Legislature(2003 - 2004)
03/30/2004 08:03 AM House STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
HOUSE STATE AFFAIRS STANDING COMMITTEE
March 30, 2004
8:03 a.m.
MEMBERS PRESENT
Representative Bruce Weyhrauch, Chair
Representative Jim Holm, Vice Chair
Representative John Coghill
Representative Bob Lynn
Representative Paul Seaton
Representative Ethan Berkowitz
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 459
"An Act requiring an auditable paper trail for electronic voting
machines; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 547
"An Act relating to the dividends of individuals claiming
allowable absences; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 132
"An Act relating to the duties of the attorney general;
requiring the attorney general to participate in all actions
affecting the management and jurisdiction of the natural
resources of the state; amending Rule 24(c), Alaska Rules of
Civil Procedure; and amending Rule 514, Alaska Rules of
Appellate Procedure."
- MOVED CSHB 132(STA) OUT OF COMMITTEE
HOUSE BILL NO. 331
"An Act relating to federal requirements for governmental plan
and other qualifications for the teachers' retirement system,
the public employees' retirement system, and the judicial
retirement system; and providing for an effective date."
- BILL HEARING POSTPONED TO 4/1/04
PREVIOUS COMMITTEE ACTION
BILL: HB 459
SHORT TITLE: PAPER TRAIL FOR ELECTRONIC VOTING MACHINE
SPONSOR(S): REPRESENTATIVE(S) GARA
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) STA
03/09/04 (H) STA AT 8:00 AM CAPITOL 102
03/09/04 (H) Heard & Held
03/09/04 (H) MINUTE(STA)
03/18/04 (H) STA AT 8:00 AM CAPITOL 102
03/18/04 (H) Heard & Held
03/18/04 (H) MINUTE(STA)
03/30/04 (H) STA AT 8:00 AM CAPITOL 102
BILL: HB 547
SHORT TITLE: PFD: DELAY PAYMENT FOR ALLOWABLE ABSENCES
SPONSOR(S): STATE AFFAIRS
03/29/04 (H) READ THE FIRST TIME - REFERRALS
03/29/04 (H) STA, FIN
03/30/04 (H) STA AT 8:00 AM CAPITOL 102
BILL: HB 132
SHORT TITLE: AG INTERVENE IN NATURAL RESOURCES ACTIONS
SPONSOR(S): REPRESENTATIVE(S) WEYHRAUCH
02/26/03 (H) READ THE FIRST TIME - REFERRALS
02/26/03 (H) STA, RES, JUD
03/13/03 (H) STA AT 8:00 AM CAPITOL 102
03/13/03 (H) Scheduled But Not Heard
03/24/04 (H) STA AT 8:00 AM CAPITOL 102
03/24/04 (H) Heard & Held
03/24/04 (H) MINUTE(STA)
03/30/04 (H) STA AT 8:00 AM CAPITOL 102
WITNESS REGISTER
REPRESENTATIVE LES GARA
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Testified as sponsor of HB 459.
LAURA GLAISER, Director
Division of Elections
Office of the Lieutenant Governor
Juneau, Alaska
POSITION STATEMENT: Testified on behalf of the division during
the hearing on HB 459.
ROGER GAY
Big Lake, Alaska
POSITION STATEMENT: testified on behalf of himself during the
hearing on HB 459.
JOHN DAVID RAGAN
Ester, Alaska
POSITION STATEMENT: Testified during the hearing on HB 459.
LYNN KORAL
Alaska Independent Blind
Juneau, Alaska
POSITION STATEMENT: Testified on behalf of Alaska Independent
Blind during the hearing on HB 459.
JIM SYKES
Palmer, Alaska
POSITION STATEMENT: Testified during the hearing on HB 459.
CHRIS KNIGHT, Staff
to Representative Paul Seaton
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Introduced HB 547 on behalf of
Representative Seaton, sponsor.
PAUL DICK, Chief, PFD Operations
Central Office
Permanent Fund Dividend Division
Department of Revenue
Juneau, Alaska
POSITION STATEMENT: Answered questions on behalf of the
division during the hearing on HB 547.
SHARON BARTON, Director
Central Office
Permanent Fund Dividend Division
Department of Revenue
Juneau, Alaska
POSITION STATEMENT: Offered supplemental information during the
hearing on HB 547.
DAVID W. MARQUEZ, Chief Assistant Attorney General
Legislation & Regulations Section
Office of the Attorney General
Department of Law
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on HB
132.
ACTION NARRATIVE
TAPE 04-50, SIDE A
Number 0001
CHAIR BRUCE WEYHRAUCH called the House State Affairs Standing
Committee meeting to order at 8:03 a.m. Representatives Holm,
Seaton, Coghill, Lynn, and Weyhrauch were present at the call to
order. Representatives Berkowitz and Gruenberg arrived as the
meeting was in progress.
HB 459-PAPER TRAIL FOR ELECTRONIC VOTING MACHINE
[Contains discussion of HB 320.]
Number 0025
CHAIR WEYHRAUCH announced that the first order of business was
HOUSE BILL NO. 459, "An Act requiring an auditable paper trail
for electronic voting machines; and providing for an effective
date."
Number 0110
REPRESENTATIVE HOLM moved to adopt the committee substitute (CS)
for HB 459, Version 23-LS1686\Q, Kurtz, 3/29/04, as a work
draft.
Number 0140
CHAIR WEYHRAUCH objected for discussion purposes.
CHAIR WEYHRAUCH offered a brief review of the bill. He noted
that [Version Q] would add Section 2, which would make the
electronic voting machine be a backup to "the scanner version."
