01/25/2011 09:00 AM Senate STATE AFFAIRS

                SB 31-COUNTING OF WRITE-IN VOTES                                                                            
                                                                                                                                
9:04:19 AM                                                                                                                    
CHAIR WIELECHOWSKI announced the consideration of SB 31.                                                                        
                                                                                                                                
GRIER HOPKINS,  staff to  Senator Joe Thomas,  sponsor of  SB 31,                                                               
said that Alaska just went  through an historic election. For the                                                               
first time  in over 50 years,  an election for the  United States                                                               
Senate was  won by a write-in  candidate. This was followed  by a                                                               
two-month  long court  battle, where  the Alaska  Superior Court,                                                               
the Alaska Supreme Court, and  a federal District Court judge all                                                               
found in  favor of ensuring  voters' intent and making  sure that                                                               
as many people are enfranchised  as possible. Each court decision                                                               
states the  importance of  voter intent,  and that  the statutory                                                               
language  currently dealing  with write-in  ballots is  murky and                                                               
open to interpretation.                                                                                                         
                                                                                                                                
MR.  HOPKINS explained  that the  Alaska  Supreme Court  decision                                                               
recommends the specific  language proposed in SB  31, which looks                                                               
to clarify  the statutory problem.  The intent  of SB 31  is two-                                                               
fold. First, it  intends to clarify statutory  language to ensure                                                               
that  as many  Alaskans are  enfranchised as  possible. When  the                                                               
director uses  a uniform standard  in judging voter  intent, this                                                               
allows write-in  ballots to count.  The courts noted that  if the                                                               
legislature  intended   to  require   an  exact  spelling   of  a                                                               
candidate's  name on  a write-in  ballot,  the legislature  would                                                               
have used more specific language, such as "perfect."                                                                            
                                                                                                                                
9:09:49 AM                                                                                                                    
The second reason for SB 31  is to tighten statutory language and                                                               
strengthen the public perception  of Alaska's democratic process.                                                               
Having  clear,  precise  language   showing  how  the  votes  are                                                               
determined, will  hopefully reduce  some of the  outcry regarding                                                               
the counting of write-in ballots.                                                                                               
                                                                                                                                
SENATOR  MEYER asked  if the  Director  of Elections  will be  in                                                               
charge of determining voter intent.                                                                                             
                                                                                                                                
9:12:09 AM                                                                                                                    
GAIL  FENUMIAI, Director,  Division of  Elections, Office  of the                                                               
Lieutenant  Governor, responded  that  the  Alaska Supreme  Court                                                               
has ruled that  it was to the  benefit of the voters  to have one                                                               
person  ruling   on  write-in   ballots,  using   a  common-sense                                                               
approach, and  allowing phonetic  spelling if  the intent  of the                                                               
voter was clear.                                                                                                                
                                                                                                                                
SENATOR PASKVAN  noted that the  Alaska Supreme Court  has stated                                                               
the  division's   statutory  interpretations   were  common-sense                                                               
interpretations, and that it is  not possible to be all-inclusive                                                               
in the definitions. He agreed that  common sense has to guide the                                                               
director.                                                                                                                       
                                                                                                                                
SENATOR KOOKESH asked if the division supports the bill.                                                                        
                                                                                                                                
MS. FENUMIAI stated  that the division has  some technical issues                                                               
with the way  the bill has been drafted, which  the Department of                                                               
Law is here to address. The  Division of Elections has not always                                                               
implemented in statute the rulings of the courts.                                                                               
                                                                                                                                
9:16:14 AM                                                                                                                    
SENATOR MEYER  said he  respects the intent  of the  common sense                                                               
approach,  but  questioned  how that  could  be  consistent  from                                                               
director to director.                                                                                                           
                                                                                                                                
MS. FENUMIAI said  she believes it depends  on issues surrounding                                                               
individual  candidates. For  instance, minor  misspellings should                                                               
not  disenfranchise a  voter.  The division  does  not make  snap                                                               
decisions;   the  election   was  heavily   vetted  through   the                                                               
Department of Law.                                                                                                              
                                                                                                                                
SARAH  FELIX,  Attorney, Labor  &  State  Affairs Section,  Civil                                                               
Division,  Alaska  Department  of Law,  stated  the  department's                                                               
objections have been addressed in a committee substitute.                                                                       
                                                                                                                                
