Legislature(2001 - 2002)
04/27/2001 01:48 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 193-MODIFIED BLANKET PRIMARY ELECTION CHAIRMAN TAYLOR announced HB 193 to be up for consideration. Number 1163 MS. SARAH FELIX, Assistant Attorney General, said she was also testifying for the Division of Elections. She explained: This bill is necessary because the Alaska statutes currently provide for a blanket primary in which all the voters may vote for any candidate regardless of party affiliation. The United State Supreme Court last summer issued a decision in the case called California Democratic Party v. Jones that basically said that a state could not force a political party to participate in a blanket primary against that partys' will. The court found that that violated the first amendment rights of free association of the political parties. So, the Jones decision affects all states that had a blanket primary system and that's California, Washington and Alaska. So the Alaska statutes need to be amended because of California Democratic Party v. Jones. In our state, we did have objections from a political party to the blanket primary under the Jones case and, therefore, the State of Alaska could not force that party to participate in the blanket primary. When we faced those objections last summer at the primary election, there was insufficient time between when the Jones decision was issued on June 26, 2000 and the primary election, which was being held in August 2000. There was insufficient time during that brief window for the legislature to enact new primary election legislation. Obviously, you weren't in session so the Lieutenant Governor issued emergency regulations for conduct of the primary election for that political party. Those regulations have now expired by operation of law and Alaska needs a new set of statutes, a new law, on the primary election. In order to help deal with this issue, the Lieutenant Governor felt that she was responsible for making a recommendation to the legislature for a new primary election law and, therefore, she created a task force on the primary election. Normally, we would have the chairperson of that task force testifying today, former Alaska Attorney General, Av Gross, but he's out of state. He would tell you the task force developed legislation and that the Governor presented that to the state legislature. That legislation has gone through the House and it's different from what the primary election task force proposed and it's before you now, the Finance Committee version of HB 193. The primary election task force that was convened by the Lieutenant Governor was composed of former lieutenant governors and former attorneys general and Av Gross was the chairperson of the task force. It was a non-partisan task force and viewed its mission as coming up with a new law on the primary election because Alaska's law was no longer valid. The process the task force used was to convene an informational meeting where they received the laws and options for conducting the primary election. Then there was another at which public comment was taken from all the recognized political parties, as well as the League of Women Voters and other interested parties. Finally, the task force had a third meeting in which it prepared its recommendations for the primary election. The task force basic principle was to change Alaska's law as little as possible and comply with the United States Supreme Court decision in the Jones case. The testimony they received indicated that the political parties did not object to using the premise of the blanket primary as a starting point for the new primary election system. However, the parties did want to retain the right to limit participation in their party primaries. Therefore, the original bill started with the premise of the blanket primary and then the political parties had the option to limit participation in their primary election. For example, the Republican Party ballot would list all candidates of all party affiliation, but only members of the Republican Party could vote for Republican Party candidates. However, members of the Republican Party could vote for candidates of other parties so long as those [indisc.]. The primary election task force believed that this type of primary system was consistent with Alaska's past history and the apparent preference of Alaskan voters for the blanket format. However, that original bill has changed and there have been a number of [committee substitutes]. They all approach the issue of the primary election from a different direction. The [committee substitutes] start from the premise of a closed primary in which parties are allowed to open up their primaries if they so choose. There are been two versions of this type of CS and the current CS that you have before you from House Finance, while calling for closed party primaries, starts with the premise that nonpartisan and undeclared voters may participate in the closed party primary so long as the parties do not object. A prior CS, I believe from House Judiciary, called for a closed party primary and started from the premise that only party members could vote in those primaries unless the parties affirmatively opened up their primaries to nonpartisan undeclared voters. In either case, the primary election task force recommendation is essentially the flip side of those kinds of [committee substitutes]. However, any of those bills will cure the problem in the Alaska statute caused by the Jones case. It's the