Legislature(1993 - 1994)
02/07/1994 01:15 PM House JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
February 7, 1994
1:15 p.m.
MEMBERS PRESENT
Rep. Brian Porter, Chairman
Rep. Pete Kott (arrived 1:30 p.m.)
Rep. Gail Phillips
Rep. Joe Green
MEMBERS ABSENT
Rep. Jeannette James, Vice Chair
Rep. Jim Nordlund
Rep. Cliff Davidson
OTHER LEGISLATORS PRESENT
Rep. Al Vezey
COMMITTEE CALENDAR
HB 47: "An Act relating to the delivery of the primary
ballots to persons making application for them
when, by operation of political party rule, two or
more primary ballots must be provided to the
public."
HEARD AND HELD OVER FOR FURTHER ACTION
HJR 48: Proposing amendments to the Constitution of the
State of Alaska relating to revenue from natural
resources, the Alaska permanent fund, the
appropriation limit and the budget reserve fund;
and providing for an effective date for the
amendments.
NOT HEARD - PULLED FROM THE CALENDAR AS IT WAS
PREVIOUSLY ASSIGNED TO A SUBCOMMITTEE
WITNESS REGISTER
TOM ANDERSON
Legislative Aide
Representative Terry Martin's Office
Alaska State Legislature
Capitol Building, Room 411
Juneau, Alaska 99811
Phone: 465-3783
POSITION STATEMENT: Testified on behalf of Rep. Terry
Martin, Prime Sponsor of HB 47
JOE SWANSON, Director
Division of Elections
Office of the Lieutenant Governor
P.O. Box 110017
Juneau, Alaska 99811
Phone: 465-4611
POSITION STATEMENT: Testified against HB 47
VIRGINIA RAGLE
Assistant Attorney General
General Civil Section
Department of Law
P.O. Box 110300
Juneau, Alaska 99811
Phone: 465-3600
POSITION STATEMENT: Answered questions regarding HB 47
JACK CHENOWETH
Legislative Legal Counsel
Division of Legal Services
Legislative Affairs Agency
130 Seward Street
Juneau, Alaska 99801
Phone: 465-2450
POSITION STATEMENT: Answered questions regarding HB 47
PREVIOUS ACTION
BILL: HJR 48
SHORT TITLE: RESTRUCTURE PERMANENT FUND
SPONSOR(S): FINANCE
JRN-DATE JRN-PG ACTION
01/11/94 2032 (H) READ THE FIRST TIME/REFERRAL(S)
01/11/94 2032 (H) JUDICIARY, FINANCE
02/02/94 (H) JUD AT 01:15 PM CAPITOL 120
02/04/94 (H) JUD AT 01:15 PM CAPITOL 120
02/04/94 (H) MINUTE(JUD)
02/07/94 (H) JUD AT 01:15 PM CAPITOL 120
BILL: HB 47
SHORT TITLE: ABSENTEE BALLOTS - PRIMARY ELECTIONS
SPONSOR(S): REPRESENTATIVE(S) MARTIN
JRN-DATE JRN-PG ACTION
01/12/93 43 (H) READ THE FIRST TIME/REFERRAL(S)
01/12/93 43 (H) STATE AFFAIRS,JUDICIARY,FINANCE
01/28/93 (H) STA AT 08:00 AM CAPITOL 102
01/30/93 (H) STA AT 08:00 AM CAPITOL 102
01/30/93 (H) MINUTE(STA)
02/04/93 (H) STA AT 08:00 AM CAPITOL 102
02/06/93 (H) STA AT 08:00 AM CAPITOL 102
02/06/93 (H) MINUTE(STA)
02/09/93 (H) STA AT 08:00 AM CAPITOL 102
02/11/93 (H) MINUTE(STA)
02/13/93 (H) STA AT 08:00 AM CAPITOL 102
02/18/93 (H) STA AT 08:00 AM CAPITOL 102
02/18/93 (H) MINUTE(STA)
03/02/93 (H) STA AT 08:00 AM CAPITOL 102
03/02/93 (H) MINUTE(STA)
03/04/93 (H) STA AT 08:00 AM CAPITOL 102
03/04/93 (H) MINUTE(STA)
03/05/93 540 (H) STA RPT CS(STA) NEW TITLE
3DP 4NR
03/05/93 540 (H) DP: VEZEY, SANDERS, KOTT
03/05/93 540 (H) NR: ULMER, B.DAVIS, OLBERG,
G.DAVIS
03/05/93 540 (H) -FISCAL NOTE (GOV) 3/5/93
03/05/93 540 (H) REFERRED TO JUDICIARY
02/07/94 (H) JUD AT 01:15 PM CAPITOL 120
ACTION NARRATIVE
TAPE 94-19, SIDE A
Number 000
CHAIRMAN PORTER called the House Judiciary Standing
Committee to order at 1:27 p.m. on February 7, 1994. With
the arrival of Representative Kott at 1:30 p.m. a quorum was
present.
