04/09/2011 12:30 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HJR4 | |
| HB215 | |
| SB31 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
| += | HJR 4 | TELECONFERENCED | |
| + | SB 31 | TELECONFERENCED | |
| += | HB 215 | TELECONFERENCED | |
| + | TELECONFERENCED |
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
April 9, 2011
12:37 p.m.
MEMBERS PRESENT
Representative Carl Gatto, Chair
Representative Steve Thompson, Vice Chair
Representative Wes Keller
Representative Bob Lynn
Representative Lance Pruitt
Representative Max Gruenberg
Representative Lindsey Holmes
Representative Mike Chenault (alternate)
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE JOINT RESOLUTION NO. 4
Proposing amendments to the Constitution of the State of Alaska
creating a transportation infrastructure fund.
- MOVED CSHJR 4(TRA) OUT OF COMMITTEE
HOUSE BILL NO. 215
"An Act relating to the judicial review of a right-of-way lease
or the development or construction of an oil or gas pipeline on
state land."
- MOVED CSHB 215(JUD) OUT OF COMMITTEE
COMMITTEE SUBSTITUTE FOR SENATE BILL NO. 31(JUD)
"An Act relating to the counting of write-in votes."
- MOVED HCS CSSB 31(STA) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HJR 4
SHORT TITLE: CONST. AM: TRANSPORTATION FUND
SPONSOR(S): REPRESENTATIVE(S) P.WILSON, THOMPSON
01/18/11 (H) PREFILE RELEASED 1/7/11
01/18/11 (H) READ THE FIRST TIME - REFERRALS
01/18/11 (H) TRA, JUD, FIN
02/15/11 (H) TRA AT 1:00 PM CAPITOL 17
02/15/11 (H) Heard & Held
02/15/11 (H) MINUTE(TRA)
02/17/11 (H) TRA AT 1:00 PM CAPITOL 17
02/17/11 (H) Heard & Held
02/17/11 (H) MINUTE(TRA)
02/24/11 (H) TRA AT 1:00 PM CAPITOL 17
02/24/11 (H) <Bill Hearing Canceled>
03/08/11 (H) TRA AT 1:00 PM CAPITOL 17
03/08/11 (H) Moved CSHJR 4(TRA) Out of Committee
03/08/11 (H) MINUTE(TRA)
03/09/11 (H) TRA RPT CS(TRA) 6DP 1NR
03/09/11 (H) DP: JOHNSON, FEIGE, PRUITT, MUNOZ,
PETERSEN, P.WILSON
03/09/11 (H) NR: GRUENBERG
03/25/11 (H) JUD AT 1:00 PM CAPITOL 120
03/25/11 (H) Heard & Held
03/25/11 (H) MINUTE(JUD)
04/08/11 (H) JUD AT 1:00 PM CAPITOL 120
04/08/11 (H) -- Rescheduled to 4/9/11 @ 12:30 pm --
04/09/11 (H) JUD AT 12:30 AM CAPITOL 120
BILL: HB 215
SHORT TITLE: JUDICIAL REVIEW OF PIPELINE PROJECT/ROW
SPONSOR(S): REPRESENTATIVE(S) CHENAULT
03/29/11 (H) READ THE FIRST TIME - REFERRALS
03/29/11 (H) JUD
04/06/11 (H) JUD AT 1:00 PM CAPITOL 120
04/06/11 (H) Heard & Held
04/06/11 (H) MINUTE(JUD)
04/08/11 (H) JUD AT 1:00 PM CAPITOL 120
04/08/11 (H) -- Rescheduled to 4/9/11 @ 12:30 pm --
04/09/11 (H) JUD AT 12:30 AM CAPITOL 120
BILL: SB 31
SHORT TITLE: COUNTING OF WRITE-IN VOTES
SPONSOR(S): SENATOR(S) THOMAS, FRENCH, MENARD, WIELECHOWSKI
01/19/11 (S) PREFILE RELEASED 1/7/11
01/19/11 (S) READ THE FIRST TIME - REFERRALS
01/19/11 (S) STA, JUD
01/25/11 (S) STA AT 9:00 AM BUTROVICH 205
01/25/11 (S) Heard & Held
01/25/11 (S) MINUTE(STA)
01/27/11 (S) STA AT 9:00 AM BUTROVICH 205
01/27/11 (S) Moved CSSB 31(STA) Out of Committee
01/27/11 (S) MINUTE(STA)
01/28/11 (S) STA RPT CS 5DP NEW TITLE
01/28/11 (S) DP: WIELECHOWSKI, KOOKESH, PASKVAN,
MEYER, GIESSEL
01/31/11 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
01/31/11 (S) Heard & Held
