03/21/2005 02:29 PM House JUD
| Audio | Topic |
|---|---|
| Start | |
| HB136 | |
| HB116 | |
| HB94 | |
| Adjourn |
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 21, 2005
2:29 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson
Representative John Coghill
Representative Nancy Dahlstrom
Representative Pete Kott
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 136
"An Act restricting the authority of a court to suspend
execution of a sentence or grant probation in prosecutions for
driving while under the influence and prosecutions for refusal
to submit to a chemical test; and allowing a court to suspend up
to 75 percent of the minimum fines required for driving while
under the influence and for refusal to submit to a chemical test
if the defendant successfully completes a court-ordered
treatment program."
- MOVED HB 136 OUT OF COMMITTEE
HOUSE BILL NO. 116
"An Act relating to the liability of certain persons for entry
and remaining on licensed premises."
- MOVED CSHB 116(JUD) OUT OF COMMITTEE
HOUSE BILL NO. 94
"An Act relating to qualifications of voters, requirements and
procedures regarding independent candidates for President and
Vice-President of the United States, voter registration and
voter registration records, voter registration through a power
of attorney, voter registration using scanned documents, voter
residence, precinct boundary and polling place designation and
modification, recognized political parties, voters unaffiliated
with a political party, early voting, absentee voting,
application for absentee ballots through a power of attorney, or
by scanned documents, ballot design, ballot counting, voting by
mail, voting machines, vote tally systems, initiative,
referendum, recall, and definitions in the Alaska Election Code;
relating to incorporation elections; and providing for an
effective date."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 136
SHORT TITLE: DRUNK DRIVING TREATMENT PROGRAM
SPONSOR(S): REPRESENTATIVE(S) ROKEBERG
02/09/05 (H) READ THE FIRST TIME - REFERRALS
02/09/05 (H) JUD, FIN
03/21/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 116
SHORT TITLE: MINORS ON LICENSED PREMISES
SPONSOR(S): REPRESENTATIVE(S) MEYER
01/28/05 (H) READ THE FIRST TIME - REFERRALS
01/28/05 (H) STA, JUD
03/01/05 (H) STA AT 8:00 AM CAPITOL 106
03/01/05 (H) Moved CSHB 116(STA) Out of Committee
03/01/05 (H) MINUTE(STA)
03/02/05 (H) STA RPT CS(STA) NT 3DP 2DNP 1AM
03/02/05 (H) DP: GARDNER, GATTO, SEATON;
03/02/05 (H) DNP: RAMRAS, ELKINS;
03/02/05 (H) AM: GRUENBERG
03/21/05 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 94
SHORT TITLE: ELECTIONS
SPONSOR(S): RULES BY REQUEST OF THE GOVERNOR
01/21/05 (H) READ THE FIRST TIME - REFERRALS
01/21/05 (H) STA, JUD, FIN
02/03/05 (H) STA AT 8:00 AM CAPITOL 106
02/03/05 (H) Heard & Held
02/03/05 (H) MINUTE(STA)
02/08/05 (H) STA AT 8:00 AM CAPITOL 106
02/08/05 (H) Heard & Held
02/08/05 (H) MINUTE(STA)
02/10/05 (H) STA AT 8:00 AM CAPITOL 106
02/10/05 (H) Heard & Held
02/10/05 (H) MINUTE(STA)
02/17/05 (H) STA AT 8:00 AM CAPITOL 106
02/17/05 (H) Heard & Held
02/17/05 (H) MINUTE(STA)
02/19/05 (H) STA AT 10:00 AM CAPITOL 106
02/19/05 (H) Bill Hearing Canceled
03/08/05 (H) STA AT 8:00 AM CAPITOL 106
03/08/05 (H) Heard & Held
03/08/05 (H) MINUTE(STA)
03/15/05 (H) STA AT 8:00 AM CAPITOL 106
03/15/05 (H) Moved CSHB 94(STA) Out of Committee
03/15/05 (H) MINUTE(STA)
03/18/05 (H) STA RPT CS(STA) NT 3DP 2NR
03/18/05 (H) DP: GATTO, GRUENBERG, SEATON;
03/18/05 (H) NR: GARDNER, LYNN
03/21/05 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
HEATHER NOBREGA, Staff
to Representative Norman Rokeberg
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented HB 136 on behalf of the sponsor,
Representative Rokeberg.
DOUG WOOLIVER, Administrative Attorney
Administrative Staff
Office of the Administrative Director
Alaska Court System (ACS)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 136, responded to
questions and expressed the ACS's support for the provisions
that serve as incentives for people to participate in
therapeutic court programs.
JAMES N. WANAMAKER, Director
Alaska Center for Therapeutic Justice
Partners for Progress, Inc. (PFP)
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 136, provided
comments, responded to questions, and said he hopes the bill
will be reported from committee with "do pass" recommendations.
WENDY HAMILTON, Coordinator
Juneau Therapeutic Court
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
136.
MATT FELIX, Executive Director
Juneau Affiliate
National Council on Alcoholism and Drug Dependence, Inc. (NCADD)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
136 and responded to questions.
REPRESENTATIVE KEVIN MEYER
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Sponsor of HB 116.
DOUGLAS B. GRIFFIN, Director
Alcoholic Beverage Control Board ("ABC Board")
Department of Public Safety (DPS)
Anchorage, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
116.
JESSICA PARIS, Coordinator
Youth in Action
Juneau Affiliate
National Council on Alcoholism and Drug Dependence, Inc. (NCADD)
Juneau, Alaska
POSITION STATEMENT: Provided comments during discussion of HB
116.
MICHAEL PAWLOWSKI, Staff
to Representative Kevin Meyer
House Finance Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Responded to a comment during discussion of
HB 116.
LAURA A. GLAISER, Director
Central Office
Division of Elections
Office of the Lieutenant Governor
Juneau, Alaska
POSITION STATEMENT: Presented HB 94 on behalf of the
administration.
JOSEPH A. SONNEMAN, Ph.D.
Juneau, Alaska
POSITION STATEMENT: Provided comments regarding Sections 10 and
19 of HB 94, regarding two proposed amendments, and responded to
questions.
MYRL THOMPSON
Wasilla, Alaska
POSITION STATEMENT: During discussion of HB 94, provided
comments regarding possible amendments.
KEN JACOBUS
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 94, provided
comments on the bill and possible amendments, and responded to
questions.
VANESSA TONDINI, Staff
to Representative Lesil McGuire
House Judiciary Standing Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Responded to a question during discussion
of HB 94.
ACTION NARRATIVE
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 2:29:19 PM. Representatives
McGuire, Coghill, Dahlstrom, Gruenberg, and Gara were present at
the call to order. Representatives Anderson and Kott arrived as
the meeting was in progress.
HB 136 - DRUNK DRIVING TREATMENT PROGRAM
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 136, "An Act restricting the authority of a
court to suspend execution of a sentence or grant probation in
prosecutions for driving while under the influence and
prosecutions for refusal to submit to a chemical test; and
allowing a court to suspend up to 75 percent of the minimum
fines required for driving while under the influence and for
refusal to submit to a chemical test if the defendant
successfully completes a court-ordered treatment program."
2:30:08 PM
HEATHER NOBREGA, Staff to Representative Norman Rokeberg, Alaska
State Legislature, sponsor, relayed on behalf of Representative
Rokeberg that HB 136 makes three changes. One change will
require courts to impose the statutory minimum fines for driving
under the influence (DUI) convictions; currently, because courts
are not statutorily required to impose those fines, some are
suspending the fines. Another change expands the provision
regarding court ordered treatment programs so that it also
applies to felony DUI cases. And the third change increases -
from 50 percent to 75 percent - the percentage of a fine that
can be waived if a person successfully completes a court ordered
treatment program. With regard to a question about how the
minimum fine for a DUI is collected if the person doesn't have
the means to pay it, she said that the collection of fines is
handled by the Department of Law (DOL), and offered her
understanding that the DOL simply garnishes a person's permanent
fund dividend (PFD) until the fine is paid off.