CHAIRMAN PORTER announced that HJR 48 had been assigned to a
subcommittee and would be taken up at later date. He then
called for testimony on HB 47.
CSHB 47(STA) - "An Act relating to primary elections and to
the delivery of the primary ballots to persons making
application for them when, by operation of political party
rule, two or more primary ballots must be provided to the
public."
Number 024
TOM ANDERSON, Legislative Aide to Rep. Terry Martin, Prime
Sponsor of HB 47, testified that HB 47 was introduced in
response to the 1992 election, in which Rep. Martin's
constituency found a problem with the absentee voter
procedure. He stated this was a result of the way the law
read due to Zawacki v. State in which the chairman of the
Republican Party, Connie Zawacki, through the central
committee decision of the Republican Party, tried to close
the primary only to Republican affiliated voters for the
Republican ticket. Mr. Anderson explained the result of the
court case was that the state had a hybrid closed primary in
which those registered as Republican, non-affiliated, or
independent, could vote the Republican ballot, and others
registered as any other affiliation could not.
MR. ANDERSON went on to explain that as far as the statutory
ballot was concerned, which was considered the primary
ballot, any affiliation could vote for that ballot.
However, on that ballot only those registered as Alaska
Independent Party, Democratic Party and Green Party
candidates were listed. He said the result was that if an
individual was not a Republican or non-declared, he or she
could not vote the Republican ballot.
Mr. ANDERSON said the problem arose when absentee voters
applied for their absentee voter application, and when they
sent back their application to the Division of Elections and
failed to mark which ballot they wanted, they would
automatically, by emergency regulation, be sent the
statutory ballot. Mr. Anderson explained that this, in
essence, disenfranchised Republican, non-affiliated and
independent voters that wanted to vote for Republican
candidates.
Number 097
MR. ANDERSON said CSHB 47 addresses this by stating that if
an individual fails to mark down what ballot they want, the
division would send all ballots, and in this case the
Republican and statutory ballot, and then they would be
required to mark one and send both back to the Division of
Elections.
Number 133
REP. PHILLIPS asked Mr. Anderson why the individual would
have to send back both ballots.
Number 138
MR. ANDERSON replied he presumed accountability was a
factor, and there was a potential for fraud.
Number 147
REP. GREEN asked if further confusion would be created by
sending both ballots?
Number 160
MR. ANDERSON responded that Rep. Martin believes that the
need to have this legislation outweighs the potential
confusion, and further, the confusion that occurred in the
1992 primary should be alleviated somewhat by plans by the
Division of Elections to do a better job of explaining the
changes in the next election.
Number 193
JOE SWANSON, Director, Division of Elections (Elections),
Office of the Lieutenant Governor, testified against HB 47,
citing the following reasons for the division's opposition:
* it would be extremely difficult to maintain the
integrity of the elections process with multiple
ballots being sent to a voter;
* the difficulty and cost of programming the ballot
tabulation system to accommodate the rotation and
cross-ballot counting the bill requires;
* the cost, nearly $1 million, to create as many a five
ballots from which each voter would select one;
* the disillusionment and confusion of the voters when
asked to select one of many ballots at the polls; and
* the difficulty in training poll workers, especially in
remote areas, on how to explain the multiple ballot
process to voters in such a way that the voter is not
confused and/or votes the wrong ballot.
MR. SWANSON described various scenario's whereby individuals
could make mistakes due to the confusion of multiple ballots
that could jeopardize a close election, or the integrity of
the election, which could result in court cases. He said
the Elections feels the solution is to send one ballot - the
statutory ballot.
Number 281
REP. PHILLIPS asked Mr. Swanson what Elections would do in
the case, hypothetically, if either four or five parties had
closed primaries and Elections was forced to send five
ballots if the individual didn't mark which ballot he or she
wanted, and there was no statutory ballot. She continued,
saying Mr. Swanson's contention that it would cost $1
million to pay for HB 47 would not be a valid argument
because, by law, they would have to prepare that number of
ballots anyway.