01/31/11 (S) MINUTE(JUD)
02/02/11 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/02/11 (S) Moved CSSB 31(JUD) Out of Committee
02/02/11 (S) MINUTE(JUD)
02/04/11 (S) JUD RPT CS 4DP SAME TITLE
02/04/11 (S) DP: FRENCH, WIELECHOWSKI, PASKVAN,
MCGUIRE
02/14/11 (S) TRANSMITTED TO (H)
02/14/11 (S) VERSION: CSSB 31(JUD)
02/16/11 (H) READ THE FIRST TIME - REFERRALS
02/16/11 (H) STA, JUD
04/05/11 (H) STA AT 8:00 AM CAPITOL 106
04/05/11 (H) Scheduled But Not Heard
04/06/11 (H) JUD AT 1:00 PM CAPITOL 120
04/06/11 (H) <Bill Hearing Rescheduled to 4/8/11>
04/07/11 (H) STA AT 8:00 AM CAPITOL 106
04/07/11 (H) Moved HCS CSSB 31(STA) Out of Committee
04/07/11 (H) MINUTE(STA)
04/08/11 (H) STA RPT HCS(STA) 3DP 2AM
04/08/11 (H) DP: SEATON, PETERSEN, GRUENBERG
04/08/11 (H) AM: P.WILSON, KELLER
04/08/11 (H) JUD AT 1:00 PM CAPITOL 120
04/08/11 (H) -- Rescheduled to 4/9/11 @ 12:30 pm --
04/09/11 (H) JUD AT 12:30 AM CAPITOL 120
WITNESS REGISTER
REPRESENTATIVE PEGGY WILSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As a joint prime sponsor, presented HJR 4.
BECKY ROONEY, Staff
Representative Peggy Wilson
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of HJR 4 on
behalf of one of its joint prime sponsors, Representative P.
Wilson.
TOM WRIGHT, Staff
House Majority Office
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 215, provided
comments and responded to a question on behalf of the sponsor,
Representative Mike Chenault, Speaker, House of Representatives.
RUTH HAMILTON HEESE, Senior Assistant Attorney General
Environmental Section
Civil Division (Juneau)
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Provided comments and responded to a
question during discussion of HB 215.
JOHN HUTCHINS, Assistant Attorney General
Oil, Gas & Mining Section
Civil Division (Juneau)
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Provided comments and responded to
questions during discussion of HB 215.
MERRICK PEIRCE, Chief Financial Officer (CFO);
Member
Board of Directors
Alaska Gasline Port Authority (AGPA)
Fairbanks, Alaska
POSITION STATEMENT: During discussion of HB 215, provided
comments and responded to questions.
SENATOR JOE THOMAS
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: As a joint prime sponsor, presented SB 31.
GRIER HOPKINS, Staff
Senator Joe Thomas
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Assisted with the presentation of SB 31 on
behalf of one of its joint prime sponsors, Senator Thomas.
GAIL FENUMIAI, Director
Central Office
Division of Elections
Office of the Lieutenant Governor
Juneau, Alaska
POSITION STATEMENT: During discussion of SB 31, provided
comments and responded to questions.
ACTION NARRATIVE
12:37:07 PM
CHAIR CARL GATTO called the House Judiciary Standing Committee
meeting to order at 12:37 p.m. Representatives Gatto, Holmes,
Lynn, Keller, Pruitt, Thompson, and Chenault (alternate) were
present at the call to order. Representative Gruenberg arrived
as the meeting was in progress.
HJR 4 - CONST. AM: TRANSPORTATION FUND
[Contains brief mention of HB 30 and HB 31, which address the
funding and other necessary statutory changes related to HJR 4's
proposed transportation infrastructure fund.]