REPRESENTATIVE GARA expressed a concern regarding the existing
fines, which are listed on page 2 and 3 of the bill and range
between $3000 and $7000 for repeat misdemeanor DUI convictions
and $10,000 for felony DUI convictions. He said he wonders what
kind of message is sent being sent in instances where the person
cannot afford such a fine, where the person has to choose
between paying the fine and paying for necessities. He offered
his understanding that once a person becomes a felon, he/she
isn't entitled to a PFD. He suggested that the bill be changed
to allow someone to forgo paying the fine if he/she can prove
that paying the fine would result in causing [financial] harm to
his/her family.
2:34:37 PM
MS. NOBREGA said she understands Representative Gara's concern;
however, the legislature put a lot of thought into raising the
aforementioned minimum fines to what they currently are today.
She said it's a policy call of this legislature as to whether it
wants to provide for something different. It is Representative
Rokeberg's intent, she relayed, for the courts to abide by what
is currently provided for in statute regarding minimum DUI
fines.
REPRESENTATIVE GARA questioned why it is more important for a
single parent, for example, to give money to the state rather
than buy food for his/her children.
REPRESENTATIVE DAHLSTROM said that although she is sympathetic
to the struggles that a single parent goes through, there are
natural consequences to one's choices, such as choosing to go
out and get drunk and then driving. She said she is also
sympathetic to those who've been victims of alcohol-related
crimes, however, and offered her belief that the money that
would have gone towards paying a DUI fine wouldn't have been
used to help the family anyway, and that the felony DUI fine of
$10,000 could be the wakeup call that someone needs. The
current schedule of fines can also send a message to the
children of parents who are convicted of DUI, the message that
they need to make different choices with regard to alcohol
consumption. She said that she is supportive of the current
fine schedule and that she is disappointed that the courts
haven't been enforcing those fines.
CHAIR McGUIRE asked whether a Suspended Imposition Of Sentence
(SIS) can include a suspension of the fines.
REPRESENTATIVE GARA noted that an SIS would only be granted for
a first offense and so wouldn't be granted to a person convicted
of a repeat DUI offense. He said he agrees with Representative
Dahlstrom's comments, but posited that the children of a person
convicted of a repeat DUI offense will only be noticing how long
their parent is missing from the home while serving the
mandatory minimum jail sentence.
2:39:56 PM
REPRESENTATIVE GARA reiterated his belief that there should be
some sort of "out" [for those in dire financial straits who have
families to support]; for example, a payment scheduled could be
established.
CHAIR McGUIRE said she doesn't see that the bill specifies the
terms of any possible payment agreement that could be arranged.
She asked whether the judge has the discretion to set up a
payment agreement so as not to cause unbearable hardship on a
family.
MS. NOBREGA offered her understanding that such can be done,
either through the Alaska Court System (ACS) or the DOL. With
regard to the issue of SIS, she noted that there is a chart in
members' packets containing information garnered from local
papers about SISs granted in Juneau and Nome. Referring to one
such SIS as an example, she pointed out that the person didn't
have to pay a single dollar of the mandatory minimum $10,000
fine and had two years of his/her mandatory minimum sentence
suspended. She relayed that almost everyone convicted of a DUI
in Juneau had portions of his/her sentence suspended and most,
if not all, of his/her fines suspended.
REPRESENTATIVE GARA offered his belief, however, that if the
bill says that a person has to pay the fine, even if he/she is
unable to do so, then the judge will have the authority to put
that person in jail for the remainder of his/her suspended
sentence. He opined that the committee ought to be able to
achieve the goal of having as much of the money imposed for
fines paid as possible while still statutorily allowing the
judge to set up a payment schedule. If the ability to set up a
payment schedule is already provided for in statute, he
remarked, then his concern is satisfied, but if such isn't
already provided for, then he would like to add such a provision
to HB 136.
2:44:20 PM
CHAIR McGUIRE asked Mr. Wooliver to comment regarding
Representative Gara's concern.
DOUG WOOLIVER, Administrative Attorney, Administrative Staff,
Office of the Administrative Director, Alaska Court System
(ACS), said that the only provisions of HB 136 he was prepared
to speak on were the provisions that serve as incentives for
people to participate in therapeutic court programs, which the
ACS supports because it thinks they work and save both money and
lives; those provisions include the one that allows for a
reduction in fines [when a person successfully completes a court
ordered treatment program] and the one that allows those
convicted of felony DUI to participate in therapeutic court
programs. He did relay, however, that payment schedules are
routinely set up, but they vary between judges, and that judges
also disagree amongst themselves regarding the extent to which
mandatory minimum fines can be suspended.
REPRESENTATIVE GARA asked whether, if HB 136 is adopted, judges
would retain the discretion to set up a payment schedule.
MR. WOOLIVER said yes.
REPRESENTATIVE GARA asked whether he should worry that probation
time might be turned into jail time if a person isn't able to
pay the fine on schedule.
MR. WOOLIVER said he didn't know, and suggested that others
could perhaps better address that issue.
2:46:58 PM
REPRESENTATIVE GARA referred to the Alaska Court of Appeals
opinion in Curtis V. State, and offered his understanding that
it said a person doesn't have to pay the minimum fine. He asked
whether there were any standards, such as demonstrating that one
doesn't have the ability to pay the fine, that came with that
opinion.
MR. WOOLIVER offered his understanding that the Curtis decision
basically said that mandatory minimum jail time may not be
suspended and noted that there is nothing in statute regarding a
requirement to pay a mandatory minimum fine. He said he is not
sure whether judges are interpreting that opinion differently or
whether judges are simply disagreeing with regard to whether
"it's" appropriate.
2:48:03 PM
CHAIR McGUIRE asked Mr. Wanamaker to comment on Representative
Gara's concern.
JAMES N. WANAMAKER, Director, Alaska Center for Therapeutic
Justice, Partners for Progress, Inc. (PFP), speaking as a former
judge from Anchorage's Third Judicial District, said that the
practice in Anchorage has been for the judge to set a due date
by which the fine must be paid - for example, by the end of a
year; then, if the fine is not paid by that due date, it becomes
a civil matter that is pursued by the DOL just like any other
civil judgment.
REPRESENTATIVE GARA recapped what current law allows for with
regard to fines. He asked whether the court's jurisdiction on a
misdemeanor case lasts for more than a year.
2:52:22 PM
MR. WANAMAKER indicated that although a judge could set up a due
date that goes beyond a year, that's not been the prevailing
practice.
REPRESENTATIVE GARA relayed that that offers him some comfort.
He then asked whether the bill will allow judges to use a
payment plan approach, for example, paying $100 a month until
the entire fine is paid.
MR. WANAMAKER offered that judges don't generally set up a
specific payment plan because they have so many cases and doing
so would involve too many details; typically judges just give a
date by which the fine in total is due. He said he has never
seen a petition to revoke probation for failure to pay a fine.
REPRESENTATIVE GARA asked for Mr. Wanamaker's thoughts regarding
requiring that all mandatory minimum fines be paid.
MR. WANAMAKER characterized that as a housekeeping matter,
adding that he'd always taken the view that the mandatory
minimum fines were the minimum that could be imposed and that
they had to be paid. He offered his belief that there are just
a few judges that are suspending the fines below the statutory
minimum amount.