MR. SWANSON responded that the $1 million deals with the
second part of the legislation, which authorizes the
different parties to do closed primaries, and as each party
asks for a separate ballot, Elections' cost increment is
about $309,000 per additional ballot. Mr. Swanson discussed
what would happen if Elections sent out an application for
absentee voting with four or five ballots to choose from and
the individual did not mark a choice, then they would do
everything they could to contact the individual through
telephoning, mail, and checking their registration, so that
person could have the ballot of their choice. He said,
regardless, he would still oppose sending out four of five
ballots to anyone because of the accountability problem.
Number 345
REP. GREEN asked how other states handle absentee balloting
in closed primaries.
Number 362
MR. SWANSON replied he didn't know, but Elections is trying
to simplify instructions for the next elections.
Number 393
REP. GREEN noted that Alaska had closed primaries in the
past and then changed to open primaries, and asked how
closed primaries were handled in the past.
Number 404
MR. SWANSON said he believed it was different in the past,
because Alaska had significantly fewer independents and
number of candidates.
Number 419
CHAIRMAN PORTER asked to see a copy of the form for voter
absentee ballot applications, and asked if it would be
enhanced and easier for voters to understand.
Number 428
MR. SWANSON said he would provide a copy of the form to the
committee, and said everything is being changed and
simplified.
Number 439
CHAIRMAN PORTER asked, if the committee were to pass HB 47,
there is a section on page 3, line 7, which if in place, and
Elections received back both ballots, on line 7 it says the
director shall make the determination of appropriateness of
the primary ballots on the basis of voter registration
documents, and asked Mr. Swanson how he would interpret
that.
Number 461
MR. SWANSON said his interpretation of that is the
appropriateness would be in the party rules, which would
determine which person is eligible for which ballot,
therefore they would look at party registration.
REP. PHILLIPS said she could see a problem in that if the
individual included a voter registration change with the
balloting request in order to get a Republican ballot, and
Elections looked at past voter affiliation, and if it was
Democrat, you would not send the Republic ballot.
Number 478
MR. SWANSON indicated the way the process works now, when
they get the absentee ballot in the region and it comes back
to the region, Election's looks at the cover to see that
everything is there, and if there is a change, then the
change is made immediately, and although there are no
guarantees, he doesn't think it would be a problem.
Number 521
Discussion regarding changing party affiliation up to the
day of the election and the impact on absentee ballots
continued. The question remained unresolved.
Number 544
VIRGINIA RAGLE, Assistant Attorney General, General Civil
Section, Department of Law, responded to an earlier question
about how other states handle closed primaries and said that
the fact is, other states don't have anything like this, and
with the Republic rule, Alaska now has a hybrid primary, a
partially closed primary. She explained that almost all
other states have either classic open, where an individual
goes to the polling place and chooses which ballot they
want, or closed primaries, where if you are registered
Republican you get the Republican ballot, and if you are
Democrat you get the Democratic ballot, and in most cases if
you are an independent you don't get to vote in the primary.
Ms. Ragle said the purpose of the primary is to elect the
nominees for the party, so if you are independent you are
not involved in the primary election.
MS. RAGLE addressed the question of the director's duty to
send absentee ballots and said under HB 47 the director
would have to send all the ballots to the person, regardless
of party registration, because they have the opportunity to
change their registration the day they vote, unless the bill
was amended to designate changing party affiliation no later
that 30 days before the election.
MS. RAGLE referred to the Lt. Governor's recognition of this
problem of having to implement party rules by putting them
in statute, because he didn't feel he had the authority to
implement emergency regulations without a court order or a
statute. She indicated the Lt. Governor's preference to
have the rules put in statute in order to make the public
more comfortable with the fact that political parties have
the right, essentially, to abrogate state law to have rules
implemented that are not in accordance with state law in
certain circumstances.
Number 625
CHAIRMAN PORTER asked what portion of HB 47 would the Lt.
Governor find helpful, assuming he does not want to send out
multiple ballots.
MR. SWANSON replied Sections 3 and 4.
MS. RAGLE pointed out that in Section 1 of the bill the Lt.
Governor and Division of Elections have gone ahead and
adopted permanent regulations to implement this as well.
She added that since there is no provision in state statute
for the Republican ballot being separate from the statutory
ballot, they felt there was no authority under state law to
send anybody a Republican ballot unless they asked for it.
Ms. Ragle suggested HB 47 could be amended to allow for
registered Republicans to get the Republican ballot.
Number 654
CHAIRMAN PORTER noted that there probably weren't any other
states that had 60 percent of their registered voters as
independents, which would fall outside of that ability to
designate.