12:37:38 PM
CHAIR GATTO announced that the first order of business would be
HOUSE JOINT RESOLUTION NO. 4, Proposing amendments to the
Constitution of the State of Alaska creating a transportation
infrastructure fund. [Before the committee was CSHJR 4(TRA).]
12:38:25 PM
REPRESENTATIVE PEGGY WILSON, Alaska State Legislature, as one of
the joint prime sponsors, explained that [if passed by the
legislature,] HJR 4 would place before the voters a proposed
amendment to the Alaska State Constitution establishing a
dedicated fund - in the form of a transportation infrastructure
fund - that would be used to fund Alaska's transportation
projects. There are three pieces of legislation that together
would enable the establishment of the proposed transportation
infrastructure fund: HJR 4 would place the proposed change to
the Alaska State Constitution before the voters, HB 31 would
provide for the appropriation of an initial $1 billion to the
fund, and HB 30 would provide the other necessary statutory
changes. The proposed constitutional amendment is broad enough,
she posited, to provide some flexibility for future legislatures
but concise enough to ensure that the proposed transportation
infrastructure fund would not be depleted and could instead
provide transportation funding far into the future. In response
to questions, she relayed that if passed by the legislature,
HJR 4's proposed constitutional amendment would go before the
voters at the 2012 general election; that the Department of
Transportation & Public Facilities (DOT&PF) is responsible for
Alaska's roads, airports, harbors, and the Alaska Marine Highway
System (AMHS), but not Alaska's railroads; and that under a
change made by the prior committee, the proposed transportation
infrastructure fund would no longer include [revenues from
airport leases].
12:42:40 PM
BECKY ROONEY, Staff, Representative Peggy Wilson, Alaska State
Legislature, on behalf of Representative P. Wilson, one of
HJR 4's joint prime sponsors, added that this change was made
due to a federal requirement that such lease revenues be
returned to the airports from which they were collected. In
response to other questions, she said that revenues from the
state's studded-tire tax would be included in the proposed
transportation infrastructure fund, as would revenues from the
state's identification (ID) card fees; and that under the
proposed constitutional amendment, the legislature, in any given
year, could appropriate up to 50 percent of the proposed
transportation infrastructure fund's yearly revenue.
REPRESENTATIVE P. WILSON indicated that the remaining 50 percent
would remain in the proposed transportation infrastructure fund
in order to inflation-proof it and help it grow. In response to
another question, she relayed that in order to provide the
legislature with additional flexibility, the proposed
constitutional amendment was drafted such that the legislature
could also appropriate up to 6 percent of the proposed
transportation infrastructure fund's market value averaged over
the previous five fiscal years. The legislature would not be
required to appropriate the maximum percentages provided for via
HJR 4's proposed constitutional amendment, however, and
depending on the status of Alaska's economy in a particular
year, it could be wiser not to.
REPRESENTATIVE P. WILSON, in response to questions, indicated
that [outlining the specific revenue sources in both statute and
the Alaska State Constitution] would protect the proposed
transportation infrastructure fund while also providing the
legislature with flexibility, and that HB 30 would provide the
necessary statutory changes, including outlining what the
appropriated funds could be used for and specifying the
percentages of the revenues that could be used for those things.
MS. ROONEY, in response to a further question, explained that
the ballot measure would [in part] consist of the language in
Section 2's proposed Section 18 of Article IX of the Alaska
State Constitution. She added that language [on page 2,
lines 2-3 - specifically that which says, "and from other
transportation-related fees and funds designated by the
legislature" - would allow for the possible future
appropriation] of revenue streams that don't yet exist.
CHAIR GATTO, after ascertaining that no one else wished to
testify, closed public testimony on HJR 4.
12:50:51 PM
REPRESENTATIVE THOMPSON moved to report CSHJR 4(TRA) out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHJR 4(TRA) was
reported from the House Judiciary Standing Committee.
The committee took an at-ease from 12:51 p.m. to 12:54 p.m.
HB 215 - JUDICIAL REVIEW OF PIPELINE PROJECT/ROW
12:54:18 PM
CHAIR GATTO announced that the next order of business would be
HOUSE BILL NO. 215, "An Act relating to the judicial review of a
right-of-way lease or the development or construction of an oil
or gas pipeline on state land." [Before the committee was the
proposed committee substitute (CS) for HB 215, Version 27-
LS0741\I, Bullock, 4/5/11, which had been adopted as the working
document on 4/6/11.]
