space is subject to AS 36.30.080(c) if the exercise
involves the rent or lease of facilities, and to
AS 36.30.085 if the exercise involves the acquisition
of facilities by lease-purchase or lease-financing
agreement;
(6) to produce, publish, distribute, and to contract
for the printing of reports, memoranda, and other
materials it finds necessary to the accomplishment of
its work;
(7) to take appropriate action for the preconvening
and post-session work of each legislative session
including the employment one week in advance of each
session of not more than 10 temporary legislative
employees; the continuing employment of the temporary
legislative employees is subject to legislative
approval when the session convenes;
(8) to establish a legislative internship program on
a cooperative basis with the University of Alaska that
will provide for the assignment of interns to standing
committees of each house of the legislature during
regular sessions of the legislature; [AND]
(9) to establish reasonable fees for services and
materials provided by the Legislative Affairs Agency
to entities outside of the legislative branch of state
government and charges for collecting the fees; all
fees and charges collected under this paragraph shall
be deposited into the general fund; and
(10) contract with technical subject matter experts
to conduct full forensic audits of election data,
algorithms, software, and equipment, including
precinct tabulators, storage devices, voting machines,
and vote tally systems."
Renumber the following bill sections accordingly.
Page 26, line 27:
Delete "Section 58"
Insert "Section 59"
Page 26, line 28:
Delete "secs. 59 and 60"
Insert "secs. 60 and 61"
4:24:24 PM
CHAIR HOLLAND objected for discussion purposes.
SENATOR SHOWER deferred to Mr. Ogan.
4:24:42 PM
MR. OGAN referred to page 3, line 6 of Amendment 22. He
explained that Amendment 22 would expand the Legislative
Council's ability to contract with a technical subject matter
expert to conduct a full forensic audit of election data and
equipment. The division must provide a technical subject matter
expert appointed by the legislative council for full supervised
access to all election data and systems.
SENATOR KIEHL stated that he had previously observed Legislative
Council meetings. He was unsure how qualified members were to
pick subject matter experts since the council sometimes makes
political decisions. He wondered how to ensure that the subject
matter experts share the information with legislators. The
typical path has been for consultants to answer to the council's
chair, and the information is made available at the chair's
discretion.
4:27:22 PM
SENATOR SHOWER suggested that a technical change might be needed
to correct page 3, line 6, which states "experts". The intent
was to have a "subject matter expert" but not a group of
experts. He said he encountered significant difficulty obtaining
information from the agency or the executive branch, so he
crafted the language to allow Legislative Council to select a
subject matter expert. It would also avoid the issue of
requesting a subject matter expert from legislative leadership
and the funding source to do so.
4:29:24 PM
CHAIR HOLLAND pointed out that the language on page 1, line 3
relates to appointing a subject matter expert to address a
matter specifically, and the language on page 3, line 6 will
empower the legislative council to contract with subject matter
experts.
SENATOR SHOWER stated the intent was to provide a subject matter
expert, but he was okay with leaving subject matter experts on
page 3, line 6.
4:30:41 PM
MR. OGAN offered his view that the language in Amendment 22 was
fine because Legislative Council could contract with an expert.
He suggested that the council contract with a firm that would
select one person as the subject matter expert.
4:31:30 PM
CHAIR HOLLAND removed his objection.
4:31:35 PM
SENATOR KIEHL objected.
4:31:44 PM
A roll call vote was taken. Senators Shower, Hughes, Myers, and
Holland voted in favor of Amendment 22, and Senator Kiehl voted
against it. Therefore, Amendment 22 was adopted on a 4:1 vote.
CHAIR HOLLAND stated that Amendment 22 was adopted on a vote of
4 yeas and 1 nay.
4:32:44 PM
SENATOR KIEHL moved to adopt Amendment 23, work order 32-
LS0204\D.25.
32-LS0204\D.25
Nauman/Klein
4/11/22
AMENDMENT 23
OFFERED IN THE SENATE BY SENATOR KIEHL
TO: CSSB 39(JUD), Draft Version "D"
Page 22, lines 1 - 13:
Delete all material.
Renumber the following bill sections accordingly.
Page 26, line 15:
Delete "sec. 46"
Insert "sec. 45"
Page 26, line 16:
Delete "sec. 47"
Insert "sec. 46"
Delete "sec. 48"
Insert "sec. 47"
Page 26, line 17:
Delete "sec. 49"
Insert "sec. 48"
Page 26, line 18:
Delete "sec. 50"
Insert "sec. 49"
Page 26, lines 18 - 19:
Delete "secs. 46 - 50"
Insert "secs. 45 - 49"
Page 26, line 26:
Delete all material.
Renumber the following bill sections accordingly.