2:55:10 PM
MR. WANAMAKER, speaking on behalf of the Alaska Center for
Therapeutic Justice, offered his understanding that Sections 3
and 6 would extend the statutes regarding therapeutic courts so
that they would apply to those convicted of felony DUIs. He
opined that the single best way to prevent the horror caused by
DUI-related accidents is to get defendants into lasting
sobriety, which has been proven to happen via the therapeutic
court model. He noted that therapeutic courts are cost
effective, and that the National Highway Traffic Safety
Administration (NHTSA) is emphasizing the funding of therapeutic
courts. He said he hopes the bill will be reported from
committee with "do pass" recommendations.
2:57:19 PM
CHAIR McGUIRE mentioned that she's seen a summary produced by
the "Scaife Family Foundation" listing the economic benefits of
drug treatment.
MR. WANAMAKER mentioned that he's seen other studies that
provide similar information.
REPRESENTATIVE GARA asked whether passage of the bill will
require judges to send someone to jail for failure to pay the
mandatory minimum fine.
MR. WANAMAKER said no, adding that the judge doesn't have the
authority to send someone to jail until a petition to revoke
probation has been filed by the district attorney, and such
isn't done, since failure to pay a fine simply becomes a civil
matter.
2:59:48 PM
WENDY HAMILTON, Coordinator, Juneau Therapeutic Court,
characterized all three of the aspects of HB 136 that Ms.
Nobrega spoke of as housekeeping measures. She opined that
extending the provision regarding therapeutic courts so that it
applies to felony DUI offenders is a much needed change, noted
that the Juneau Therapeutic Court will be handling both
misdemeanor and felony DUI offenses, and offered her belief that
felony DUI offenders are just a higher level of risk. With
regard to the bill's proposal to increase the amount of a fine
that may be waived if a person convicted of a DUI successfully
completes court ordered treatment, she posited that this
proposed change goes hand in hand with the extension of
therapeutic courts to felony DUI offenders. Successfully
completing court ordered treatment requires a lot of hard work,
she noted, and so there should be incentives for offenders to
chose that option.
MS. HAMILTON, with regard to the concern raised by
Representative Gara, said that in her experience, having worked
in the field of felony probation/parole for two and a half
years, no one has ever been sent back to jail for failure to pay
a fine; [the state] has always worked out a payment plan that an
offender is amenable to, and an offender is even allowed to miss
a payment or two before being called by his/her probation/parole
officer. She, too, mentioned that unpaid fines are eventually
turned over to the DOL for collection, even if the offender is
already off probation/parole. "Fines are one of the 'bites'
that you can have, jail and fines, and that's why that third
piece is very much needed for the second piece to work," she
concluded.
3:02:27 PM
MATT FELIX, Executive Director, Juneau Affiliate, National
Council on Alcoholism and Drug Dependence, Inc. (NCADD), relayed
that the NCADD does a lot of drug and alcohol treatment
prevention and is the recipient of the federal money that is
used to administer the Juneau Therapeutic Court in conjunction
with the ACS. He, too, characterized the changes proposed by HB
136 as cleanup language that is needed, and suggested that
therapeutic courts "fill in the gaps" and make the courts work
better by offering "a carrot" approach in addition to the
punitive approach. With regard to Representative Gara's
concerns, he said that the NCADD's experience has been that a
lot of an offender's fine ends up being waived if he/she
successfully completes court ordered treatment, and
characterized this as part of the carrot approach.
Additionally, if a person successfully completes court ordered
treatment, he/she will get credit for treatment fees, credit for
therapy, and credit for a number of other things he/she is
ordered to do, and the judge has the discretion to apply that
credit to the offender's fine; therefore, a person could end up
paying only one-fourth of a $10,000 fine, for example.
CHAIR McGUIRE surmised that the NCADD is seeing the [therapeutic
court process] work.
MR. FELIX concurred, adding that the NHTSA is now funding
therapeutic courts because they are one of the few things that
do work to stop DUI fatalities. The reason why so much federal
money is pouring into Alaska is because Alaska has the worst DUI
rate per capita and the worst DUI fatality rate of any state;
over the years, and still currently, 50 percent of Alaska's auto
fatalities have been DUI related, and up to one third of those
fatalities were the result of multiple DUI [situations].
CHAIR McGUIRE asked whether interlock devices are making an
impact on that rate.
MR. FELIX indicated that although [the courts] are now
authorized to make use of interlock devices in sentencing, they
are not being used in Alaska yet, though they have been used
successfully in other states as part of the sentencing structure
and as part of the therapeutic court model.
3:08:11 PM
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 136.
REPRESENTATIVE DAHLSTROM moved to report HB 136 out of committee
with individual recommendations and the accompanying fiscal
notes.
REPRESENTATIVE GARA objected, and asked that the committee
consider adopting a letter of intent so as to ensure that the
bill won't be turned into a means by which to impose the
remaining part of a person's sentence because of a failure to
pay the mandatory minimum fine.
CHAIR McGUIRE said she wouldn't have a problem supporting such a
letter of intent but would first want to see in it writing.
3:10:06 PM
REPRESENTATIVE GARA asked that the committee delay moving the
bill until later in the meeting in order to give him an
opportunity to craft the letter of intent.
CHAIR McGUIRE agreed to do so.
REPRESENTATIVE ANDERSON asked that the letter of intent include
language indicating that the committee recognizes that
therapeutic courts, treatment programs, and interlock devices
are valuable tools for rehabilitation.
REPRESENTATIVE GARA agreed to do so.
REPRESENTATIVE DAHLSTROM withdrew the motion to report HB 136
from committee.
CHAIR McGUIRE relayed that HB 136 would be set aside and heard
again later in the meeting when the aforementioned letter of
intent is available for members to look at.
HB 116 - MINORS ON LICENSED PREMISES
3:11:12 PM
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 116, "An Act relating to the liability of certain
persons for entry and remaining on licensed premises." [Before
the committee was CSHB 116(STA).]
REPRESENTATIVE ANDERSON indicated that he'd like to move the
bill from committee.
REPRESENTATIVE KEVIN MEYER, Alaska State Legislature, sponsor,
said that HB 116 protects minors working with [law] enforcement
officers doing compliance checks on liquor license holders. He
referred to legislation he sponsored during the last legislative
session that created a civil penalty for those that violate AS
04.16.060, and noted that the bill would clarify that those
minors helping law enforcement with compliance checks would not
be held liable for violating either AS 04.16.049 or AS
04.16.060. He pointed out that currently, minor volunteers
actively assisting law enforcement in compliance checks are not
exempt from the liability provision of AS 04.16.065, and opined
that they should be exempt. There have been instances of
licensees attempting to bring suit against the minors that are
assisting law enforcement with compliance checks. He mentioned
that he has been "a victim" of a compliance check wherein two
minors outside of a liquor store asked him to purchase alcohol
for them and, fortunately, he responded correctly by refusing to
do so.
3:15:02 PM
DOUGLAS B. GRIFFIN, Director, Alcoholic Beverage Control Board
("ABC Board"), Department of Public Safety (DPS), opined that
the sponsor has done a good job of "framing the question and the
need for" HB 116, and noted that William Roche, Chief
Enforcement Officer, is also available for questions. He
offered that the compliance check program is a simple way of
putting people on notice that they need to take greater care in
making sure they don't serve alcohol to underage persons. In
management parlance, he remarked, the program is not that
complicated but does involve an underage person going on to a
licensed premises. He added that the ABC Board is very careful
to not mislead or trick anyone about the age of the person
making the request; the program is not intended to be a method
by which to entrap anyone.