12:55:50 PM
REPRESENTATIVE HOLMES made a motion to adopt Amendment 1,
labeled 27-LS0741\I.1, Bullock, 4/7/11, which read:
Page 6, line 19:
Delete "(b)"
Insert "(c)"
Page 6, line 20:
Delete all material and insert:
"* Sec. 6. AS 38.35.200 is amended by adding a new
subsection to read:"
Page 6, line 21:
Delete "(b)"
Insert "(c)"
REPRESENTATIVE PRUITT objected for the purpose of discussion.
12:56:20 PM
TOM WRIGHT, Staff, House Majority Office, Alaska State
Legislature, on behalf of the sponsor, Representative Mike
Chenault, Speaker, House of Representatives, indicating that
there had been discussions with the Department of Law (DOL) on
this issue, explained that Amendment 1 would provide for the
retention of existing AS 38.35.200(b), which currently allows
for a judicial review [based on the grounds that there was a
failure to follow the procedures set out in AS 38.35, or on the
grounds that there has been an abuse of discretion such that it
constitutes a denial of due process]. Under Amendment 1,
instead of repealing and reenacting AS 38.35.200(b), Version I's
Section 6 would simply add a new subsection (c) to AS 38.35.200.
Currently, existing subsection (b) pertains to all pipelines,
whereas what would become new subsection (c) under Amendment 1
would pertain only to natural gas pipelines.
REPRESENTATIVE PRUITT removed his objection.
CHAIR GATTO, after ascertaining that there were no further
objections, announced that Amendment 1 was adopted.
CHAIR GATTO relayed that the proposed amendment in members'
packets labeled 27-LS0741\I.2, Bullock, 4/7/11, would not be
offered; that proposed amendment read:
Page 1, line 2:
Delete "and"
Page 1, line 4, following "corridor":
Insert "; and providing for an effective date"
Page 7, following line 10:
Insert a new bill section to read:
"* Sec. 8. This Act takes effect immediately under
AS 01.10.070(c)."
12:59:03 PM
REPRESENTATIVE HOLMES made a motion to adopt Amendment 2,
labeled 27-LS0741\I.3, Bullock, 4/8/11, which read:
Page 6, line 21, following "law":
Insert "and except for an action described in (c)
of this section"
Page 7, following line 5:
Insert a new bill section to read:
"* Sec. 7. AS 38.35.200 is amended by adding a new
subsection to read:
(c) An appeal of a permitting decision by the
Department of Environmental Conservation under
AS 46.03 or AS 46.14 that is made under authority
delegated to the Department of Environmental
Conservation by the United States Environmental
Protection Agency is not
(1) subject to the limitation in (a)(2) of this
section;
(2) included in the actions described in (b) of
this section."
Renumber the following bill section accordingly.
REPRESENTATIVE PRUITT objected for the purpose of discussion.
MR. WRIGHT - indicating that the language of Amendment 2 was
suggested by the Department of Environmental Conservation (DEC),
and characterizing Amendment 2 as necessary - explained that all
legislation that could affect the state's primacy over its air
or water quality must be submitted to and reviewed by the
federal Environmental Protection Agency (EPA), which then
determines whether the legislation would violate federal
regulation and whether the state's primacy should therefore be
revoked. Adoption of Amendment 2 would ensure that the state's
primacy over its own air and water quality won't become an issue
under HB 215, thereby precluding the need for the EPA to become
involved. In terms of pipeline right-of-ways, he relayed, the
water-quality issues that need to be addressed are primarily
those pertaining to storm/water runoff and water discharge, and
[the sponsor] would prefer for the state to deal with the DEC on
these issues rather than with the EPA.
CHAIR GATTO indicated support for Amendment 2.
1:02:00 PM
REPRESENTATIVE CHENAULT, speaking as the sponsor of HB 215,
relayed that he reluctantly supports Amendment 2.
MR. WRIGHT suggested that the drafter be instructed to conform
the language of Amendment 2 with the changes effected by the
adoption of Amendment 1.