Page 26, line 27:
Delete "Section 58"
Insert "Section 57"
Page 26, line 28:
Delete "secs. 59 and 60"
Insert "sec. 58"
4:32:49 PM
CHAIR HOLLAND objected for discussion purposes.
4:32:56 PM
SENATOR KIEHL explained that Amendment 23 would delete the open-
source technology requirements. Although he did not object to
open-source software technology, he had concerns about sole
sourcing it. He related his understanding that currently, only
one vendor could provide the open-source software, but others
were in the process of becoming federally qualified. He said he
did not believe it was the sponsor's intent to sole source, but
the bill narrows it to one or two vendors. The committee
previously discussed the sponsor's view that open-source
software would give Alaskans more confidence in the tabulators
and the vote count. He disagreed with that viewpoint.
SENATOR KIEHL opined that what gives Alaskans confidence in
elections are the guarantees in existing law. Alaskans vote on
paper ballots and these ballots are retained and available for a
recount. Everyone can watch the recounts. When Alaskans with
special needs must use a voting machine, the division retains a
voter-verified paper trail, which is available for a public
recount. He stated that open-source software doesn't necessarily
mean it is the best software. He wondered how Alaskans would
gain more confidence in the election results if the voting
machines encountered glitches and had been restarted several
times on Election Day. He maintained his view that what
ultimately protects the integrity of the election is the ability
to recount every ballot with everyone watching. No matter what,
someone will likely make up a story about any open source or
proprietary software vendor if they don't like the election
results. Alaskans need the facts and the reality of the paper
ballots. Amendment 23 will not stop the Division of Elections
from purchasing open-source software if it is the best product,
but it deletes the mandate.
4:35:59 PM
SENATOR SHOWER disagreed. He offered his view that ranked-choice
voting will likely exacerbate voter confidence since the
machines will tabulate the ranking. He surmised that it would
take a forensic audit to extract the data. He characterized it
as a significant challenge. He stated that any company,
including Dominion, which Alaska currently uses, could allow
access to their software, but they have not done so thus far. He
acknowledged that many companies have proprietary software. He
emphasized that voting machines vendors must be federally
qualified.
4:38:49 PM
MR. OGAN stated that the Election Assistance Commission would
certify the voting machines. Currently, there are three
potential vendors. He stated that Alaska's current vendor,
Dominion, could also decide to provide open-sourced software
technology. He said voters lack confidence in Alaska's voting
system, which undermines the cornerstone of government. He
characterized Amendment 23 as gutting the bill. He noted that
the open-source technology means that the vendor cannot connect
to the internet, which would limit hackers from infiltrating the
system. He characterized it as a very secure system. While other
states do not use open-source technology statewide, Alaska is
one of the few states that conduct statewide elections since
most states have counties. He reported that many counties had
used this technology successfully. He suggested that if people
could verify the codes before the election and the day after the
election, it would end concern about the tabulators. He
highlighted that it takes a court order to obtain data when the
machines are proprietary, which requires reasonable doubt. It's
not possible to get the evidence without the data.
4:42:02 PM
SENATOR SHOWER stated that the trend nationwide is to use open-
source technology. He offered his view that Alaska could be a
model for the nation if it used open-source technology to
provide 100 percent transparency in the voting process.
4:43:41 PM
SENATOR HUGHES noted that a future amendment is coming that
addresses Senator Kiehl's concern that only one company could
provide open-source software. She said she will oppose Amendment
23.
4:44:25 PM
SENATOR KIEHL stated that currently, there are no federally-
qualified vendors for open-source software technology. He
acknowledged that several vendors are in the process of getting
qualified. He said he likes open-source software but objects to
sole sourcing. He maintained that voters whose candidates lose
would blame the new machines, the software, or the vendor who
installs them. He maintained that the current election system
retains the paper ballots and has a public recount process so
people can watch every single vote be counted.
4:45:54 PM
CHAIR HOLLAND maintained his objection.
4:45:58 PM
A roll call vote was taken. Senator Kiehl voted in favor of
Amendment 23, and Senators Shower, Hughes, Myers, and Holland
voted against it. Therefore, Amendment 23 failed on a 1:4 vote.
CHAIR HOLLAND stated that Amendment 23 failed on a vote of 1 yea
and 4 nays.
4:46:48 PM
SENATOR SHOWER moved to adopt Amendment 24, work order 32-
LS0204\D.12.
32-LS0204\D.12
Klein
4/12/22
AMENDMENT 24
OFFERED IN THE SENATE BY SENATOR SHOWER
TO: CSSB 39(JUD), Draft Version "D"
Page 22, line 9:
Delete "has open-source software"
Insert "uses only open-source or unmodified
commercially available software or firmware"
Page 22, lines 10 - 11:
Delete "software technology"
Page 22, line 11, following "software":
Insert "or firmware"
4:46:50 PM
CHAIR HOLLAND objected for discussion purposes.