legislature's policy call to make… CHAIRMAN TAYLOR asked why we need to do anything in light of the fact that the decision came down from the court, emergency regulations were passed, and an election was held. MS. FELIX replied that the emergency regulations have expired by operation of law. They can only last for so long. "Now we are in the situation of having no regulations on the books and a set of statutes that do not comply with California Democratic Party v. Jones." CHAIRMAN TAYLOR asked if the state could not draft regulations because the existing statute would not authorize those regulations. MS. FELIX explained that existing statutes provide for a blanket primary in Alaska. He said: The emergency regulations that were adopted last session on an emergency basis abrogated the statutes. The Alaska Supreme Court considered that issue in the O'Callahan case and the Court ruled that that was permissible on an emergency basis essentially until the legislature was able to meet and do a legislative fix. At that point the executive branch was doing regulations, arguably, without statutory authority. If there was no legislation to fix the primary and we were left to our own devices and had to do something, I think that we would probably be sued no matter what we did unless there was some legislation enacted this session regarding the primary election. SENATOR THERRIAULT commented that the Constitution says the election shall be run as dictated by law and that the legislature should set the policy for the way the elections are run. If we do nothing, the administration will have to do something in a proposed regulation package. As we can see by the piece of legislation they started out with, there's some difference between what they would like to see and what the legislature would like to see. So, we will have taken that policy power that is ours by Constitution, thrown it into their lap, they will make a policy call, be subject to suit with no statute to back it up and we will have basically thrown the whole policy system into the court system, in my opinion. So, it's not the advisable thing to do. MS. FELIX agreed with Senator Therriault. SENATOR THERRIAULT asked if it was the right of the party to have a closed primary unless they choose to let people participate. He asked if there was a problem coming from that direction. MS. FELIX responded that they could do it either way. SENATOR THERRIAULT said he had an earlier conversation with her to understand House language with regard to candidates who get on the ballot by petition. She explained because of a court case, the legislature changed the law in 1995 to say that they all have the same decision date when they get their name on the ballot. The House changed the petition candidate date back to the day of the primary, which basically undoes what the legislature did in 1995. He thought there was some court decision driving Representative Coghill's action. MS. FELIX explained: In House Judiciary the question came up of what to do with the petition candidates under the closed primary system: Should they appear on each of the parties' closed primary ballots or should there be a separate ballot for them? House Judiciary decided to solve that problem, they would simply say that the petition candidates would not appear on the primary election ballot. If they don't appear on the primary election ballot, then we can't hold them to the earlier filing date. The reason that the petition candidates are held to the June 1 filing date is because they had to appear on the primary election ballot. That was taken out of the bill and now the petition (no party) candidates only appear on the general election ballot. So, there is a court case that says under those circumstances, the petition candidates cannot be held to the early filing deadline. They have to be given a filing deadline no sooner than the date of the primary election. SENATOR THERRIAULT said he didn't understand why there's a problem with everyone having the same decision date. He said he didn't have a way of evaluating who his candidate was even though they could read everything about him. He thought it would make things fair. CHAIRMAN TAYLOR asked if there was a court case now. MS. FELIX replied that there were two Superior Court cases; one in 1998, the Ziegler case, and one in 1990, the Sykes case. The Sykes case was decided in the Superior Court by then Judge Dana Fabe, who is now the Chief Justice of the Alaska Supreme Court. The person who handled it explained: It was a case in which the court made a very strong decision that the state could not meet a rational basis test, a compelling interest test; they couldn't really establish any basis for requiring a petition candidate to meet the same filing deadline of June 1 that the party candidates would have to meet, because if the petition candidate wasn't going to be in the primary, there was no reason to require them to file at that time. The only reason for the June 1 date is because the party candidates are going to be in a primary. So, she found there was an insufficient state interest to require that. I understand what Senate Therriault is saying, but I think the Court did consider that argument and didn't find it was weighty enough. REPRESENTATIVE COGHILL said: I was persuaded in House Judiciary that if they weren't going to be on the primary ballot, then the starting gun could effectively go off on the date of the primary. Since I was pushing so hard for the party selection process to be the primary source of