MR. GRIFFIN said that one of the unforeseen problems encountered
with the program in relation to the newly established civil
penalty in AS 04.16.065, however, is that some licensees have
attempted to pursue civil action against the minors assisting
with the compliance checks. He noted that the compliance check
program has proven to be very effective as a deterrent; when the
program first started, the failure rate approached 50 percent,
and after just a few years of conducting the program, and
without spending a whole lot of money, the failure rate is now
under 10 percent. He concluded by saying, "We do need this bill
to clean up some of the potential problems that could be brought
about from licensees that don't like ... the fact that we're out
there trying to make sure that they're towing the line, by
guarding our underage people [from] the potential of being
sued."
3:18:26 PM
JESSICA PARIS, Coordinator, Youth in Action, Juneau Affiliate,
National Council on Alcoholism and Drug Dependence, Inc.
(NCADD), relayed that she is speaking on behalf of the teens she
has worked with while participating in the compliance check
program, and mentioned that she witnessed Representative Meyer
making "the right choice" during the compliance check he
underwent. She noted that law enforcement officers had
indicated that there was a problem with recruiting and training
"agents," underage persons willing to assist with the compliance
program, and so that is what her current job entails. Some of
the issues she faces when attempting to recruit and retain teens
for compliance checks, she relayed, is that the work is
sporadic, that it is preferable to have teens that are between
the age 18 and 20, that the teens can't be drinking, and that it
takes some courage on the part of the teens to work with law
enforcement to potentially shut down a source of alcohol to
their peers. So it is frustrating to then have these teens face
potentially being sued for $1,000 for their work, she concluded,
adding that one such teen she has worked with is facing just
such a suit.
3:20:44 PM
CHAIR McGUIRE, after ascertaining that no one else wished to
testify, closed public testimony on HB 116.
REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 1, to
remove from page 1, lines 7 and 13, "the person" and insert ",
supervises,". He offered his belief that Amendment 1 would
allow for instances in which the minor is wired and is not being
physically accompanied or visually observed by a law enforcement
officer.
CHAIR McGUIRE, characterizing Amendment 1 as a good amendment,
asked whether there were any objections to Amendment 1. There
being none, Amendment 1 was adopted.
REPRESENTATIVE GRUENBERG mentioned that [in a prior committee]
there had been discussion about making "this" applicable to [AS
04.16.050, AS 04.16.051, and AS 04.16.052], to add identical
language to those statutes.
MICHAEL PAWLOWSKI, Staff to Representative Kevin Meyer, House
Finance Committee, Alaska State Legislature, sponsor, pointed
out that AS 04.16.050 pertains to possession, control, or
consumption by persons under the age of 21; that AS 04.16.051
pertains to furnishing or delivery of alcoholic beverages to
persons under 21; and AS 04.16.052 pertains to furnishing
alcoholic beverages to persons under the age of 21 by licensees.
Therefore, he opined, there are several different enforcement
issues in Alaska's alcohol and beverage laws that are covered in
those three statutes.
MR. PAWLOWSKI relayed that the ABC Board had indicated that it
might be helpful to add the exemption from liability proposed in
HB 116 in case the legislature, in the future, wanted to add a
civil liability provision to one of the aforementioned sections.
However, no such civil liability provisions exist in those
statutes currently, and criminal liability, as provided for in
Title 11, wouldn't apply because the minor would be accompanied
by a peace officer. Therefore, he indicated, expanding HB 116
to include AS 04.16.050, AS 04.16.051, and AS 04.16.052 would
not be necessary at this time, even though the ABC Board likes
the idea of doing so.
3:25:26 PM
REPRESENTATIVE GRUENBERG said he wouldn't offer a proposed
amendment to include those statutes in HB 116 if the sponsor
prefers to forgo such a change.
REPRESENTATIVE MEYER said he appreciates the suggestion but
doesn't see a need for changing the bill in that fashion.
3:26:49 PM
REPRESENTATIVE DAHLSTROM moved to report CSHB 116(STA), as
amended, out of committee with individual recommendations and
the accompanying fiscal notes. There being no objection, CSHB
116(JUD) was reported from the House Judiciary Standing
Committee.
The committee took an at-ease from 3:27 p.m. to 3:28 p.m.
HB 136 - DRUNK DRIVING TREATMENT PROGRAM
3:28:24 PM
CHAIR McGUIRE announced that the committee would return to the
hearing on HOUSE BILL NO. 136, "An Act restricting the authority
of a court to suspend execution of a sentence or grant probation
in prosecutions for driving while under the influence and
prosecutions for refusal to submit to a chemical test; and
allowing a court to suspend up to 75 percent of the minimum
fines required for driving while under the influence and for
refusal to submit to a chemical test if the defendant
successfully completes a court-ordered treatment program."
CHAIR McGUIRE indicated that a proposed letter of intent has
been distributed.
REPRESENTATIVE GARA made a motion to adopt the proposed letter
of intent, which, with handwritten corrections, read [original
punctuation provided]:
It is the intention of the legislature that the Court
System and Department of Law continue their practice
as regards collection of unpaid fines for Driving
Under the Influence of Alcohol. That practice is to
pursue the payment of unpaid fines through a civil
action by the Department of Law, and not through
revocing [sic] probation. It is also the intent of
the legislature to encourage the use of fines,
wellness courts, and interlocking devices where
appropriate as tools for addressing these crimes, and
those who commit them.
CHAIR McGUIRE suggested that the letter of intent be adopted
after the bill is reported from committee.
REPRESENTATIVE DAHLSTROM moved to report HB 136 out of committee
with individual recommendations and the accompanying fiscal
notes. There being no objection, HB 136 was reported from the
House Judiciary Standing Committee.
REPRESENTATIVE GARA again made the motion to adopt the proposed
letter of intent. There being no objection, the letter of
intent was adopted and forwarded with HB 136.
HB 94 - ELECTIONS
3:29:35 PM
CHAIR McGUIRE announced that the final order of business would
be HOUSE BILL NO. 94, "An Act relating to qualifications of
voters, requirements and procedures regarding independent
candidates for President and Vice-President of the United
States, voter registration and voter registration records, voter
registration through a power of attorney, voter registration
using scanned documents, voter residence, precinct boundary and
polling place designation and modification, recognized political
parties, voters unaffiliated with a political party, early
voting, absentee voting, application for absentee ballots
through a power of attorney, or by scanned documents, ballot
design, ballot counting, voting by mail, voting machines, vote
tally systems, initiative, referendum, recall, and definitions
in the Alaska Election Code; relating to incorporation
elections; and providing for an effective date." [Before the
committee was CSHB 94(STA).]
LAURA A. GLAISER, Director, Central Office, Division of
Elections, Office of the Lieutenant Governor, characterized HB
94 as an omnibus "repair election" bill, and noted that it had
initially been introduced during the 23rd legislature as House
Bill 523. She explained that the housekeeping measures that HB
94 provides involve changing the phrase "work sites" to
"construction sites"; providing that the presumptive evidence of
a voter's address is his/her record, not the voter card;
defining "nonpartisan" and "undeclared" voters in statute;
protecting voter information of domestic violence victims in
accord with confidentiality laws improved last year; defining
the process for independent candidates for president and vice
president; ensuring consistency in the definition of "overseas
voters"; clarifying the age requirements for serving once
elected; clearly setting out recognized political party status
in the qualification standards for parties; changing Title 29 so
as to clearly define a qualified voter as one who's registered
to vote within the proposed borough or municipality at least 30
days prior to an election; defining "reregistration"; and
repealing duplicative language regarding regional supervisor
offices as absentee voting stations.