He mentioned Section 3, regarding the use of electronically
generated ballots, and Section 4, which defines the terms
[electronically generated ballot and optically scanned ballot].
He deferred to Representative Les Gara.
Number 0270
REPRESENTATIVE LES GARA, Alaska State Legislature, as sponsor of
HB 459, noted the original idea [behind the bill] was to ensure
that there is a paper trail for all ballots. However, it was
then realized that touch screen voting machines needed to be
available for those with visual disabilities. He explained that
that was provided for by federal law. He indicated the desire
to keep the [touch screen voting] machines as back-up only and
reminded the committee of the discussion during a previous
meeting regarding all the problems that would be associated with
those machines if they were to become the statewide machine. He
noted that people don't have to prove they need to use a touch
screen voting machine; they can simply ask to do so. He said,
"To the extent technologically feasible and to the extent that
there's ... federal funding available, those machines shall be -
as soon as possible - also retrofitted to create a paper trail."
He said the technology is close; it will be available by 2006.
California will require that those machines have a paper trail
by 2005. He explained that the language in the bill referring
to federal funding being expended only when available was used
so that there would be no fiscal note.
Number 0411
REPRESENTATIVE SEATON asked if the current AccuVote machines
would be the default machines, even after the paper trail
additions are made to the [touch screen voting] machines.
REPRESENTATIVE GARA replied that even after [touch screen
voting] machines are retrofitted with a paper trail, they still
would have problems regarding the computer code; therefore, they
would be kept as the secondary machine. He noted that in other
states there have been problems with [touch screen voting]
machines. He revealed that the only way to ensure that these
machines are accurate is to do a recount every time they are
used.
Number 0533
REPRESENTATIVE BERKOWITZ asked Representative Gara to discuss
access to the software.
REPRESENTATIVE GARA noted that there has been litigation in
states that have used the [touch screen voting] machines; when
people have tried to call for a recount, the response has been
that there is no paper trail to do a recount. The only way to
find out if those machines perform properly, he said, is to
review the software code. However, when people have asked to
see the software code, the company who produces it has responded
that it is a trade secret.
REPRESENTATIVE BERKOWITZ asked, "And that trade secret has
higher legal value than the secrecy of the ballot box?"
REPRESENTATIVE GARA replied that he doesn't personally believe
so, but [the company that owns the software code] will argue
that the trade secrets that it holds are federally recognized
and preempt the state's rights in that regard.
REPRESENTATIVE BERKOWITZ asked if there is anything that would
contractually prohibit [the State of Alaska] from getting access
to that software as part of a purchase agreement.
REPRESENTATIVE GARA suggested that the company may just decide
not to sell the machines, which would make it difficult for [the
State of Alaska] to provide the machines to those with
disabilities. He suggested asking that question of the Division
of Elections.
Number 0650
CHAIR WEYHRAUCH turned to Section 3, [subsection (b), on page 2,
beginning on line 14], which read as follows:
(b) Before permitting a voter to vote an
electronically generated ballot, the director shall
certify that any software used in creating, recording,
and counting the ballot is reliable and secure, and
that any machine used in casting the ballot will
accurately record votes cast.
CHAIR WEYHRAUCH explained that the director has to go through a
certification process that he/she feels is legally and
technically reliable. He said he doesn't think the director
will be in a position to be able to certify "without some
expertise." He continued, "And they say, you know, 'If you
won't let us do this, then we may not be able to use your
software, ... because we have to go through the certification
process, and I can't do that without that accountability.'"
REPRESENTATIVE BERKOWITZ responded, "I don't know how you'd get
admission of the evidence if you couldn't prove that the
software was accurate."
CHAIR WEYHRAUCH suggested there may have to be some sort of
confidentiality agreement that is waived in the event of
litigation over the validity of the software.
Number 0713
REPRESENTATIVE GARA, in response to a question from
Representative Seaton, indicated that touch screen voting
machines are called DREs [direct recording electronic voting
machines].
Number 0766
CHAIR WEYHRAUCH informed the committee that Laura Glaiser had
sent an e-mail addressing concerns she had, indicating that she
wants to confer with the lieutenant governor's office before the
House State Affairs Standing Committee takes action on HB 459.
He invited Ms. Glaiser to testify.
LAURA GLAISER, Director, Division of Elections, Office of the
Lieutenant Governor, said she has a couple of concerns: Her
first concern, she related, is how the division would not allow
certain people to use the touch screen voting. She surmised
that, since it's a state law and voter outreach is done, people
would learn that "there's a piece of technology in a polling
booth that they can't use." She clarified that she is not
saying it can't be done, but that she is concerned that the poll
workers will be "wrestling people and telling them, 'You can't
vote on that machine, you can only vote on the other machine -
that's the law.'" She said she doesn't have an immediate
answer, but it is something that can be addressed.
MS. GLAISER turned to Section 3, regarding having the director
certify software. She recommended the director not be put in
that position. She suggested the term, "independently
certified" might be used. She mentioned the National
Association of [State] Election Directors (NASED), a group that
has a "certification means." She also mentioned the Federal
Election Commission. She stated that the division has the same
concerns that the committee has expressed about the software and
wants everything certified before it's used. She noted that a
couple of years ago "they" changed the software for the optical
scan. She clarified, "The software that drives the touch screen
is the same software that drives the optical scan. But, to be
fair, the difference is, with optical scanning, you have a
marked ballot that you can use to check and counter check." She
noted that the certification currently takes place by the SEC
[U.S. Securities and Exchange Commission]. She added, "If you
want an additional layer, that may take some research." Ms.