CHAIR GATTO and REPRESENTATIVE HOLMES acknowledged that point.
MR. WRIGHT, in response to comments and questions regarding
Version I's Section 5 - which is proposing to amend
AS 38.35.200(a) - explained that the language stipulating that
an objection to a right-of-way lease must be raised within the
later of either 60 days after the effective date of the bill, or
60 days after the publication of notice under AS 38.35.070, was
included in order to address the fact that the Alaska Gasline
Development Corporation (AGDC) has already applied for a
pipeline right-of-way under [the existing statute], and the
sponsor wanted to ensure that parties weren't precluded from
raising an objection under the proposed judicial-review
provisions just because the period for raising an objection
under the existing provisions had lapsed. This language would
provide such parties with the ability to raise an objection
anytime during the 60 days after the effective date of the bill.
REPRESENTATIVE PRUITT removed his objection to the motion to
adopt Amendment 2.
CHAIR GATTO, after ascertaining that there were no further
objections, announced that Amendment 2 was adopted.
1:12:06 PM
RUTH HAMILTON HEESE, Senior Assistant Attorney General,
Environmental Section, Civil Division (Juneau), Department of
Law (DOL), indicating that she was representing the DEC, relayed
that Amendment 2 addresses her client's concern regarding state
primacy.
1:12:42 PM
JOHN HUTCHINS, Assistant Attorney General, Oil, Gas & Mining
Section, Civil Division (Juneau), Department of Law (DOL),
indicating that he was representing the Department of Natural
Resources' office of State Pipeline Coordinator, relayed that
his client is generally supportive of HB 215. In response to
questions, he confirmed that [with the adoption of Amendment 1,
existing AS 38.35.200(b)] would remain unchanged, and what has
become proposed AS 38.35.200(c) would pertain to intrastate
natural gas pipelines - but not just to their right-of-ways -
with the Alaska Superior Court having exclusive jurisdiction -
but none to issue an injunction before the issuance of a final
judgment. He offered his understanding that AS 38.35 sets out
the criteria for what could constitute an intrastate pipeline,
and that [the bill] would apply in situations involving a right-
of-way lease granted under AS 38.35. In response to further
questions, he surmised that if the Alaska Superior Court
ultimately determines that the state official responsible for a
particular permitting decision was incorrect, then an injunction
would be needed to "unwind" whatever had been done since that
permitting decision was made.
MS. HAMILTON HEESE concurred.
REPRESENTATIVE HOLMES noted that AS 38.35.020 says in part:
(a) Rights-of-way on state land including rights-of-
way over, under, along, across, or upon the right-of-
way of a public road or highway or the right-of-way of
a railroad or other public utility, or across, upon,
over, or under a river or other body of water or land
belonging to or administered by the state ....
MR. HUTCHINS, in response to questions, offered his belief that
proposed AS 38.35.200(c) wouldn't constitute a violation of the
separation of powers doctrine, and wouldn't amend a court rule.
He acknowledged, however, that he still has some uncertainty
regarding the latter point. In response to comments, he
explained that a court has equitable powers to unwind actions
that have been taken, so although the court can't issue an
injunction to restrain something that has already been done, it
can craft satisfactory relief.
REPRESENTATIVE GRUENBERG pointed out, though, that if an
objection were to be raised in order to protect a stream, for
example, and the case goes on for a while, by the time the court
is finally allowed under the bill to issue an injunction, it
could be too late to protect that stream because the damage
would have already been done.
MR. HUTCHINS surmised that if the legislature wants to ensure
that the court does have the ability to issue an injunction in
situations where there is the possibility of irreparable harm
occurring, the [proposed] statute would need to be changed.
REPRESENTATIVE GRUENBERG said he is concerned about how long it
could be before the court would have jurisdiction under the bill
to address such harm via an injunction.
MR. HUTCHINS mentioned that the court could issue a final
judgment, and thus also an injunction, in the initial case,
before any appeal. In response to a question, he indicated that
that's his interpretation of the proposed language in Section 6
that reads, "except in conjunction with a final judgment on a
claim filed under this subsection, the superior court may not
grant injunctive relief". In response to another question, he
offered his belief that there aren't any constitutional problems
with that provision, but agreed to research the issue further.