MS. GLAISER said that some key points that came up this year
include allowing a voter, through a power of attorney, to
authorize another to register to vote or make changes to the
voter's registration, or fill out an application for a by-mail
absentee ballot; the latter were requested a lot this last
election season by family members of those serving overseas.
She mentioned that in the House State Affairs Standing
Committee, Representative Gruenberg helped with the drafting of
that provision. Additionally, the witnessing requirements for
absentee ballot requests by-mail or electronic transmission were
reduced from two witnesses to one witness and that witness no
longer has to be a U.S. citizen. Scanning would now be another
means by which to transmit voter registration or by-mail
absentee ballot requests to the division; the division currently
accepts these forms in person, by mail, or by fax.
MS. GLAISER mentioned that the division had been told that the
phrase "electronic transmission" was not clear enough to allow
someone to scan his/her electronic voter registration
application and attach it as an e-mail; the need for
clarification on this issue prompted some of the changes offered
via HB 94. The bill also requires the division to implement
ballot rotation for the names of candidates running for
governor, lieutenant governor, United States senator, United
States representative, and state senator on ballots printed for
each House district. Placement of names for state House
candidates will appear in random order as determined by the
director, and this is not a change from current practice. She
mentioned that instituting a ballot rotation for state House
seats would increase the fiscal note and the burden on the
division. In response to a question, she acknowledged that
there are studies which indicate that having one's name first on
the ballot increases one's chances of winning, as well as
studies which indicate that the chances are not increased.
REPRESENTATIVE GRUENBERG mentioned that Joseph Sonneman
researched that issue and took a case to the supreme court. He
mentioned a chart that illustrates what ballot rotation would
look like, and concurred that having a rotating ballot for state
House seats would increase the fiscal note.
MS. GLAISER mentioned that for a state Senate seat, if there are
more than two candidates, one of them will never be first on the
ballot.
3:36:29 PM
MS. GLAISER indicated that the bill will increase ballot
security by precluding ballots from being mailed to a voter
whose address has already been identified as "undeliverable."
Also, election boards will be required to report the number of
ballots that are destroyed - this is intended to increase
accountability - and the bill adds standards for voting machines
and vote tally systems. She noted that a great deal of the bill
addresses petitions, referendums, and recalls, with the intent
of making the process of petitioning one's government more user
friendly and more consistent.
MS. GLAISER relayed that the bill also requires printed names
and dates of birth as identifiers for petition signers, and this
should help the division more readily qualify a voter's
signature. In order to comply with the U.S. Supreme Court
decision in Buckley v. American Constitutional Law Foundation,
the bill proposes the following qualifications for a petition
circulator: he/she must be 18 years of age or older, and must
be both a U.S. citizen and an Alaskan resident.
MS. GLAISER mentioned that language that was the basis for the
division requiring accountability reports from petition sponsors
has been removed; the Hinterberger v. State of Alaska decision
determined that that requirement placed an undue burden on
petition carriers. The bill also removes language requiring the
circulator's name to be prominently displayed on the petition,
though that requirement has not been enforced since the Buckley
decision came out, and removes language [requiring] an
additional 100 signatures when filing a recall petition.
3:38:18 PM
REPRESENTATIVE DAHLSTROM thanked the division for its work, and
commented on the current system's integrity. With regard to now
only needing one witness on an absentee ballot request by-mail
or electronic transmission, she mentioned that this change
disturbs her.
MS. GLAISER said this change disturbs her as well, particularly
since the bill's original requirement that that witness be a
U.S. citizen was removed in the House State Affairs Standing
Committee. However, 39 states currently do not require a
witness to be a U.S. citizen because it is believed that such a
requirement creates a higher bar to voting. Furthermore, the
division can't verify that a witness is a U.S. citizen, though
the witness does sign an oath.
3:41:03 PM
REPRESENTATIVE GARA mentioned that Section 19 causes him concern
because it says the division can use any machine that's been
approved by the Federal Election Commission, and he wants to
ensure that this does not mean a machine that doesn't use a
paper ballot.
MS. GLAISER said that would not be the case, and noted that in
the House State Affairs Standing Committee, Representative
Gruenberg added language to Section 19 that referenced the
statute which stipulates that a voting machine must use a paper
ballot.
MS. GLAISER, in response to a question, relayed that the
language change from two witnesses to one witness - who no
longer has to be a U.S. citizen - is located on page 11, lines 1
and 25-26, and pertains to both electronic and by-mail absentee
ballots.
REPRESENTATIVE GRUENBERG referred to testimony heard in the
House State Affairs Standing Committee regarding the potential
difficulty, while traveling abroad, of finding a U.S. citizen to
act as a witness; the feeling in the House State Affairs
Standing Committee was that it would not be necessary for a
witness to be a U.S. citizen. In response to a question, he
noted that 39 states don't have a witness requirement, and said
he would be willing to offer an amendment to that effect if
absentee voters are required to swear under penalty of perjury
that they are who they say they are.
REPRESENTATIVE COGHILL asked whether a witness would be more
liable than the absentee voter.
REPRESENTATIVE GRUENBERG said no.
3:46:31 PM
REPRESENTATIVE GRUENBERG offered his recollection that one is
already under penalty of perjury to identify one's self
correctly for the purpose of voting.
CHAIR McGUIRE asked what the form says "on the witnessing part."
MS. GLAISER said it's important to know that seeking a witness
is a person's last recourse; she indicated that the form that's
returned to the Division of Elections says:
By law your ballot cannot be counted unless you
include your signature, have it witnessed and provide
an identifier. I declare that I am a citizen of the
United States and that I have been a resident of
Alaska for at least 30 days. I have not requested a
ballot from any other state and am not voting in any
other manner in this election. If I had this
certification attested by witnesses other than an
authorized official, it was because no official
empowered to administer an oath was reasonably
available. I certify that the foregoing is true and
accurate.
REPRESENTATIVE GRUENBERG noted that Section 14, proposed
15.20.066(b)(2), already requires that an absentee ballot
returned by electronic transmission must be accompanied by a
statement executed under oath as to the voter's identity.
Section 16, on the other hand, pertains to returning an absentee
ballot by mail and doesn't require a person to state under oath
that he/she is who he/she is claiming to be. He opined that
there should be such a requirement when one returns an absentee
ballot by mail, particularly since that requirement exists if
one returns an absentee ballot via fax.
MS. GLAISER noted that the bill doesn't include the entire
statute, and indicated that she would be looking at the full
statute to find out whether elsewhere it makes such a
requirement for those sending in their absentee ballots by mail.
CHAIR McGUIRE asked whether the Division of Elections has ever
had occasion to contact the witnesses because of suspected voter
fraud.
3:49:57 PM
MS. GLAISER relayed that she has been asked to contact a witness
when, for example, the witness's signature was the voter'
signature, or when the witness had a different name but the
signature was the same as the voter's. She said that the
Division of Elections has an attorney general's opinion that
says that division personnel are not signature experts, but when
it's flagrant, they can "make that call." She noted that if
it's a close election or if there is a concern or if there are
questions about how the absentee review boards are functioning,
then the issue of witness verification is pursued further. She
acknowledged that the Division of Elections doesn't know whether
every single witness is whom he/she says.
CHAIR McGUIRE said she agrees with Representative Gruenberg's
comments regarding "an oath requirement." She added, however,
that she would be reluctant to "remove the witnessing part of
it"; rather, perhaps they should add a requirement that
witnesses take an oath under penalty of perjury when they
witness absentee ballots. In other words, if an absentee ballot
is not signed by a notary, there ought to be a mechanism by
which to ensure that the absentee ballot is being witnessed
correctly. She surmised that if one knows that he/she will have
to ask someone else to falsify information about one's identity,
it might serve as a deterrent.