Glaiser clarified that the programming of the software for an
election takes place at the Division of Elections, by division
employees.
Number 0938
MS. GLAISER turned to Section 3 [subsection (c), on page 2,
beginning on line 18], which read as follows:
(c) The director shall provide for a paper record
of each electronically generated ballot that can be
(1) reviewed and corrected by the voter at
the time the vote is cast; and
(2) used for a recount of the votes cast at
an election in which electronically generated ballots
were used.
MS. GLAISER said she doesn't know where technology is right now,
but she explained that the touch screen machine prints a receipt
next to the voter. In response to a question from Chair
Weyhrauch, she confirmed that the machine is similar to those
used to check in at airports. She added, "And it would be an
addendum to the machines that we've already bought. ... You
have that port to be able to put ... additional hardware on
there." She said the idea is to keep the receipt safe so that
somebody doesn't accidentally pull the receipt off and put it in
their pocket and walk off; therefore, [the receipt] would be
generated and then "dropped into its own box." She continued as
follows:
Our concern, again, not having any of this equipment
before us is: If you ... see it, it's already
printed, and then you say, "Oh no, that wasn't what I
wanted." ... How do you get that piece of paper
back? How does it not get dropped? Again, we don't
have the technology before us. [I'm] not saying that
it can't be done, but [it] concerns people that run
elections - you know, the staff that's been with the
division for years. These are the concerns that
they've brought up. How do we get what's best?
... And if we're only letting the disabled, ...
blind, and visually impaired, then how do they review
and correct? Right now, they believe that the audio
count -- I mean, as they ... review the ballot, that's
what happens for a blind person is everything's audio
and it goes through and says, "You cast this vote for
President, this vote for U.S. Senate, this vote for
House - would you like to change any of those votes?"
And then it provides a way for them to go back and
change it. ... Are you asking for another system - a
separate system that gives them an audio? Because ...
there's an audio ... in the current touch screen that
we have. Are you asking for something that double-
checks the system?
MS. GLAISER said she isn't trying to "creates walls," but just
wants [the proposed legislation] to be fair and true, so that
the division doesn't find out after it becomes law that it can't
implement [the provisions], and so that the new law doesn't
block the division from doing something "where everybody's
intentions were good."
Number 1078
REPRESENTATIVE BERKOWITZ commented that he experienced a recount
and appreciated that all the ballots were there. He emphasized
that people shouldn't be able to identify which ballot came from
which voter, but when there is an ability to look at all the
ballots, there is also the ability to recount them. He offered
his understanding that that is the gist of the proposed
legislation; that there is a physical record of votes, so that
"if all the software fizzes out and burns up, you've got a piece
of paper that you can say, 'This is a ballot that was cast.'"
Number 1128
REPRESENTATIVE SEATON stated that he has a problem with the
point just made by Representative Berkowitz, because if there is
software generating an inaccurate count and an inaccurate ballot
that is not reviewed by anybody, then nothing has been gained.
He said, "I think that where everybody's trying to get to is
that if there's questions and if there's been problems elsewhere
with the software generating ... incorrect votes - other than
what people get on the screen - ... there needs to be a
correction point in there." He offered his understanding that
the reason that 2006 has been discussed is that the technology
may not be available [until then].
Number 1187
CHAIR WEYHRAUCH stated that the committee wants to have some
practical applications of what it does. He emphasized that it
cannot create a mess.
Number 1299
MS. GLAISER noted that Georgia, for example, has only touch
screens for voting. She clarified that the State of Alaska's
Division of Elections has never planned for "a sweep and replace
of optical scans and the paper ballots." She said, "In this
state, with our power and all the things that can happen on an
election day, there will always be a paper ballot available."
MS. GLAISER returned to the subject of allowing only the blind
and handicapped to use the [touch screen] machine. She pointed
out that there will most likely only be one or two votes
recorded on that machine in some polling places, which may
jeopardize the privacy of those votes.
Number 1326
REPRESENTATIVE GRUENBERG related a story about some friends of
his. He said, "Apparently, in the last year or two, there is a
new law that helps them vote. And they want to be sure that,
pending the implementation of this, they don't lose the right
they have acquired under the new law."
Number 1350
MS. GLAISER stated her belief that the language that has been
deleted from page 1, Section 1 of the bill is related to the law
to which Representative Gruenberg's friends referred. She
explained that that was a piece of legislation carried by then
Senator Loran Leman and Representative Joe Green, in 2002. She
said Senator Leman worked with Sandy Sanderson and Lynn Koral.
Ms. Glaiser remarked that Ms. Koral worked hard on "this
language."
REPRESENTATIVE GRUENBERG noted that Section 6 of the bill would
make the bill effective immediately and Section 1 repeals the
present law. He asked if [the division] would still legally be
able to use the current equipment if it takes a period of time
before the new equipment is ready.
MS. GLAISER responded that she is not an attorney and would
therefore have to check that answer. In response to a comment
by Representative Gruenberg that it is an important issue to
many people, she replied that it is also important to the
lieutenant governor, which is why he asked her to write to "the
chairman" to let him know that "we" have concerns. She
indicated the importance of meeting the intent of the Help
America Vote Act, because the funds that would be used to
purchase additional equipment are tied to the proper
implementation of the federal law.
Number 1390
CHAIR WEYHRAUCH promised, "We'll work on this bill 'til we get
it right."
Number 1404
REPRESENTATIVE GRUENBERG asked what about the current system is
broken, such that something new, which might cause problems, is
being considered.