9:18:54 AM                                                                                                                    
SENATOR PASKVAN moved to adopt  the proposed committee substitute                                                               
(CS) for  SB 31,  labeled 27-LS0350\B,  as the  working document.                                                               
There being no objection, version B was before the committee.                                                                   
                                                                                                                                
MS. FELIX noted that Version B  appears to have taken care of her                                                               
concerns with  paragraph 13  in the  original bill,  which stated                                                               
that the  election board  was counting  the ballots  for write-in                                                               
candidates; however,  in practice, the director  was making those                                                               
decisions on voter intent. She  added that the U.S. Supreme Court                                                               
also found  in Bush  v. Gore  that a  single determiner  of voter                                                               
intent was very important.                                                                                                      
                                                                                                                                
CHAIR WIELECHOWSKI  asked if  the Department  of Law  supports SB
.                                                                                                                             
                                                                                                                                
MS. FELIX replied  the DOL does not take a  position. However, it                                                               
appears  that  version  B  would  accomplish  what  the  bill  is                                                               
intended to accomplish.                                                                                                         
                                                                                                                                
SENATOR PASKVAN asked  if the standards and  guidelines set forth                                                               
by the Alaska Supreme Court are adopted in this proposed bill.                                                                  
                                                                                                                                
9:23:20 AM                                                                                                                    
MS. FELIX  responded that  statutes are not  drafted to  refer to                                                               
court cases, but the division  does heavily rely on Supreme Court                                                               
precedent in counting ballots.                                                                                                  
                                                                                                                                
SENATOR PASKVAN  asked if she  was worried that trying  to define                                                               
language would be  viewed as a limitation on  the ballot counting                                                               
guidelines in Miller v Treadwell.                                                                                               
                                                                                                                                
MS. FELIX answered that paragraph  13 is entirely consistent with                                                               
the standards.  That language is  taken from an  existing federal                                                               
regulation on the counting of write-in ballots.                                                                                 
                                                                                                                                
CHAIR WIELECHOWSKI asked if there was  an estimate of the cost to                                                               
the state of the litigation over this election.                                                                                 
                                                                                                                                
MS. FELIX responded  that the whole case cost  $85,000 - $100,000                                                               
and the  state could only  recover twenty percent  for attorney's                                                               
fees, which in the Superior Court  case amounted to $17,000.  The                                                               
Supreme  Court  case   was  slightly  less,  and   there  is  the                                                               
possibility of federal litigation as well.                                                                                      
                                                                                                                                
CHAIR  WIELECHOWSKI  noted  that  the tremendous  cost  of  court                                                               
challenges  is another  good reason  to pass  the bill.  He asked                                                               
what the  cost would be for  taking the case to  the U.S. Supreme                                                               
Court.                                                                                                                          
                                                                                                                                
MS. FELIX responded  that the cost for going to  the U.S. Supreme                                                               
Court would be at least as much as the cost of the state case.                                                                  
                                                                                                                                
9:27:40 AM                                                                                                                    
MS. FENUMIAI informed the committee  that the Lieutenant Governor                                                               
and  the  Division   of  Elections  are  going   to  undertake  a                                                               
comprehensive review  of the  2010 general  election and  look at                                                               
statutes and potential legislative  changes that may be required.                                                               
So   there   might   possibly  be   additional   election-related                                                               
legislation presented this session.                                                                                             
                                                                                                                                
CHAIR WIELECHOWSKI asked for clarification  on SB 31 from Alpheus                                                               
Bullard.                                                                                                                        
                                                                                                                                
9:28:35 AM                                                                                                                    
ALPHEUS BULLARD,  Attorney, Legal Services  Division, Legislative                                                               
Affairs Agency,  Alaska State Legislature,  spoke to  the Supreme                                                               
Court's  decision. He  noted that  when you  craft statutes,  you                                                               
want to be sure  it is clear what is being  conveyed. Five or ten                                                               
years from now, people will not  be as familiar with that case as                                                               
they  are  today.  He  would  suggest  some  sort  of  uncodified                                                               
provision in the session laws.                                                                                                  
                                                                                                                                
SENATOR PASKVAN wondered  whether the language in  the bill would                                                               
restrict the ability of the director to make decisions.                                                                         
                                                                                                                                
MR.  BULLARD replied  that he  did  not believe  the language  in                                                               
paragraph 13,  in either  version of the  bill, would  operate to                                                               
restrict  any future  employee of  the Division  of Elections  in                                                               
interpreting voter intent.                                                                                                      
                                                                                                                                