Number 663
REP. PHILLIPS referred to language in HB 47 directing the
director in the absence of any other indication to send the
voter the statutory ballot and asked if this language would
leave the state liable.
Number 676
MS. RAGLE interpreted it as doing the opposite, and said
that by sending the statutory ballot, we are complying as
closely as possible to existing state law. She said the
Republican party ballot was the aberration here, it's the
one not provided for under state law, but they are doing it
because they have to under constitutional precedent.
Number 686
JACK CHENOWETH, Legislative Legal Counsel, Division of Legal
Services, Legislative Affairs Agency, said when this
situation first came about, an alternative occurred to him
that Elections could look at the best record they have on
the applicant's registration, and if party affiliation was
clear, say Republican, then that's the ballot they ought to
have, and only if Elections could not tell which ballot the
applicant would be entitled to, they should then rely on the
default of the statutory ballot. Mr. Chenoweth said that is
not what the sponsor wants; however, the legislation should
not put a great burden on the Division of Elections. He
said he did not think it would be a great burden to look up
a person's registration, and if the applicant hasn't checked
which ballot he or she wants and they are registered
Republican, then that's the ballot they ought to get. Mr.
Chenoweth said only if the Division of Elections could not
tell from the registration should they then fall back on the
statutory ballot.
Number 725
REP. PHILLIPS suggested that the solution might be to add a
statement saying if an individual has not marked which
ballot they want, but they have a history of being a
Republican, then they should get the Republican ballot,
otherwise, they get the statutory ballot.
Number 753
MR. CHENOWETH suggested language putting more of the burden
on the individual requesting the ballot.
MR. SWANSON indicated the division would like to have in
statute that to meet the requirements you have to change
your registration 30 days ahead of time, not on the day of
the election, in order for the division to have their
records complete, so they can then check their registration
in order to send Republican ballots to registered
Republicans. He said they would also, at that stage, prefer
to send anyone but Republicans the statutory ballot if they
did not mark a preference.
Number 785
The committee discussed registration requirements and adding
a 30 day registration requirement prior to the primary
election. The committee members decided to pursue and
debate changing the registration requirement to 30 days.
TAPE 94-19, SIDE B
Number 075
CHAIRMAN PORTER asked Mr. Chenoweth to include the 30 day
provision in the next draft of HB 47.
Number 080
MR. CHENOWETH recommended the committee keep in mind that
the August primary was fast approaching and asked the
committee to either put an immediate effective date or a
July 1, 1994, effective date or a January 1, 1995, effective
date on the bill in order to avoid problems in the upcoming
primary.
Number 114
MS. RAGLE also reminded the committee that Alaska is one of
the states that has to have any election changes pre-cleared
by the Justice Department before we can implement them, and
they have 60 days after we submit to them to render a
decision, so she recommended an immediate effective date in
order to implement this before the next primary.
Number 132
CHAIRMAN PORTER said if for some reason the effective date
didn't get 27 votes for an immediate effective date, then it
would not go into effect for 90 days. He asked if it was
possible to construct it so that if the effective date fails
it becomes effective January 1, 1995.
Number 143
MR. CHENOWETH said any date other than the 90 days
constitutionally requires a two-thirds vote, so the only
thing they can do is put dates in the substantive provision
of the bill.
Number 168
CHAIRMAN PORTER said the committee would be getting a
committee substitute with the effective date in substantive
language, also changing findings and intent to put in the
proper reference that it is a regular regulation, not an
emergency, the 30 day requirement, and would change the
section where the director would provide to a registered
voter who has failed to indicate his or her preference of a
primary ballot, the primary ballot for the party for which
he or she is registered, unless an independent, and in that
case it would have to be the statutory ballot.
Number 208
REP. VEZEY asked if it would be constitutional to limit
changing party affiliation to 30 days prior to the election,
and suggested instead language saying the director's
decision on the ballot would be based on how the individual
was registered within 30 days of the elections.
Number 230
MS. RAGLE indicated that requiring a person to register or
change party affiliation 30 days prior to an election is not
a burden and should pass constitutional muster.
Number 260
The committee continued discussing the proposed 30 day rule.
Number 428
CHAIRMAN PORTER directed Mr. Chenoweth, in consultation with
Ms. Ragle, to draft a committee substitute addressing what
the committee discussed, including a reasonable 30 day
requirement if they determine it is feasible to do so.
Chairman Porter said he would then reschedule the bill for
another hearing.
ADJOURNMENT
CHAIRMAN PORTER adjourned the meeting at 2:37 p.m.
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