Number 1414
MS. GLAISER explained that the Help America Vote Act requires
that one of the touch screen machines be in every polling place
by 2006. When that Act was passed, the machines had not been
tested in elections to drive other concerns. She said she
decided to purchase 100 machines to use in the 2004 elections
for two reasons: First, to make good on an honorable promise to
the disabled, blind, and visually impaired, that they could cast
an independent ballot. Second, to learn the needs regarding
shipping, transport, and storage [before the 2006 deadline].
Number 1485
CHAIR WEYHRAUCH suggested that it might be worthwhile to put a
sunset date on the bill, so that if HB 459 passes, it would have
to come back before the legislature next year for fine-tuning.
Number 1505
MS. GLAISER, in response to a question from Representative
Gruenberg, noted that in addition to the previously stated
reasons for the touch screen machines, there is also a state law
in the books. She cited AS 15.15.030 [paragraph (13)], which
read as follows:
(13) Notwithstanding any other provision of this title, the
director may provide for voting by use of electronic balloting
equipment or optically scanned ballots where the requisite
equipment is available. If the director provides for voting by
use of electronic balloting equipment, the director shall
provide electronic balloting equipment that would allow voters
with disabilities, including those who are blind or visually
impaired, to cast private, independent, and verifiable ballots.
REPRESENTATIVE GRUENBERG asked what the basis is for the federal
law and what the penalty is if the State of Alaska does not meet
the [federal] requirement.
MS. GLAISER offered her understanding that the intent of having
[a touch screen machine] in each polling place is to reach the
blind, disabled, and visually impaired. She said the Help
America Vote Act was born as a result of the problems in Florida
[during the presidential election of 2000] and to replace the
punch card system. She expressed that it was never the intent
of the sponsors of the Help America Vote Act for touch screen
voting machines to completely replace [other forms of voting],
but rather that their intent was to have one touch screen
machine in every polling place.
REPRESENTATIVE GRUENBERG asked, "How about if there's a polling
place that doesn't have a visually impaired voter?"
MS. GLAISER said that's not addressed in the federal Act. She
said that as the division meets with the regional supervisors
and the division staff, it has those concerns. She stated that
[the machines] will go out to rural Alaska, which is why she
wants to bring them into use during the 2004 elections. She
commented that shipping the machines is like shipping a laptop
[computer].
REPRESENTATIVE GRUENBERG asked if it would be a violation of the
federal Act to limit [the distribution of touch screen machines]
to only those precincts in which somebody has requested them.
MS. GLAISER reiterated that she is not an attorney, but
suggested that perhaps some research could be done on the issue.
She added that it's certainly a reasonable [idea] and one that
has been discussed within the division.
Number 1673
ROGER GAY, testifying on behalf of himself, stated his belief
that voting has to be verifiable for the purpose of a recount.
He said he doesn't trust electronics or programmers, because
"they are subject to all sorts of mischief by hackers and other
people with computer skills." He opined that paper trails are a
lot easier to verify than electronic voting. Mr. Gay
recommended that the committee be cautious in its implementation
of "this procedure."
Number 1721
JOHN DAVID RAGAN told the committee that he is a Democrat, a
member of the Laborer's Union Local 942 in Fairbanks, an Alaskan
resident since 1975, a firefighter with the Ester Volunteer Fire
Department, and a former elected board member of the Ester
Community Association. He noted that he is also a writer for
the Fairbanks area's progressive newspaper, The Ester Republic.
He read a selection from an article he wrote in that publication
[available in the committee packet], regarding the controversy
surrounding the electronic voting machines.
Number 1822
MR. RAGAN characterized as most troubling of all an article by
Thom Hartmann entitled, "If You Want To Win An Election, Just
Control The Voting Machines." The article, he said, reports
that the respective Washington D.C. publication, The Hill has
confirmed "that former conservative talk-show host and now
Republican U.S. Senator Chuck Hagel was [the] head of, and
continues to own part interest in, the company that owns the
company that installed, programmed, and largely ran the voting
machines that were used by most of the citizens of Nebraska."
He continued as follows:
The article says that when Hagel first ran there for
the U.S. Senate in 1996, his company's computer-
controlled voting machine showed he'd won stunning
upsets in both the primary and the general election.
The Washington Post said Hagel's Senate victory
against the incumbent Democratic governor was the
major Republican upset in the November election.
According to Bev Harris of www.blackboxvoting.com,
Hagel won virtually every demographic group, including
many large Black communities that had never before
voted Republican. Hagel was the first Republican in
24 years to win a Senate seat in Nebraska. Hartman
says that six years later, Hagel ran again and won in
a landslide. About 80 percent of those votes were
counted by computer-controlled voting machines put in
place by the company affiliated with Hagel, built by
that company, programmed by that company. "This is a
big story - bigger than Watergate ever was," said
Hagel's Democratic opponent in the 2002 Senate race,
Charlie Matulka.
Number 1877
MR. RAGAN said the article goes on to detail election problems
in Georgia. He said he has citations of all the articles that
he quoted. He clarified, "This is part of a larger article
which discusses the lawsuit brought by the [National Association
for the Advancement of Colored People] (NAACP) and the U.S.
Commission on Civil Rights in the 2000 elections, against the
Florida secretary of state's office - which they won." He
explained that the article details that in the Florida election,
nearly 200,000 qualified Democratic voters had their
constitutional rights to vote in the election denied through
"purges" of the voting records and "a number of other tactics"
that were declared illegal after the election. He stated that
millions of Democrats believe that President Bush is in office
due to a rigged election in Florida. He opined that if that
election looks bad, the next one will "really look bad," given
the allegations against the computer-controlled voting machines.