SENATOR HOLLIS FRENCH, co-prime sponsor  of SB 31, said he signed                                                               
on to  the bill because  he believes it  is important to  do what                                                               
the Supreme  Court directed,  which is to  make sure  that future                                                               
elections are done in a regular manner.                                                                                         
                                                                                                                                
9:32:00 AM                                                                                                                    
SENATOR LINDA MENARD,  co-prime sponsor of SB 31,  said she wants                                                               
to make sure that in the  future the standard for voter intent is                                                               
very clear.                                                                                                                     
                                                                                                                                
SENATOR WIELECHOWSKI asked for public testimony.                                                                                
                                                                                                                                
9:33:42 AM                                                                                                                    
BEN  BROWN, representing  himself,  testified in  support of  the                                                               
bill.  He  was here  in  Juneau  for  the ballot  counting.  Just                                                               
because  there may  be  some ambiguity,  although  not enough  to                                                               
result in  a different  outcome, this is  an opportunity  for the                                                               
Alaska  Legislature to  clean up  a  very important  part of  the                                                               
Alaska  Elections  Act.  There  is   no  way  to  prevent  future                                                               
litigation, but  it is  very likely  that a  judge would  grant a                                                               
Motion for  Summary Judgment with  this language in  the statute.                                                               
This would be a miniature legal expense.                                                                                        
                                                                                                                                
9:34:46 AM                                                                                                                    
ANN  GRUENING,   volunteer  for  U.S.  Senator   Lisa  Murkowski,                                                               
testified in support  of SB 31. She stated she  spent over twenty                                                               
hours observing the write-in vote  count in Juneau, and witnessed                                                               
Murkowski  ballots being  repeatedly  challenged for  imperfectly                                                               
formed letters, or  a heart or a  star in place of a  dot over an                                                               
"i." The  most offensive objections  were the  ballots challenged                                                               
because of  shaky handwriting.  Elections Director  Gail Fenumiai                                                               
pored  over every  challenged  vote, and  she  was consistent  in                                                               
counting only those votes which  could be phonetically pronounced                                                               
as "Murkowski," and where the voter's intent was obvious.                                                                       
                                                                                                                                
9:36:41 AM                                                                                                                    
MARILYN  RUSSELL, President,  League of  Women Voters  of Alaska,                                                               
said  the  League supports  SB  31  because it  enfranchises  the                                                               
greatest number  of voters to  the greatest extent  possible. The                                                               
League has always  supported efforts to expand  voting and voting                                                               
rights to  as many citizens as  possible. That is what  this bill                                                               
does.                                                                                                                           
                                                                                                                                
9:37:42 AM                                                                                                                    
HEDDY HUME, Disability  Law Center of Alaska,  explained that the                                                               
Disability  Law Center  is a  federally  mandated protection  and                                                               
advocacy agency for  the State of Alaska. Their  comments on this                                                               
bill are in regard to the Help  America Vote Act (HAVA).  As part                                                               
of  that grant,  they have  a  protection and  advocacy role  for                                                               
voter access  (PAVA) for people with  disabilities. She explained                                                               
that  spelling errors  will be  systematically more  pervasive in                                                               
people   with  disabilities.   If   a  voter's   intent  can   be                                                               
ascertained,  that  intent should  be  followed.  They hope  that                                                               
voters with  disabilities are not  disenfranchised because  of an                                                               
overly restrictive interpretation of the write-in voting laws.                                                                  
                                                                                                                                
9:39:26 AM                                                                                                                    
SCOTT  KINDLE, attorney,  stated  he was  testifying  on his  own                                                               
behalf.  He  had  the  honor  of  representing  Lisa  Murkowski's                                                               
campaign, but is  not testifying on her behalf.  He explained the                                                               
law  has  always  allowed  for  voter  intent,  which  should  be                                                               
paramount over any technical concerns.                                                                                          
                                                                                                                                
Mr. Kindle  believes there are  two possible reasons  for passing                                                               
SB 31. First,  candidates cannot say that  misspelled ballots are                                                               
not allowed;  this bill is a  reaffirmation of the law  as it has                                                               
always been. Elections law is all  about the faith of the public.                                                               
Adopting the Supreme Court language  is entirely appropriate, and                                                               
you simply can't make it too  specific.  One single person making                                                               
calls on questioned ballots makes it consistent.                                                                                
                                                                                                                                
9:46:20 AM                                                                                                                    
CHAIR WIELECHOWSKI closed public testimony and held SB 31 in                                                                    
committee.