selection under that primary election, they put themselves outside that party process and put themselves in pretty much the initiative or signature gathering process. At that point, I couldn't make my case any stronger for keeping the primary closed if I had gone that direction. The starting gun from my point of view was sufficient for me to say the start of the primary. So be it… Number 170 This particular bill - I think it's better than what we started off with. This forces an inclusion, though, with those voters who have disenfranchised themselves from the party - the undeclared, the nonpartisan and the little independents. This particular bill you have before you does force the inclusion in the primary and if there is to be a closed primary within a party, they have to choose to exclude people, I find that fundamentally wrong. I find it out of line with the California Democratic Party V. Jones. TAPE 01-25, SIDE A REPRESENTATIVE COGHILL continued: On page 6, paragraph 2 of the decision, the Court has recognized that the fist amendment protects the freedom to join together in furtherance of common political beliefs, which necessarily presupposes the freedom to identify the people who constitute that association and to limit the association to those people only. I think if we force the inclusion, we're going against the very crux of this case. I implore you to make that plea… REPRESENTATIVE COGHILL had prepared some amendments. Regarding page 14, paragraph 14, he said, "If the party wants to open up the primary, that should be a party decision. It should not be a state mandate that they open it. In my view, a primary is a selection process; it's not an election." CHAIRMAN TAYLOR moved the two-page amendment that Representative Coghill prepared as amendment 1. He objected for purposes of discussion. SENATOR THERRIAULT asked if the effect of this was to go back to the closed primary unless the party takes action to open it. REPRESENTATIVE COGHILL answered yes. CHAIRMAN TAYLOR asked if that would leave them with a status quo in that the Democrats have not had to open their primary in the past. Their party had done it already. REPRESENTATIVE COGHILL agreed in that regard. CHAIRMAN TAYLOR asked if there were further objections to amendment 1. There were no objections and it was adopted. SENATOR THERRIAULT asked if that action forced the legislature to change the filing deadline for the petition candidates. REPRESENTATIVE COGHILL replied yes and said, "The date of the primary election would be the deadline for the physical delivery of that petition for a general election." SENATOR THERRIAULT asked if it forces the legislature to act because of the possibility that their names will not appear on any ballot in the primary and, because of that, there's no justification for having them file on an earlier date. REPRESENTATIVE COGHILL replied that was his understanding. SENATOR THERRIAULT said that if they didn't have to file before the date of the primary, they didn't have to file all the APOC reports before then. "You have no idea if they're gathering money; where it's coming from; what they're spending it on. So all your information is available to them and you get nothing back." REPRESENTATIVE COGHILL said if you go through the party process, you would be running your election from June through November, but the petition candidates would only have to start from the primary date on. He said they could ask APOC to have them begin reporting as soon as they start spending money on a petition drive. CHAIRMAN TAYLOR asked if Judge Fabe's decision was based on the law that the legislature passed by Senator Sharp to clarify that. SENATOR THERRIAULT interjected that Senator Sharp's law was passed afterwards and basically fixed the problem. CHAIRMAN TAYLOR asked if this bill somehow threw that change out. MS. FELIX replied yes. The bill removes the requirement that the petition candidates run in the primary. Under the bill, they will only run in the general election. If they put petition candidates in the primary, there is the question of implementing. CHAIRMAN TAYLOR said they would show up on everybody's ballot. REPRESENTATIVE COGHILL said that would force a nonpartisan on a partisan ballot, which is one of the things he has been arguing not to do. CHAIRMAN TAYLOR said he would give them until Monday to work out the differences. MS. GAIL FENUMIAI, Election Program Specialist, commented, "The reason for the change in the bill the way it exists now is because the no party candidates are removed from being on a primary ballot. In 1995, the law was changed to have them appear on the primary ballot. Therefore, they had the same filing deadline as candidates from recognized parties. Prior to 1995, they went straight to the general election ballot and had a filing deadline of the primary election date, due to the lawsuit that was filed." MS. FENUMIAI said she would check on Alaska Public Office's paper work, but she thought they would fall under the same guidelines as the candidates do. Petition candidates have to file a letter of intent before they can start raising money and expending funds. SENATOR THERRIAULT said he thought petition candidates should have to make their decision on the same date everyone else does and file the paperwork just like everybody else does. CHAIRMAN TAYLOR said, "If they have the means to finance their own campaign, they don't have to report anything until the day they file…" Number 724 CHAIRMAN TAYLOR said he would hold the bill over until Monday.