He explained that "this information" has been widely circulated
on the Internet, as well as to all members of the "Interior
Democrats." He offered his understanding that there probably
will be litigations and challenges in every election in which
these voting machines are used. He said he thinks that people,
no matter their party affiliation, have the responsibility to
ensure that the voting system is absolutely transparent and that
there's no question that the vote is being programmed or
tampered with.
Number 1968
MR. RAGAN noted that there already exists an optical scanner
system. He concluded as follows:
If we're going to use these electronic machines, the
central point is: ... There must be a paper ballot
generated; it must be verifiable by the voter as
corresponding to the election vote and ended by that
voter; the paper ballot must be the legal ballot, for
purposes of a recount; and, in every election, even
when there's no recount, there must be random checks
of at least five percent of the precincts to ensure
that the paper ballots generated by the electronic
machine correspond to the number of votes counted in
that precinct by the electronic machine.
Number 2022
REPRESENTATIVE LYNN asked Mr. Ragan to define the word
"progressive," which he noted Mr. Ragan used in his testimony.
MR. RAGAN offered his understanding that "progressive" is
currently used by the Democratic party to correspond to the left
wing of that party, which sees itself as continuing the New Deal
and the progressive movement in the Midwest and in Democratic
politics.
Number 2073
REPRESENTATIVE GRUENBERG expressed that he doesn't want
anybody's political views to influence the factual statements
that Mr. Ragan made. He said if there are problems with the
machines, they are problems, no matter how a person casts
his/her vote.
Number 2099
LYNN KORAL, testifying on behalf of Alaska Independent Blind,
told the committee that she appreciates "the problem with the
machine," but she also doesn't want the legislature to break the
promise it made to the blind and disabled population regarding
voting machines. She explained that Alaska Independent Blind is
a grass roots advocacy organization that fought hard to have the
electronic machines. She indicated that the late Frank Haas had
worked to get access to the voting ballot, but that did not
occur before his death.
MS. KORAL agreed that there can be problems with hackers, but
she said previous testifiers helped make her point, because
"there certainly wasn't any guarantee with the paper ballot."
She reiterated that she wants to know that the legislature is
not going to break its promise. She said, "We've waited far too
long, ... and I think it's about time that you start allowing us
to vote independently, secretly, and verifiably, so that people
can't judge us by the votes we cast."
Number 2140
CHAIR WEYHRAUCH asked Ms. Koral to explain what she meant by the
promise made by the legislature.
MS. KORAL explained that it's a promise that [Alaska Independent
Blind] believes the legislature made when it passed HB 320. She
noted that Frank Haas was a Republican who died in 1990, and she
said he had wanted private, verifiable balloting, "especially
because we're a small state." She said, "It's a promise that I
believe you will break if you delay this implementation of the
Help America Vote Act and the Frank Haas Act." In response to a
question from Chair Weyhrauch, she explained that [the Frank
Haas Act] is Alaska State law.
Number 2185
REPRESENTATIVE SEATON said the bill "eliminates that language"
in Section 1, but reinstates it in another Section on page 2,
beginning on line 10. He explained, "It wouldn't change the
status of that law at all."
MS. KORAL asked why the language was moved.
CHAIR WEYHRAUCH explained that it was moved around to try to
implement the provisions of the bill to make any software
associated with electronic voting verifiable by the division.
He explained that it was more of a drafting issue than a policy
issue.
MS. KORAL asked, "How am I going to verify it in the voting
booth as a blind person?"
CHAIR WEYHRAUCH responded, "Well, you wouldn't."
MS. KORAL asked, "What are you going to do about that?"
CHAIR WEYHRAUCH told Ms. Koral that the committee is working on
that.
Number 2233
REPRESENTATIVE GARA stated the whole intent of the bill is to
say, "While we're a little bit worried about the technology
associated with the [touch screen voting] machines, we're going
to leave the other machines as the default machine for people
who don't have visual impairments." He emphasized that there's
no intention to delay the implementation of the [touch screen
voting] machines; they will be available in the 2004 election.
MS. KORAL said she wants to know that others understand that "if
we have to verify the ballot, it doesn't mean that somebody has
to be there in the voting booth to verify it with us, because
obviously ... I'm not going to be able to read paper unless you
have a scanner in there with me."
REPRESENTATIVE GARA responded that that's fair. He said,
"Actually, you don't have to verify the ballot. You'll get a
paper ballot, and whether you want to have somebody there with
you to verify it or not - that's totally up to you."
Number 2370
JIM SYKES testified that he has been involved in many voting
issues in the last 14 years, and he has "made" his professional
life in the area of technology - mainly with audio and video.
TAPE 04-50, SIDE B
Number 2375
MR. SYKES said new technologies generally have some "down sides"
that are not always considered and, until the bugs are worked
out, the technology can actually be detrimental in some cases.
He said this is what concerns him about electronic voting. He
noted that he has had many discussions with the director of the
Division of Elections since December, regarding many articles
and problems that have arisen "with these varying machines."
MR. SYKES agreed with the previous comments of Mr. Gay that
there needs to be a paper trail. He opined that an election
needs to be auditable; there has to be a way of proving the
vote. He said, "If a machine spits out a result, someone can
say, 'Well, the machine has given us the result.' But there is
no way to prove one way or the other if that is the result of
what the voter intended." He revealed that he is neither a
Democrat nor a Republican, but he wants to ensure that
everybody's vote counts.