MS. GLAISER said that the "first bar" is the highest, that of
having to fill out an absentee ballot in the presence of a
notary public, commissioned officer of the armed forces
including the National Guard, district judge or magistrate,
United States postal official, registration official, or other
person qualified to administer oaths. She opined that this
should be the first test, although the division doesn't
scrutinize the fact that a person had two witnesses sign the
form even though he/she had easy access to a notary public.
Alaska is recognized as doing the most to make sure a ballot is
counted, and the division does not judge a person with regard to
whether he/she met the highest bar or took the easier route.
3:53:15 PM
REPRESENTATIVE GRUENBERG referred to page 11 and noted that the
statute doesn't require that "it" be under oath even in front of
a notary, whereas the form does. He opined that if an oath is
required, then the oath should be required regardless of whether
"it's" in front of the notary; "then what they would do, would
be ... [to] have you say, here, up at the top, 'signed under
penalty of perjury.'"
REPRESENTATIVE GRUENBERG made a motion to adopt Conceptual
Amendment 1, to alter AS 15.20.081 "to require that here, just
like with fax, that it be signed under penalty of perjury or
under oath."
CHAIR McGUIRE, noting that [CSHB 94(STA)] is before the
committee, asked whether there were any objections to Conceptual
Amendment 1. There being none, Conceptual Amendment 1 was
adopted.
REPRESENTATIVE GRUENBERG, in response to a question, said he
would feel much better if [a witness were required to sign]
under oath.
CHAIR McGUIRE noted how easy it is to obtain false
identification, and said she wants to give recourse to the
division in cases of voter fraud, which some states have
terrible problems with.
3:58:12 PM
REPRESENTATIVE COGHILL pointed out that when he goes into vote
people [working] under oath check his ID; he characterized this
as a high bar that provides Alaska with a very clean voting
system. Where that system starts to get messy, he opined, is
[in regard to absentee voters] and suggested that the
individual's signature under oath is the last place to go [to
ensure the system's integrity]. He said he doesn't consider the
requirement for an absentee voter to have someone honestly
witness his/her signature as being too much of a burden. Noting
that proposed AS 15.20.081(d) first says that an absentee voter
should fill out his/her ballot in front of a notary public, the
goal being to identify who a voter is, he offered his belief
that there is still a need for that level of serious scrutiny;
therefore, he is not willing to remove the witness requirements
just yet.
MS. GLAISER noted that the division is going out to bid on a new
voter registration system, which would allow the division to
scan a voter's signature and thus provide the "absentee board"
with the ability to compare signatures.
4:02:22 PM
CHAIR McGUIRE asked what the current rule is regarding absentee
voting.
MS. GLAISER relayed that other states require an absentee voter
to swear that he/she will either be traveling or is incapable of
voting in the regular manner. So although absentee voting is
not supposed to be a person's first choice, the division doesn't
question a person with regard to why he/she is choosing to vote
absentee.
REPRESENTATIVE GARA noted that the bill contains substantive
provisions regarding the initiative process.
CHAIR McGUIRE mentioned that the bill would be held over.
4:05:31 PM
JOSEPH A. SONNEMAN, Ph.D., relayed that he'd earned his Ph.D. in
government, that he is the former chair of Alaskans for Fair
Elections - which asked for the recent recount regarding the
U.S. Senate seat - and that he would be speaking about two
sections of HB 94, Sections 10 and 19, and about two proposed
amendments. With regard to Section 10, which pertains to ballot
rotation, he offered his understanding that statisticians have
determined that if there is a long list of candidates, people at
the top of the list seem to do approximately 5 to 7 percent
better with regard to garnering votes. He went on to say:
Woodrow Wilson, the only political scientist to become
president, even wrote an article about that about 1910
or so. And then, of course, when candidates learned
this, some candidates actually began changing their
names because candidates were listed alphabetically in
those days. So to prevent the gaming of the system,
... a number of states and territories ... began
rotating the name of candidates on separate ballots,
so you would have as many ... versions of the ballot
as there were candidates [and the different ballots
would be distributed to voters as they came in to
vote]. ...
Alaska was one of those places that had adopted full
ballot rotation, and we had that in place for about 70
years ... until about [1997 or 1996] ... [when] the
task force for the lieutenant governor recommended
that ballot rotation be done away with as a cost-
saving measure. And ..., unfortunately, that was
adopted. So I filed suit and it went up to the
supreme court, which decided three to two that the
legislature was entitled to pick a fair method [but]
did not have to pick the fairest method.
And there is no question that the method that is used
today is a fair method, and the method that is used
today is that [the] Division of Elections picks the
letters of the alphabet - each letter is picked
separately ... for each House district. ... My point,
though, is that even though that's a fair method, it's
a method in which if there is any positional bias, one
person, whoever is picked, gets the benefit of all
that positional bias for that House district. And so,
to me, even though that's a fair method, it's a
drawing; it's not an election, because somebody could
... easily be the winner because of the result of the
drawing rather than as a result of the voting.
Nevertheless, that's what we've had for about eight
years. ... And, as Representative Gruenberg said,
[last year the House State Affairs Standing Committee]
went in favor of full ballot rotation. ... Of course,
with full ballot rotation, there's a substantial cost,
a cost that Alaska was able to afford for 70 years
when we did not have oil money, and it's curious to me
that now we say [we] can't afford it. But [setting]
that to one side, I think the method that is before
you in Section 10 of this bill [is] a very creative
way to improve on the present system without incurring
the costs of full ballot rotation. Obviously it's not
quite as good as full ballot rotation, but the cost is
much, much less. ... So I would say that I favor
Section 10.
DR. SONNEMAN noted that section 10 rotates by House district
rather than by ballot; this means that House district candidates
don't rotate, but there are up to 40 rotations available for
statewide offices.
CHAIR McGUIRE asked what prompted voters to pick candidates
listed at the top of a ballot.
4:11:06 PM
DR. SONNEMAN offered his understanding that that practice was
more prevalent in places such as the state of New York, which
used to elect its judges, and so, from a list of 200 names,
people would just pick those who were at the top; he mentioned
that to a lesser degree some people would pick those who were at
the bottom of the list. A counter argument is that positional
bias doesn't matter as much when either there are very few
candidates or when there is a lot of advertising or when there
is strong party identification. The early studies were based on
long lists of candidates, and positional bias was found to exist
in those situations. He reiterated his support of Section 10 as
something that can win approval in "this budget conscious age."
DR. SONNEMAN referred to Section 19, which pertains to the
standards for voting machines and vote tally systems, and said
that having a paper trail is an issue of concern to Alaskans for
Fair Elections, and so the group is very glad of the inclusion
of the aforementioned amendment regarding the statutory
reference to the stipulation that a voting machine must use a
paper ballot. That is the current law, and Alaskans for Fair
Elections is hoping it remains in place.
DR. SONNEMAN turned attention to a proposed amendment by
Representative Gara, which read [original punctuation provided]:
Page 10, following line 14
Insert new bill sections to read:
"*Sec. 13. AS 15.15.420 is amended to read:
Sec. 15.15.420. Duty to review the ballot
counting. The director shall review the counting of
the ballots with the assistance of and in the presence
of the state ballot counting review board [APPOINTED
REPRESENTATIVES FROM THE POLITICAL PARTIES].