REPRESENTATIVE KELLER suggested that the bill be moved from
committee and any problems with it be dealt with when it's heard
on the House floor.
REPRESENTATIVE GRUENBERG relayed that he didn't want to delay
the bill, but is troubled by its proposal to limit the court's
ability to grant injunctive relief.
1:35:01 PM
MERRICK PEIRCE, Chief Financial Officer (CFO); Member, Board of
Directors, Alaska Gasline Port Authority (AGPA), indicating that
his organization is proposing an intrastate natural gas pipeline
project, expressed concern that along with other pieces of
legislation, HB 215 appears to be intended to foster a competing
intrastate natural gas pipeline project - one, he opined, that
wouldn't be in the best interest of Alaska - and relayed that he
is therefore skeptical of any effort to limit judicial review
for such a project. He also offered his understanding of what
that competing intrastate natural gas pipeline project would and
would not entail compared to the one his organization is
proposing, and advice regarding what a successful project should
entail. In conclusion, he indicated a preference that the bill
not be moved from committee.
REPRESENTATIVE PRUITT offered his belief that with regard to
intrastate natural gas pipelines, it would be in the best
interest of Alaska for its options to be left open.
CHAIR GATTO characterized HB 215 as being part of the solution
for Alaska's future.
REPRESENTATIVE THOMPSON, pointing out that the bill isn't
stipulating that a particular route be used, opined that HB 215
would benefit any and all pipelines.
CHAIR GATTO, after ascertaining that no one else wished to
testify, closed public testimony on HB 215.
REPRESENTATIVE GRUENBERG said that he supports the bill strongly
but just wants to be sure that it is doesn't violate the
constitution, and relayed that he would therefore continue
working with the sponsor and the DOL to address his concerns.
1:46:46 PM
REPRESENTATIVE THOMPSON moved to report the proposed CS for
HB 215, Version 27-LS0741\I, Bullock, 4/5/11, as amended, out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, CSHB 215(JUD) was
reported from the House Judiciary Standing Committee.
The committee took an at-ease from 1:47 p.m. to 1:49 p.m.
SB 31 - COUNTING OF WRITE-IN VOTES
1:49:33 PM
CHAIR GATTO announced that the final order of business would be
CS FOR SENATE BILL NO. 31(JUD), "An Act relating to the counting
of write-in votes." [Before the committee was HCS
CSSB 31(STA).]
1:49:58 PM
SENATOR JOE THOMAS, Alaska State Legislature, as one of the
joint prime sponsors, explained that SB 31 would clarify
Alaska's statutes by utilizing language recommended by the
Alaska Supreme Court in its recent Miller v. Treadwell decision;
this language has been "reinforced" by the Alaska Superior Court
and the U.S. District Court, and in the 2010 General Election
Review conducted by the Office of the Lieutenant Governor. He
offered his understanding that the bill's proposed language
comes from the federal Uniformed and Overseas Citizens Absentee
Voting Act (UOCAVA), and that it specifies that the director of
the Division of Elections shall use a determination of a voter's
intent as the guiding principle when counting and judging a
write-in ballot and its validity. Senate Bill 31 incorporates
into statute the concept of favoring voter intent, which
Alaska's courts have done consistently for over 50 years. The
goal of clarifying Alaska's statutes on this issue is twofold:
one, to ensure that in future elections, as many Alaskans as
possible are enfranchised; and two, to strengthen the perception
of Alaska's democratic process. Achieving this goal, and using
inclusive rather than exclusive statutory language, will protect
the fundamental democratic rights of all voting Alaskans
regardless of their backgrounds, abilities, or skills.
1:51:45 PM
SENATOR THOMAS indicated that in Miller, the court focused on
the language of existing AS 15.15.360(a)(11), which says:
(11) A vote for a write-in candidate, other than
a write-in vote for governor and lieutenant governor,
shall be counted if the oval is filled in for that
candidate and if the name, as it appears on the write-
in declaration of candidacy, of the candidate or the
last name of the candidate is written in the space
provided.
