Legislature(2001 - 2002)
03/22/2001 03:37 PM Senate STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 127-OPTIONAL BLANKET PRIMARY
CHAIRMAN THERRIAULT asked Senator Elton to respond to comments made
about his bill during testimony for SB 146. Individuals testifying
via teleconference on SB 146 also included remarks on SB 127 and
SCR 8. In particular he asked whether Senator Elton wanted to speak
to the issue of parties picking up the cost of special primaries.
He also planned to have Assistant Attorney General Baldwin address
the issue.
SENATOR ELTON, Senator from District B, wanted to talk about
general principles, move into the specifics of SB 127 and finally
anticipate a question that the committee probably has.
· First, it is important to do no damage to minor parties. There
needs to be a system that doesn't encourage people to abandon
a party.
· There is a need to avoid chaos, as was the case in Florida.
· Non-partisan voters are the majority of voters in the State of
Alaska and need to be protected.
· Realize that there is no finality. Both bill provide that
primary elections may be run differently than the previous
primary.
The challenge facing the legislature is huge. He can think of no
issue that so combines partisan issues with policy issues. Each
legislator will be looking at the issue from their particular
viewpoint be it partisan or from an ambition point. Each elected
official will ask which method works to his or her best benefit. Is
a convention better for me than a caucus or an open, closed, or
blanket primary? He urged everyone to heed the words of the Lt.
Governor and bring finality to this issue during this session.
Otherwise the Division of Elections and potential candidates are
done a great disservice. They need to know what the rules will be
before they are able to determine whether they want to participate
in the process.
Both SB 146 and SB 127 began with the same general premise that it
is important to preserve the present system to the greatest extent
possible. Their ideas diverged at some point and that anticipates a
question committee members probably have about the
constitutionality and freedom of association. However, the impulse
for both is to try and keep the system close to the current system
and comply with the Supreme Court decision. This is what most
Alaskans expect.
SB 127 says that the State will conduct a primary election and it
will be a blanket primary. Then it provides that if a party chooses
not to participate in that primary, they may opt out. This gets
around the Supreme Court finding that the State cannot compel a
party to participate in a process that they don't want to
participate in. Then, it prohibits voters from a party that has
withdrawn from the primary system from participating in the primary
because you don't want to give them the opportunity to select party
candidates twice.
Most of the remaining bill provisions are quite technical and he
would address them if there were questions. He did note that some
of the technical issues were raised by Mr. Sykes' testimony. For
example, he is concerned about the withdrawal provisions and
finding ourselves in the same situation as in 1990. His bill
doesn't change that provision but the committee should consider it.
The question of whether constitutional problems are being created
by associating a cost to a decision by a party to not participate
in a blanket primary is a spectrum issue. Clearly, wherever that
cost lines up on the spectrum may influence the decision the court
makes. It isn't a new issue; Arizona now has a primary system where
Democratic Party rules provide a different date for selecting their
presidential candidate. The courts have said that the party may opt
out but they must pay for the alternate selection process. This is
a system that was compelled by court decision. He cautioned against
throwing out other alternatives because it has been suggested that
we're abridging the constitution by associating a cost with a party
decision.
CHAIRMAN THERRIAULT asked if the Arizona case didn't say, "We will
pay for it along with everybody else if you opt. Otherwise you can
choose to pay for your primary." This isn't the same as what
Senator Elton is suggesting. The difference is that they aren't
trying to direct the way the party conducts the primary, just the
date.
Tape 2
SENATOR ELTON read the following: "Because the state conducts its
election prior to the date allowed under the bylaws of the
Democratic Party, Arizona allows political parties to opt out of
participation." This is because their presidential primary statutes
don't comport with Democratic Party bylaws. "Parties that do opt
out of the state run election, bear the cost of conducting their
own presidential preference election."
He doesn't see the distinction between what they have done and what
SB 127 suggests which is that the State of Alaska will provide a
blanket primary. If party bylaws don't comport with State statutes
then the parties may opt out. SB 127 does not suggest that parties
pay for the alternative selection process but that is probably what
ends up happening, which is the same as in Arizona. Again, the
Arizona model is a model suggested by the courts.
CHAIRMAN THERRIAULT asked for questions from the committee members.
There were none.
He asked Mr. Baldwin to come forward.