*Sec. 14. AS 15.15.430 is amended to read:
Sec. 15.15.430. Scope of the review of ballot
counting. (a) The review 10 of ballot counting by
the director shall include only [A REVIEW OF]
(1) a review of the precinct registers, tallies,
and ballots case; [AND]
(2) a review of absentee and questioned ballots
as prescribed by law; and
(3) a hand count of ballots from one or more
randomly selected precincts in each election district
that accounts for at least five percent of the ballots
cast in that district.
(b) If, following the ballot review set out in
(a) of this section, the director 18 finds an
unexplained discrepancy in the ballot count in any
precinct, the director may count the ballots from that
precinct. If there is a discrepancy of more than one
percent between the results of the hand count under
(a)(3) of this section and the count certified by the
election board, the director shall conduct a hand
count of the ballots from that district. The director
shall certify in writing to the state ballot counting
review board and publish on the division's Internet
website any changes resulting from a [THE] count
performed under this subsection."
Instructions to Legislative Legal:
Make corresponding amendments and renumber
accordingly.
DR. SONNEMAN referred specifically to the language in the
proposed amendment that says, "(3) a hand count of ballots from
one or more randomly selected precincts in each election
district that accounts for at least five percent of the ballots
cast in that district.", offered his understanding that this
language was offered as an amendment in the House State Affairs
Standing Committee, and relayed that a lot of members of
Alaskans for Fair Elections are supportive of this language.
Alaska now has all of its elections "programmed" by only one
person, and some form of oversight would be desirable, he
indicated, and used the analogy of wanting an audit performed on
a bank that has only one cashier. A hand count is essentially
like an audit, he explained, ensuring that "nobody has made an
offer you can't refuse to the one programmer, or that somebody
[hasn't] ... somehow gotten remote access to any of the machines
and changed the programming."
DR. SONNEMAN relayed that the feeling in the House State Affairs
Standing Committee was, why fix a problem that doesn't yet
exist. He offered an example of a road not needing a stop sign
at one of it's corners in the days of horse drawn carriages, and
then, with the passage of time and the advent of motor vehicles,
that road becomes a much more dangerous road to cross and does
need a stop sign, but the prevailing thought is, "Well, nobody's
been killed there yet." He characterized the situation
involving elections as even worse than the situation in his
example, because if an election is somehow stolen through mis-
programming, "we non-programmers" won't know that the election
has been wrongly decided because there won't be anyone auditing
the state's only programmer.
CHAIR McGUIRE asked why that language failed to be adopted in
the House State Affairs Standing Committee.
REPRESENTATIVE GRUENBERG said that the vote went along party
lines, and that the feeling was that adopting such language
might have a fiscal impact.
MS. GLAISER mentioned that the amendment would have engendered
an additional fiscal note of $25,000.
REPRESENTATIVE GRUENBERG characterized that amount as "not much"
and the failure to pass the amendment as unfortunate.
4:17:34 PM
DR. SONNEMAN said that he and a number of members of Alaskans
for Fair Elections support Representative Gara's aforementioned
amendment. He then referred to the amendment labeled 24-
GH1048\G.12, Kurtz, 2/11/05, which read:
Page 8, following line 12:
Insert a new bill section to read:
"* Sec. 15. AS 15.20.450 is amended to read:
Sec. 15.20.450. Requirements of deposit and
recount cost. The application must include a deposit
in cash, by certified check, or by bond with a surety
approved by the director. The amount of the deposit
is $2,500 [$300] for each precinct, $10,000 [$750] for
each house district, and $50,000 [$10,000] for the
entire state. If the recount includes an office for
which candidates received a tie vote, or the
difference between the number of votes cast was 20 or
less or was less than .5 percent of the total number
of votes cast for the two candidates for the contested
office, or a question or proposition for which there
was a tie vote on the issue, or the difference between
the number of votes cast in favor of or opposed to the
issue was 20 or less or was less than .5 percent of
the total votes cast in favor of or opposed to the
issue, the application need not include a deposit, and
the state shall bear the cost of the recount. If, on
the recount, a candidate other than the candidate who
received the original election certificate is declared
elected, or if the vote on recount is determined to be
four percent or more in excess of the vote reported by
the state review for the candidate applying for the
recount or in favor of or opposed to the question or
proposition as stated in the application, the entire
deposit shall be refunded. If the entire deposit is
not refunded, the director shall refund any money
remaining after the cost of the recount has been paid
from the deposit. If the cost of the recount exceeds
the amount of the deposit, the recount applicant shall
pay the remainder upon notification by the state of
the amount due."
Renumber the following bill sections accordingly.
Page 21, line 4:
Delete "secs. 20 - 43"
Insert "secs. 21 - 44"
DR. SONNEMAN offered his understanding that the amendment
labeled G.12 would substantially raise the amount of the deposit
required of those requesting a recount. Under current law, a
recount request regarding a statewide seat must be accompanied
by a deposit of $10,000, and if the cost of the recount is less
than that amount, the director of the Division of Elections
refunds the remainder of the deposit to those that requested the
recount. Current law is silent, however, with regard to what
happens if the cost of the recount exceeds the deposit amount.
He elaborated:
It's been reported in the newspapers and I think prior
testimony, that even though our group came up with the
$10,000, ... the cost of the recount was more on the
order of [$30,000 or $40,000]. And so this amendment,
I think, is trying to say that it's something like a
user fee and the folks who request a recount should
pay the costs of what they get; that they get the
recount and, therefore, they should pay for it. And
on the surface that sounds pretty good, but we'd like
to explain why it isn't. First, as I said earlier, a
recount ... provides an audit function ..., and so,
just as audits are [a part of the] cost of doing
business, we think recounts are a cost of doing
government. ... The potential of a recount keeps
elections honest. ...
And here ... these are not minor increases; this would
go from $750, for a House district recount, ... to
$10,000 - approximately twelve times as much - and [a]
statewide [seat recount] would go to $50,000 - five
times as much. ... If you let the world know, through
law, that recounts are going to be much, much more
expensive - and the last sentence of the amendment
says, ... if the cost of the recount exceeds the
deposit, the applicant must pay the remainder - ...
that's equivalent to letting the world know that
election audits are going to occur much more rarely.
And so those people who are, unfortunately, inclined
to try [to] sway elections in improper ways are going
to say, "Alaska is a target, and we will be able to do
whatever we can do in Alaska and the odds of somebody
coming up with $50,000 for a statewide recount are
that much less than [at] $10,000."
CHAIR McGUIRE asked whether the deposit for a recount can be
paid out of campaign funds.
REPRESENTATIVE GRUENBERG offered his belief that one could do
so.
DR. SONNEMAN pointed out that the other aspect of recounts to
consider is that a group must raise the deposit within five days
including weekends, and explained that Alaskans for Fair
Elections succeeded in raising $9,600 within that five-day
period and the balance was paid for by one of the members. For
that group to have been able to raise $50,000 in that amount of
time would have been impossible, he remarked, and characterized
the proposed change as a severe burden.
4:22:22 PM
DR. SONNEMAN also pointed out, with regard to the argument that
recount deposit fees should be user fees, that the accurate
counting of an election benefits all of society, and therefore
Alaskans for Fair Elections thinks that it is inappropriate to
single out the requesting group to pay the whole cost, and that
a recount deposit should not be considered a penalty. Noting,
for example, that in cases of pollution, international
environmental law contains the principle of "polluter pays," he
relayed that Alaskans for Fair Elections doesn't believe that a
recount request is like pollution; rather, everybody benefits
from a recount.