SENATOR THOMAS, mentioning that the challenge which was raised
pertained to whether that language meant that the name of a
write-in candidate must be written exactly as it appears on the
candidate's declaration of candidacy, pointed out that the only
declaration of candidacy he has ever seen has been his own. [To
address what the court considered to be an ambiguity in statute
with regard to minor misspellings of write-in candidates' names,
and] in keeping with the court's determination in Miller, [the
bill - via Section 1's proposed new AS 15.15.360(d)(5) -
stipulates that in counting votes for a write-in candidate, if
the intention of the voter can be ascertained, the director of
the Division of Elections shall disregard any abbreviation,
misspelling, or other minor variation in the form of the name of
a candidate]. He offered his understanding that it is the
intent of the Division of Elections to also address [the
purported ambiguity] by providing [to voters] a list of the
names of write-in candidates; this, he ventured, would
substantially reduce the number of potential misspellings to
begin with, though it won't eliminate them altogether.
SENATOR THOMAS, in conclusion, posited that although [the bill]
won't prevent future legal challenges regarding write-in
candidates from being raised, it does clarify the law and
constitutes a move forward in the direction the courts have been
taking for over the last 50 years.
REPRESENTATIVE LYNN asked whether just providing the name of a
write-in candidate but not also filling in the oval on the
ballot would be sufficient to determine voter intent.
SENATOR THOMAS indicated that the Division of Elections could
better address that question.
1:55:41 PM
GRIER HOPKINS, Staff, Senator Joe Thomas, Alaska State
Legislature, on behalf of Senator Thomas, one of SB 31's joint
prime sponsors, explained that Section 1 - which would add a new
subsection (d)(1)-(5) to AS 15.15.360 - addresses the counting
of write-in votes and [subsequent] determinations by the
division director regarding voter intent. Specifically,
proposed new subsection (d)'s paragraphs (1)-(4) contain [along
with some clarifying editorial changes] the provisions of
existing AS 15.15.360(a)(9)-(12), which address write-in
candidates/votes and which would be repealed via SB 31's
Section 3, thereby leaving the remaining provisions of
AS 15.15.360(a) - those being paragraphs (1)-(8) - to address
the marking/counting of standard ballots. Section 2 of SB 31
provides for a proposed new AS 15.15.365, which would
statutorily address the issue of counting write-in votes in a
general election; the language in proposed AS 15.15.365(a)-(e)
mirrors the regulatory language in 6 AAC 25.085.
MR. HOPKINS explained that Section 2's proposed AS 15.15.365(a)
addresses the trigger for counting write-in ballots, adding his
understanding that the Division of Elections doesn't count
write-in ballots unless there is a legitimate [likelihood] that
those ballots could change the outcome of the election. [Under
both existing and proposed AS 15.15.360,] the oval must be
filled in [as specified in AS 15.15.360(a)(1) regardless of
whether a person is voting for a write-in candidate or a
candidate whose name is already on the ballot; this is] because
it's the filled in oval which registers with the voting machine
as a cast vote. He then offered his understanding that under
proposed AS 15.15.365(a)(1)-(2), in order for any write-in votes
to be counted, there must be more total votes cast for all
write-in candidates than for any other candidate, or the
difference between the total write-in votes cast and the number
of votes cast for the leading candidate must be less than
.5 percent. He mentioned that the remainder of Section 2,
proposed AS 15.15.365(b)-(e), addresses the time and place for
counting write-in ballots.
REPRESENTATIVE GRUENBERG [although HCS CSSB 31(STA) was already
properly before the committee] moved to adopt HCS CSSB 31(STA)
as the working document.
REPRESENTATIVE HOLMES objected for the purpose of discussion.
[Although the objection was never removed, the committee treated
HCS CSSB 31(STA) as having been adopted as the working
document.]
2:01:16 PM
MR. HOPKINS, in response to a question, indicated that due to a
change made in the bill's prior committee of referral, proposed
AS 15.15.365(c) and (e) together now stipulate, respectively,
that if the requirements of subsection (a) have been met, the
director of the Division of Elections shall establish the date
for counting the write-in votes, and the director - or his/her
designee - shall count all write-in ballots [under the rules
outlined in proposed AS 15.15.360(d)]; and that those write-in
ballots shall be counted - by the director or his/her designee -
in a public place at the location where write-in ballots are
sent to be counted after an election. This change is intended
to provide for a more secure ballot-transfer process; proposed
AS 15.15.365(e) would eliminate the need for those ballots to be
transferred again, thereby mitigating the risk of damage, loss,
or tampering. Currently, after all the voting precincts across
the state tally their results, all of the ballots are sealed and
shipped to the director's office in Juneau.