MR. SYKES stated he was disturbed about a previous comment made
by Representative Berkowitz. He offered his understanding that
Representative Berkowitz had said that it isn't important to be
able to have the voter verify his/her ballot. He admitted that
perhaps he had misunderstood. Mr. Sykes said, "We have the
optical scan ballot - the AccuVote; you can take a look at the
ballot and verify those." He stated his concern with
implementing a technology that is not proven and not auditable
"for anybody, regardless of whether it is the blind or not." He
said it's risky and "we oughtn't go there." However, he stated
his belief that technology offers a solution.
MR. SYKES continued as follows:
If we're going to use these machines, there can be an
audio playback for the ballot for a blind person that
votes on [a] touch screen. There's also technology -
and it's easily available - to print out the results
of the ballot in Braille, so that the person can
independently verify - without the presence of another
person in the voting booth - that this is the way they
cast their vote. And that's the way that can be
verified: you've got audio; you've got Braille; and
the paper ballot is generated.
This must be a requirement before these machines can
be used, in my opinion, because how are you going to
offer equal protection? Let's say, for example, that
someone cast their vote on ... the touch screen
machines and the vote is in question. How do you
prove the vote, unless you can audit that? I believe
that the suggestion that you recount 5 percent of the
precincts - or perhaps even 10 percent - is a good
one. This should be done with the AccuVote machines,
as well. Currently, only three precincts are
recounted. The AccuVote machines can also be hacked
and that's another issue for another bill.
MR. SYKES encouraged the committee to require that a printout
can be independently verified by the voter on the touch screen
machines, and to ensure that there is a paper trail in the event
of a recount. He stated that he doesn't want anyone who is
visually impaired and uses one of the touch screen machines to
have his/her rights violated by a machine that might be tampered
with or might not be recording the vote appropriately, as has
been demonstrated in other states. He expressed appreciation
for the committee's consideration of the bill. He noted that
the federal law doesn't have to be implemented until 2006, and
he opined that [the division] should accommodate as early an
implementation as possible, but not at the expense of
questioning anybody's vote.
Number 2210
REPRESENTATIVE BERKOWITZ [regarding Mr. Sykes' interpretation of
what he had previously stated] clarified that what he doesn't
want is for the state to have access to his individual ballot to
verify how he votes, for example. He said, "It's one thing for
me to be able to look at my ballot and determine that ... the
vote is recorded the way I want to do it, but I think it's an
entirely separate thing for the state to be able to come in and
look at individual voters and say they voted accurately or they
didn't vote accurately."
MR. SYKES thanked Representative Berkowitz for his
clarification.
Number 2179
MS. GLAISER, for purposes of clarification, informed the
committee that the current touch screen does have a tape running
inside which records the votes. She said she understands "all
the nuances" and where the concerns are regarding problems and
hacking. She continued as follows:
But just so you know what the machines really do: ...
By taking that card with the chip in it out of each
individual machine that's been locked up and
reinserting it in the GEMS [Global Election Management
System] computer here, a ballot can be printed from
that card. Again, I'm not saying that you still don't
have concerns, but I want you to know that there is an
auditable trail that was required by the federal
government. The machines we have do meet federal
certification. That may not address all of your
concerns, but I just want to be real fair so that you
all understand ... what the system's capable of doing
- that it does have an auditable trail now. It does
allow a blind or visually impaired person - through an
audio - to verify that, yes, that is that ballot they
want to cast. Our current system does that.
Number 2126
REPRESENTATIVE BERKOWITZ mentioned a bill by Congressman [Rush]
Holt. He said he wonders what the status is regarding that
bill. He observed that that bill seems to have a fairly
detailed description of voter verification and audit capacity,
"which goes to what I think is the heart of what we're trying to
get at here."
Number 2112
MS. GLAISER responded that she has not received an update
regarding that piece of legislation.
Number 2098
REPRESENTATIVE GRUENBERG said he is concerned after listening to
the testimony from both hearings on HB 459 thus far. He
continued as follows:
I have heard nothing good about this system, no good
policy reason for implementing it, a large cost
involved, possible fraud. I am not unmindful of the
quite important U.S. Senate race that is coming up and
the effect this might have on ... the integrity of
that race. And I have yet to be convinced that there
is, in fact, a legal requirement that we do it, and
the penalties if we don't do it - particularly this
next election.
And I ... would request that the committee seek a
legal opinion on this issue and ... maybe from
[Legislative Legal and Research Services], a quick
audit of the problems that they've had, because unless
this Representative is convinced that we must do it
and - number two - that this is not going to cause
more problems than it will fix, I can't support ...
the whole concept of this thing.
MS. GLAISER stated her belief that the promise to the disabled,
blind, and visually impaired is the part that really drove
everybody's hearts on the implementation of "this," certainly in
Alaska, but also in the federal legislation. She said, "We're
trying to find a way to make it work so that we can still
protect the integrity of elections."
Number 2026
REPRESENTATIVE SEATON stated he has a problem with the idea that
there may be only two or three people in a community who [use
the touch screens] to vote. He said a report of what is done
will be made and "all of a sudden we have a way of knowing how
... those three people that were blind in that district voted."
He said that if the legislature is building enough safeguards in
[the proposed legislation] to make it work so that it's
verifiable and there's a paper trail, he is concerned that the
legislature also make it so that "everybody else has to use the
other system." He said he would like the committee to consider
that as it continues forward with the bill.
Number 1974
CHAIR WEYHRAUCH said, "When issues touch across our democratic
spectrum of politics, it effects all [of] us, and we're all
interested in ensuring a fundamentally fair and safe voting
process." He said he gets offended when people attach some sort
of political motive to "this."