4:46:54 PM
MR. OGAN explained Amendment 24 would change "has open-source
software technology" to "uses only open-source or unmodified
commercially available software or firmware." He characterized
it as a technical amendment. It clarifies that only open-source
or unmodified commercially-available software or firmware would
be used. He explained that firmware is specific to an
application.
4:47:51 PM
CHAIR HOLLAND asked if any unmodified commercially-available
software that was not considered open-source software could
satisfy the requirement.
MR. OGAN answered to the best of his knowledge, yes. He said he
believes that commercially-available software is considered
open-sourced because anyone can buy it.
4:48:50 PM
SENATOR KIEHL pointed out that the state purchased software,
voting machines, and tally systems. He asked whether the state
could use this equipment so long as it does not modify it, even
though it is not open-source software.
MR. OGAN stated that the intent was not to use proprietary
software because it does not provide transparency. He was unsure
whether Dominion would meet this requirement because it is
proprietary software, and people cannot purchase it off the
shelf.
4:50:01 PM
SENATOR SHOWER stated his intent was for the division to "use"
open-source software rather than just having it. He suggested
that he would be comfortable removing the second part of
Amendment 24.
4:50:43 PM
SENATOR HUGHES stated that open-source means it is available to
the public. She wondered whether the public could obtain it for
free or if they must pay for it. She offered her view that the
public cannot purchase Dominion software. Thus, it lacks checks
and balances. She suggested that the language in Amendment 24
should say "available to the public." She related her
understanding that the sponsor wanted to ensure that the public
could double-check the voting by accessing it via purchased
open-source software. She wondered if it was only available to
the government.
MS. THOMPSON responded that she was unfamiliar with Dominion's
sales policies or who could purchase their software.
4:52:22 PM
SENATOR SHOWER recalled testimony by the Division of Elections'
director that it might be possible to purchase Dominion software
but noted that it is proprietary software. He surmised that
proprietary meant that Dominion would not share its data, but he
indicated that he did not receive a solid answer from them.
4:53:08 PM
SENATOR KIEHL said he was uncomfortable writing out a specific
corporation from participating. He related his understanding
that the purpose of Amendment 24 was to allow people to use a
laptop with firmware to run the software. He offered his view
that this language might need a tweak in future committees.
4:53:49 PM
At ease
4:54:25 PM
CHAIR HOLLAND reconvened the meeting.
4:54:34 PM
SENATOR HUGHES stated the committee had discussed whether
certain software was available to the public. She understood
Senator Kiehl's concern that the committee was "picking on"
Dominion; however, that is the company Alaska currently uses.
She read from dominionvoting.com. "Dominion is a private company
that provides election technology to government customers..."
She said she did not believe that the public has access to
Dominion's software. She offered her view that Amendment 24
would need to include language that the open-source or
commercially available software or firmware must be available to
the public.
4:55:17 PM
CHAIR HOLLAND stated he would like clarity on whether unmodified
commercially available software is the same as open-source
software. He offered his view that commercially available
software could consist of "black box" equipment that would allow
someone to put something in and something comes out, which is
different from open-source software that allows a person access
to the code and process.
SENATOR SHOWER asked the record to reflect that he had no
interest in a specific company. He stated that the intent was to
provide transparency via the technology and the voting process.
4:56:05 PM
SENATOR SHOWER withdrew Amendment 24. He stated his intention to
bring it up at a later time.
4:56:34 PM
SENATOR KIEHL said he would not offer Amendment 25, work order
32-LS0204\D.26. He stated that the state informed municipalities
or political subdivisions that it would not allow the use of the
state's election equipment. Since then, every municipality in
the state has gone to significant expense to duplicate the
election equipment.
4:57:41 PM
SENATOR SHOWER moved to adopt Amendment 26, work order 32-
LS0204\D.8.
