Legislature(2001 - 2002)

04/27/2001 01:48 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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.                                                            
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                                                            
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                                                            
Number 724                                                                                                                      
CHAIRMAN TAYLOR said he would hold the bill over until Monday.                                                                  

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