REPRESENTATIVE GRUENBERG offered his understanding that
Section 2's proposed AS 15.15.365 could apply to any "write-in
election."
MR. HOPKINS concurred.
REPRESENTATIVE GRUENBERG questioned whether, in situations
involving a local election, the language of proposed
AS 15.15.365(e) would provide the division with the flexibility
to ship the write-in ballots back to that local precinct for
counting.
MR. HOPKINS indicated that such could occur after the timeframe
currently provided for absentee ballots to arrive at the
director's office in Juneau. In response to a question, he
offered his understanding that ballots arriving after the
deadline are only counted if a recount is authorized. In
response to further questions and comments, he concurred that
[under both existing and proposed AS 15.15.360,] writing in the
name of a candidate whose name is already printed on the ballot
would not invalidate that write-in vote unless it is determined
that the ballot was so marked for the purpose of identifying it
later on; and reiterated that [under both existing and proposed
AS 15.15.360,] the oval must be filled in as specified in
AS 15.15.360(a)(1) [regardless of whether a person is voting for
a write-in candidate or a candidate whose name is already on the
ballot, because it's the filled in oval which registers with the
voting machine as a cast vote,] and that before any write-in
votes are counted, the criteria outlined in proposed
AS 15.15.365(a)(1)-(2) must be met. He added that in Miller,
the court upheld the statute requiring the oval to be filled in.
2:14:36 PM
MR. HOPKINS mentioned that page 21 of the aforementioned 2010
General Election Review contains a specific reference to SB 31,
and that when crafting the latest version of the bill, Senator
Thomas worked closely with the Division of Elections. In
response to a question, he concurred that SB 31 would codify the
court's ruling in Miller regarding voter intent; relayed that
all the courts which got involved in that case are urging that
the existing statutes pertaining to write-in votes be clarified;
and mentioned that members' packets include a handout containing
quotes from those various courts. In response to a question
regarding how voter intent would be ascertained by the director
under proposed AS 15.15.360(d)(5), he offered his understanding
of the process used by the Division of Elections when the write-
in votes for Alaska's 2010 U.S. Senate race were counted, and
indicated that ultimately, if a race's write-in ballot results
are challenged, it would be the court that would determine the
correctness of the director's decisions regarding voter intent.
2:23:26 PM
GAIL FENUMIAI, Director, Central Office, Division of Elections,
Office of the Lieutenant Governor, in response to further
questions, provided more details regarding the process used by
the division when it counted the write-in ballots for Alaska's
2010 U.S. Senate race.
MR. HOPKINS reiterated that in Miller, the challenge raised was
whether the language of [existing AS 15.15.360(a)(11)] means
that the name of a write-in candidate has to be written exactly
as it appears on the candidate's declaration of candidacy; the
court ruled that it did not, surmising that if the legislature
had intended differently, it would not have used the word,
"appears" in [existing paragraph (11)]. Senate Bill 31 is
intended to rectify this purported ambiguity in existing
statute, but won't preclude someone from challenging the results
of a write-in election. He mentioned that no state requires the
exact spelling of a write-in candidate's name, and ventured that
to do so, even in part, would raise a number of implementation
issues.
MS. FENUMIAI, in response to comments and questions, said that
the law is very clear that the oval must be filled in, and that
the court has agreed with the division's interpretation of that
law.
MR. HOPKINS mentioned that AS 15.15.360(a)(1) says:
(1) A voter may mark a ballot only by filling in,
making "X" marks, diagonal, horizontal, or vertical
marks, solid marks, stars, circles, asterisks, checks,
or plus signs that are clearly spaced in the oval
opposite the name of the candidate, proposition, or
question that the voter desires to designate.
2:35:16 PM
REPRESENTATIVE THOMPSON moved to report HCS CSSB 31(STA) out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, HCS CSSB 31(STA) was
reported from the House Judiciary Standing Committee.
2:35:49 PM
ADJOURNMENT
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 2:35 p.m.
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