DR. SONNEMAN offered his understanding that current law says
that the state will pay for a recount if there is a difference
of less than .5 percent, but the requester is required to pay if
the difference exceeds .5 percent; therefore, should the
amendment labeled G.12 be adopted, if the difference is .49,
then the state pays, and if the difference .51 percent, the
requestor will be required to deposit $50,000. This seems an
extreme difference for such a narrow margin, he remarked, and
noted that Maine has a graduated approach to this issue, though
the House State Affairs Standing Committee deemed it too complex
for Alaska for the time being. He opined that the appropriate
course of action for the House Judiciary Standing Committee
would be to follow suit with the House State Affairs Standing
Committee and defeat the amendment labeled G.12.
REPRESENTATIVE GRUENBERG confirmed that he and Representative
Seaton had looked at the Maine model and both had agreed that it
wouldn't suit a "little state like Alaska."
DR. SONNEMAN relayed that several members of Alaskans for Fair
Elections have said that the main concept of the proposed
amendment labeled G.12 again raises the concern addressed via
Representative Gara's aforementioned proposed amendment in that
one could defeat even a graduated system if one had access to
the computer programs of the voting machines. It is therefore
doubly important to have control of the [.5] percent threshold,
he opined, and mentioned that he and Alaskans for Fair Elections
agree with the written testimony offered by Don Anderson in
support of Representative Gara's aforementioned proposed
amendment.
DR. SONNEMAN said that Alaskans for Fair Elections appreciated
the division's efforts during the recent recount, such as
agreeing to hand count 10 percent of the precincts and to take
that 10 percent only from precincts that had been machine-
counted on election night. Alaskans for Fair Elections also had
an opportunity to learn about election procedures during the
recent recount. For example, because there is no federal
centralized database, when people vote absentee from another
state, there is no way to ensure that those people are not also
voting in that other state. Also, if a person votes in advance,
unless the list of registered voters is updated - and currently
such is not being done rapidly enough - then he/she can
theoretically also go into his/her precinct on election day and
vote again. The voter history file would eventually catch the
fact that a person voted twice, but not for six months; in the
meantime, however, both votes would be counted. He concluded by
saying that he is in favor of Sections 10 and 19 and
Representative Gara's aforementioned proposed amendment, and
indicating that he not in favor of the amendment labeled G.12.
4:28:25 PM
CHAIR McGUIRE asked whether other states currently have a method
by which to ensure that absentee voters are voting only in one
state.
DR. SONNEMAN said he did not know.
CHAIR McGUIRE mentioned that Ms. Glaiser was "nodding, 'No.'"
4:28:54 PM
MYRL THOMPSON relayed that he is the past chair of the group
that worked to recall Senator Ogan, and that he's been an
independent candidate for the Alaska State Legislature. He
concurred with Dr. Sonneman's comments, and characterized the
aforementioned proposed amendment by Representative Gara as
pertinent and as something that can only improve both the system
and people's perception of it. Referring to the proposed
amendment labeled G.12, he, too, noted that the amount of
deposit required for the recount of a House district race jumps
from $750 to $10,000, and characterized this as a huge jump.
MR. THOMPSON remarked that as an independent House seat
candidate, if he were to "fail the automatic count" by a few
votes, it would be literally impossible to for him to gather
$10,000 in the short amount of time allotted. He noted that his
major in college was political science, and relayed that a study
from the '80s showed that being first on the ballot did not make
a big difference for candidates with a party affiliation but did
make a 3-5 percent difference for those without a party
affiliation. He relayed that he is also wholeheartedly against
any proposed amendment that would remove the payment of $1 per
signature for recalls, initiatives, and referendums.
REPRESENTATIVE GRUENBERG thanked Mr. Thompson for his work on
the issues raised by HB 94.
4:33:05 PM
KEN JACOBUS said he had four points to discuss:
[The] first point is independent presidential
candidates. It's good that you put this provision in
the bill, it should stay there, [and] it should have
been in there a long time ago. It's required by the
U.S. Constitution, we're the 50th state to adopt such
a provision, [and] you avoided litigation by doing
that. ... The second point is on positional bias. I
think that there definitely is positional bias, and
what has been proposed ... doesn't solve the problem
entirely because it doesn't solve positional bias with
respect to all the elections, but it does the best job
of solving positional bias without additional cost,
and I support that wholeheartedly. Basically what you
get is a ... fairer election without spending
additional dollars on it; so that's a real good idea.
[The] third point: for signing referendum petitions
and initiative petitions, you require printing the
voter's name, date of birth, [and] address. And the
date of birth [is what] you are identifying as [an]
additional identifier. ... Section 30 is an example,
[and] that again appears [in] ... several places ...
[such as] Section 26. Basically the point I'm making
is that the date of birth is only one additional
identifier that you can use. Historically, on
petitions, we've used date of birth, we've used voter
registration number, [and] we've used social security
number. Sometimes it's difficult to get the date of
birth from people, so if you want an additional
identifier, I would suggest that you change the
[words] "date of birth" to "an additional identifier"
and let the people who circulate the petitions
determine what that additional identifier will be,
depending upon what the signer is willing to give.
CHAIR McGUIRE asked Mr. Jacobus for examples of identifiers that
he's seen used.
MR. JACOBUS said social security numbers and voter registration
numbers. He suggested that using the date of birth without the
year would work as an additional identifier while also having
the benefit of not requiring people to admit how old they are.
4:35:48 PM
MS. GLAISER, in response to a question, said that if someone is
just allowed to pick his/her own identifier, the division would
not be able to qualify such persons if that chosen identifier is
not in the division's database system, and noted that the goal
of the division is to increase ways of qualifying voter
signatures.
MR. JACOBUS said he agrees, and offered that being allowed to
use either a voter registration number, a social security
number, or a date of birth would be satisfactory.
CHAIR McGUIRE asked whether an Alaska driver's license number
would work as well.
MS. GLAISER indicated that perhaps that option could work as
well, but would do more research on the issue.
MR. JACOBUS mentioned that his concern is that the language
currently specifies that only the date of birth may be used.
REPRESENTATIVE GRUENBERG relayed that he would be offering
amendment that would allow for the use of any one of the four
identifiers just mentioned.
MS. GLAISER reiterated that the division is trying to expand the
ways in which to qualify signatures.
MR. JACOBUS referred to the definition of a political party, and
suggested that in the interest of certainty, the legislature
should pick the number of voters needed to establish a new
political party - for example, 4,000 or 5,000 or 2,500
registered voters - and then that number would never change
regardless of how many people voted. He mentioned that
Louisiana does something similar.
REPRESENTATIVE GRUENBERG suggested that the number ought to
change as the population in the state grows, though given the
controversy surrounding the issue of political parties, he
wouldn't want to have to be the one to bring it up every few
years.
MR. JACOBUS countered, however, that if the state simply chose a
number, then as the state population grows, it will become
easier for a political party to qualify.
REPRESENTATIVE GRUENBERG predicted that for just that reason
there would be efforts made to increase the number.
MR. JACOBUS opined that the ability for third parties to get on
the ballot, particularly if they are formed through a
substantial number of registered voters, should be made easier.
REPRESENTATIVE GRUENBERG characterized that as one of the policy
issues the legislature must consider.
CHAIR McGUIRE concurred.
MR. JACOBUS reiterated his suggestion that the legislature
should set a threshold using an exact number though not too low
a number.
VANESSA TONDINI, Staff to Representative Lesil McGuire, House
Judiciary Standing Committee, Alaska State Legislature, in
response to a question, noted that current law uses a 3 percent
threshold for a U.S. Senate seat vacancy.
4:42:15 PM
CHAIR McGUIRE relayed that public testimony would remain open
and that [CSHB 94(STA), as amended,] would be held over.
ADJOURNMENT
4:43:26 PM
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 4:43 p.m.
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