Number 1933
REPRESENTATIVE GARA returned to Ms. Glaiser's previously stated
concern about the provision in the bill stating that the
software code has to be verified for accuracy by the director.
He explained that "director" means the director or his/her
designee, as long as the director gives the final approval. He
suggested an amendment could be made to that effect.
REPRESENTATIVE GARA responded to a previously expressed concern
regarding how a voter would prove that he/she is entitled to use
these machines. He said he doesn't want somebody to have to
show proof, that essentially they just have to ask. He
suggested that an option for the division would be to have a
form that would certify that somebody has a disability that
requires them to use the touch screen machine. He said Ms.
Glaiser estimated that there won't be that many people using the
machines.
REPRESENTATIVE GARA noted that Ms. Glaiser had said that the
software that is used now is the same as the software that is
used in touch screen machines. He clarified that part of the
software is the same, while part is not. He explained that the
current machines don't have software that tells the machine how
to "translate what somebody touches into an internal computer
vote." He said that's the part that people have complained
about nationwide regarding the DRE machines. The optical
scanning machine tells the machine how to translate what it
scans on a paper ballot.
Number 1855
REPRESENTATIVE GARA, in response to previous comments made by
Representative Seaton, stated that the technology is not there
right now. He said there's one company that produces a paper
record "right there for the voter." He clarified that Ms.
Glaiser spoke about the fact that "we" have a machine that
doesn't produce the paper record right there for the voter, but
produces it for the Division of Elections later on. He
continued as follows:
Ultimately, in a number of years, if everybody becomes
comfortable with these DRE machines and the glitches
are worked out, ... maybe they do become the default
machine. Right now, if you read the articles, the
part of the software that translates the thing that
you touch to an actual vote inside the machine is
manipulatable. And people have questions about these
machines. And, even if they produce a paper ballot
for you as you're sitting there - let's say the
election is over and the machine has "misrecorded"
every tenth vote ... - the only way the paper trail
helps you is if you then do the recount. ... We
don't want to have to do a recount every single
election.
I would say that, for now, we know the AccuVote
machines work very well. Let's make the DREs
available to people with handicaps and visual
impairments. Let's leave the other as the default
machine and, if some day the facts change and
everybody becomes very comfortable with the DREs with
the paper trail, then we can authorize the Division of
Elections to go ahead and make that ... the default
machine.
Number 1770
REPRESENTATIVE WEYHRAUCH announced that HB 459 was [heard and
held].
HB 547-PFD: DELAY PAYMENT FOR ALLOWABLE ABSENCES
Number 1748
CHAIR WEYHRAUCH announced that the next order of business was
HOUSE BILL NO. 547, "An Act relating to the dividends of
individuals claiming allowable absences; and providing for an
effective date."
Number 1723
REPRESENTATIVE GRUENBERG stated his support of HB 547. He
stated for the record that his recollection from his previous
term as legislator was that a bill had to be noticed [through
the Chief Clerk's office] by the bill name and number. That
notice had to be made on the Thursday before the week in which
the bill would be heard. He said he understands that's no
longer the requirement and that, currently, only the subject
matter has to be noticed. He said, "I'm just calling that to
the committee's attention, because in the final days -
particularly in the second session - it's important that the
public be fully aware of what we're dealing with.
CHAIR WEYHRAUCH concurred.
Number 1680
CHRIS KNIGHT, Staff to Representative Paul Seaton, Alaska State
Legislature, introduced HB 547 on behalf of Representative
Seaton, sponsor. He indicated that most people know a story of
someone who has committed fraud when applying for the permanent
fund dividend (PFD). He revealed that in 2000, approximately
$30 million left the State of Alaska in PFDs paid to people
living outside of the state. He noted that the legislature has
set up a guideline for allowable absences from the state and a
detailed list of those allowable absences is in the committee
packet.
MR. KNIGHT said the proposed legislation would not change the
current system of allowable absences. He indicated that the
intention of the bill is to get people to come back to Alaska
and to "remove this ... thought that there might be fraud of the
PFD application or the distribution of [the] PFD." He
explained, "The thought was that if we created some sort of
structural change, in the sense that if you have an allowable
absence and you return to the state and actually spend time in
the state, then you could receive your PFD." Mr. Knight
indicated that HB 547 may reduce that amount of claims that the
Permanent Fund Dividend Division has, which would potentially
result in putting money back into the state's economy.
Number 1574
REPRESENTATIVE SEATON clarified that the bill takes most
allowable absences and "has the person return to the state [and]
reestablish residency after that allowable absence, before they
receive the past dividend ... that they qualified for." He
asked Mr. Knight to indicate which allowable absences are not
included in HB 547.
MR. KNIGHT noted that members of Congress are not included in
the bill as those who qualify for an allowable absence. He
said, "Mainly, the absences we were trying to capture within
this bill are people that leave for college." He related having
been one of eight or nine men who attended college out of state.
He noted that he and one other man returned to Alaska after
school, while the rest did not. He predicted that if the
dividends [had been held until their return], those who took
jobs in the Lower 48 would probably have returned to Alaska to
work.
REPRESENTATIVE SEATON said, "This doesn't apply to the 180-day
absence that anybody is entitled to, so it doesn't interfere
there.
Number 1472
REPRESENTATIVE LYNN asked how [HB 547] would relate to the
military.