JIM BALDWIN, Assistant Attorney General, said he isn't familiar
with the Arizona case but can speak to the effect of having a
political party pay for holding a different primary, it's electoral
process of choice.
The U.S. Supreme Court ruled on a Texas statute that said that
parties who wanted to participate in the state primary system had
to pay for the portion of the cost related to their participation.
It was a graduated fee charged for various offices with the charges
for statewide offices being less than for local offices. In that
instance, the court applied an equal protection analysis. This is
common in this type of election case, which is a third party
charging that they are being treated differently. Looking at
different state precedents, it's difficult to predict an outcome.
This is because the courts will look at the specific circumstances
of Alaska and determine whether a good case may be made for the
direction that was chosen. If the court is employing a strict
standard, is there some compelling reason for the system? Or, will
the basis be more rational and ask whether there is some good
reason why the State has done what it has done? It's difficult to
predict whether you'll be faced with a strict compelling interest
standard or a more rational basis.
In the area of First Amendment rights, and a system that adversely
affects those rights, the State has been faced with the compelling
interest standard. That standard was applied in the Jones case.
In other areas, the State has been confronted with the rational
basis standard. For example, states have not been held to a
compelling interest standard when justifying the decision to
nominate by election rather than by convention. In the case where a
statute says that the norm is the blanket primary, you must leave
the State system and do it on your own if you want to do something
other than the blanket primary. "This presents the problem of the
State having to justify what it has done by whatever interest it
has in promoting the blanket primary. We all know where that ended
up. It was not a good result for the State of California and hence,
applicable for us. So we start out on the lower end of that burden
and I tend to think that we will be, more than likely, confronting
a compelling interest standard more than a rational basis standard.
We could argue Arizona, California or Texas but I think we'll be
facing a compelling interest standard if this is litigated. We'd
have to prepare for that and record would have to be made in these
committees that are hearing this bill as to what particularly is
our interest in maintaining the system that we maintain if we're
going to require that parties choose, and have there be some
consequences to that choice, without the State-there being an
unequal benefit or an unequal State benefit being provided there.
I'm not saying it absolutely can't be done; appropriate case would
have to be made for it though."
Number 547
CHAIRMAN THERRIAULT said that he hasn't had the opportunity to read
the Arizona case and he and his staff intend to track down the
actual case documents mentioned. However, it seems that the
decision to participate on the day that the state selects for its
primary or the decision to not participate on that day and bear the
expense of selecting an alternative date is different than being
required to bear the expense because the party wanted to exercise
its right to the methodology.
ASSISTANT ATTORNEY GENERAL BALDWIN agreed but said that there is
also "a big difference between a case that deals with the
presidential primary and a case that deals with a state primary for
a state office. The cases have been different in how they deal with
primaries for national office. Different rights are accorded to
those kinds of electoral processes as opposed to primaries that
deal with local state office. So I would read that case carefully
with that in mind."
CHAIRMAN THERRIAULT said that if a party chooses to exercise its
constitutional right they shouldn't be preempted from doing so
because they might not have the ability to pay for it.
ASSISTANT ATTORNEY GENERAL BALDWIN said that the Texas case dealt
with candidates and their party who had to help defray the cost of
the election. In that instance, the court found that there wasn't
sufficient justification to sustain that burden on the exercise of
the right to run for office or put forward candidates. He believes
that's what Chairman Therriault is speaking to and said the case
could be made but the burden for that is heavy along with the fact
that the federal court might hold the State to the compelling
interest standard.
In the Alaska Constitution, there is a provision in the title
dealing with elections that says that the legislature shall provide
the method of voting. It doesn't say that a primary election is
necessary but if there is voting going on then it's arguable that
the legislature shall regulate how that voting takes place.
Therefore, if the legislature says there must be elections by
primaries then there is a question of whether they must say how the
voting is conducted.
CHAIRMAN THERRIAULT said that the courts can not compel legislative
action due to separation of powers so potentially the court and the
administration would work together to determine what the
legislature intended or might do.
ASSISTANT ATTORNEY GENERAL BALDWIN said the legislature would be
facing a declaration that they should do something and it would be
up to them to do it.
CHAIRMAN THERRIAULT asked whether there were any questions for Mr.
Baldwin. There were none.
He said the committee would be taking the matter under advisement
and tracking down information on the court cases mentioned. SB 127
was held in committee.
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