32-LS0204\D.8
Klein
4/12/22
AMENDMENT 26
OFFERED IN THE SENATE BY SENATOR SHOWER
TO: CSSB 39(JUD), Draft Version "D"
Page 1, line 1, following "of":
Insert "unlawful interference with voting, voter
misconduct,"
Page 23, following line 10:
Insert new bill sections to read:
"* Sec. 47. AS 15.56.035(a) is amended to read:
(a) A person commits the crime of unlawful
interference with voting in the second degree if the
person
(1) has an official ballot in possession
outside of the voting room unless the person is an
election official or other person authorized by law or
local ordinance, or by the director or chief municipal
elections official in a local election;
(2) makes, or knowingly has in possession,
a counterfeit of an official election ballot;
(3) knowingly solicits or encourages,
directly or indirectly, a registered voter who is no
longer qualified to vote under AS 15.05.010, to vote
in an election;
(4) as a registration official
(A) knowingly refuses to register a person
who is entitled to register under AS 15.07.030; or
(B) accepts a fee from an applicant
applying for registration;
(5) violates AS 15.20.081(a) by knowingly
supplying or encouraging or assisting another person
to supply to a voter an absentee ballot application
form with a political party or group affiliation
indicated if the voter is not already registered as
affiliated with that political party or group;
(6) knowingly designs, marks, or encourages
or assists another person to design or mark an
absentee ballot application in a manner that suggests
choice of one ballot over another as prohibited by
AS 15.20.081(a); [OR]
(7) knowingly submits or encourages or
assists another person to submit an absentee ballot
application to an intermediary who could control or
delay the submission of the application to the
division of elections or who could gather data from
the application form as prohibited by AS 15.20.081(a);
or
(8) pays or offers to pay another person to
collect a voter's ballot.
* Sec. 48. AS 15.56.035 is amended by adding a new
subsection to read:
(d) In this section, "collect" means gaining
possession or control of a ballot."
Renumber the following bill sections accordingly.
Page 26, line 15, following "Act,":
Insert "AS 15.56.035(a), as amended by sec. 47 of
this Act,"
Page 26, line 16:
Delete "sec. 47"
Insert "sec. 49"
Delete "sec. 48"
Insert "sec. 50"
Page 26, line 17:
Delete "sec. 49"
Insert "sec. 51"
Page 26, line 18:
Delete "sec. 50"
Insert "sec. 52"
Page 26, lines 18 - 19:
Delete "secs. 46 - 50"
Insert "secs. 46, 47, and 49 - 52"
Page 26, line 27:
Delete "Section 58"
Insert "Section 60"
Page 26, line 28:
Delete "secs. 59 and 60"
Insert "secs. 61 and 62"
4:57:43 PM
CHAIR HOLLAND objected for discussion purposes.
4:57:54 PM
MR. OGAN explained that Amendment 26 would make it a crime to
pay or offer to pay another person to harvest ballots by
collecting the voter's ballot.
4:58:08 PM
SENATOR KIEHL stated that he had heard the term "ballot
harvesting" but discovered that it was actually someone
collecting ballots. He pointed out that it is allowable to
assist homebound voters or special needs voters. In some cases,
it involves bringing the ballot to the person, allowing them to
vote, and returning their ballot. He related his understanding
the Amendment 26 does not criminalize volunteering; however, he
wondered if a staff member of an organization or non-profit that
helped voters with physical or developmental disabilities would
be subject to criminal penalties.
4:58:59 PM
SENATOR SHOWER stated the intent of Amendment 26 was to avoid
people collecting ballots from large numbers of people. He
offered his view that Amendment 26 was a compromise. He stated
the intent of Amendment 26 was to prevent organizations from
paying others to collect ballots. He said he was open to
amending the language. However, the intent of Amendment 26 would
not prevent a grandson from collecting grandma and grandpa's
ballots and delivering them or allowing someone to collect a
senior's ballot from the senior center.
5:00:51 PM
SENATOR KIEHL envisioned people helping special needs voters,
seniors, hospital patients, or home-bound voters by delivering
ballots on Election Day. He didn't recall ever differentiating
between volunteers or paid campaign workers helping voters. He
expressed concern that it would criminalize paid staff from
helping.
MR. OGAN answered that paid staff might be subject to
prosecution. He suggested that non-profits could recruit
volunteers. He said one of his friends worked on a gubernatorial
campaign that brought in many people from the Lower 48 to
harvest ballots. He expressed concern that these volunteers
might selectively destroy ballots based on the voters' political
affiliation.
5:03:32 PM
MR. FLYNN offered his view that while the definition of collect
was expansive, it appeared that anyone who was paid to collect
ballots could be subject to the crime of unlawful interference
with voting in the second degree. He suggested it might apply to
poll workers or election staff, so the committee may wish to
consider whether or not to criminalize this activity.
5:04:20 PM
SENATOR SHOWER expressed his willingness to further discuss with
the sponsor of the election bill in the House and with the
Department of Law. He suggested the language could be tweaked to
exclude poll workers or election staff.
5:05:07 PM
SENATOR HUGHES related her understanding that other states do
not allow ballot harvesting. She agreed it was concerning that
it might affect the Division of Elections.
5:05:38 PM
SENATOR SHOWER withdrew Amendment 26.
CHAIR HOLLAND held SB 39 in committee.