MR. KNIGHT answered that, currently, military personnel [who
claim Alaska residency and file for a PFD] must return to the
state for 72 hours, every two years. He offered his
understanding that a military person who lives in Alaska for two
years and is then transferred to, for instance, Oklahoma can
receive his/her dividend for 10 more years, as long as that
person's intent is to move back to Alaska, and if that person
meets the requirement of returning to the state for 72 hours,
every two years. He concluded, "So, realistically, we're not
changing the eligibility requirements whatsoever; we're just
making it clear that if you are going to live in the state and
you're going to continue to claim to be a resident of the state,
then you'll receive your dividend."
Number 1413
REPRESENTATIVE LYNN pointed out that no one knows how long a
military assignment might be. A person may be assigned for four
years and may not be able to afford to come back for 72 hours.
He noted that that's particularly true for the lower ranking
individuals. He said it's an area that concerns him.
MR. KNIGHT revealed that he had previously worked in an office
that sent out a quarterly publication detailing how a person
could continue to be eligible for the PFD while serving in the
military. For example, he noted, when not involved in combat,
most people have access to cargo planes back to the states, in
order to meet the 72-hour requirement. He noted that HB 547
would not change that process. He added, "The only thing that
changes is that if you have no intention of returning to the
state within 10 years, you're going to lose all your dividends,
which is also current statute, except that you're not going to
be paid your dividends until you actually come back to the
state."
Number 1270
REPRESENTATIVE SEATON revealed that the idea for HB 547 came
from a military person who is in the U.S. Coast Guard and is
disturbed that many members that he served with have no
intention of coming back. He said the man would think that
receiving six or eight held back PFDs upon his return to Alaska
would serve as a great nest egg. He stated that the point of
the proposed legislation is to make people who say they will
come back to the state actually do so before they can receive
their held dividends.
Number 1181
REPRESENTATIVE HOLM said people have related to him that they
know a lot of people [in the military] who never have any
intention of staying in Alaska, but still accept the PFD. He
noted that he was also told that Alaska is the most asked-for
place to go, by military people, because of the PFD. He noted
that military people with large families can augment their
incomes in this manner.
Number 1080
REPRESENTATIVE SEATON mentioned the "brain drain" [Alaska losing
people to other states]. He suggested that the nest egg [PFDs
held back while people are out of state] would be a good
incentive to people to return to the state. He added that he
hasn't seen anything else that has the potential for doing that.
Number 1040
PAUL DICK, Chief, PFD Operations, Central Office, Permanent Fund
Dividend Division, Department of Revenue, testifying on behalf
of the division, noted that the largest group of people on the
180-day allowable absence are the spouses and children
accompanying either military personnel, predominately, or
students. He said there have been comments made about these
people reestablishing residency upon their return to Alaska;
however, Mr. Dick clarified that they never lost their
residency, and it's just a matter of them coming back to live in
Alaska. They are eligible for the dividend because they have
maintained their residency during the period of time [in which
they were out of the state].
Number 0973
CHAIR WEYHRAUCH referred to a handout in the committee packet
entitled, "Why Applicants Were Absent From the State." He noted
that the total for students enrolled full-time in postsecondary
education is 5,365. He asked if that number has grown over time
or remains stable, and how much the bulk payout would be when
those students return.
Number 0950
MR. DICK answered that there is not a dramatic growth in those
numbers. He stated that the amount they would get when they get
back would obviously be dependent on how much the dividend was
for each year. In response to a follow-up question from Chair
Weyhrauch, he said [the division] has not analyzed how many
years students are out of the state; however, he said he would
assume that students would be out for four years.
Number 0905
REPRESENTATIVE HOLM asked what percent of the PFDs are mailed
out of the state each year.
MR. DICK said he doesn't know the percentage, but 18,000 is the
total number of PFDs mailed [out of state] out the 620,000
applicants. He noted that approximately $20 million was sent
out of state last year.
Number 0863
REPRESENTATIVE GRUENBERG opined, "If you have these figures, you
ought to be able to break down the raw data for us." Referring
to the most recently mentioned handout, he noted that "the
largest category are people who have accompanied an Alaska
resident who's eligible for a PFD." He asked if [the division]
can break down who the Alaska residents are that these people
are accompanying to show whether they are students, or military,
or other.
MR. DICK said that it would be possible to conduct a study for
that information. In response to a question from Representative
Gruenberg, he said he believes "the numbers would come out
showing that they are mostly military, particularly with the
children." In response to follow-up questions from
Representative Gruenberg, he said the full-time student category
would be adults in a post-secondary education. He stated that
adults have to have their own eligibility. Full-time students
enrolled in grades 7-12, he confirmed, would predominately not
be accompanying their parents.
REPRESENTATIVE GRUENBERG asked how long the various categories
remained out of state and how many people eventually returned.
MR. DICK said he believes those numbers could be found.
REPRESENTATIVE GRUENBERG said he thinks this is information that
he would like. He offered to work with Mr. Dick to arrive at
the best questions to ask.
MR. DICK, in response to a question from Representative
Gruenberg, said he could not pin down a time in which he would
have that information, but he said [the division] would work
diligently to get it.
Number 0660
REPRESENTATIVE HOLM asked what the tax implication might be of
extending payments for years. He said he would assume that the
tax would be greater on the individual payments, rather than on
a grouping of payments.
REPRESENTATIVE HOLM noted that Alaska loves having military
here. Notwithstanding that, he observed that it is somewhat
curious that Alaska, as a state, has chosen to participate [in]
greater payment of the military than the other 49 states, by
virtue of the PFD. He said he thinks the legislature should
think about those things.
Number 0562
REPRESENTATIVE SEATON offered his understanding that there is
currently a program where if someone dies, the PFD is in trust
in his or her estate for a certain amount of time. He said, "We
have ..., basically, the same kind of a program of holding those
checks. Do we have that for any other categories, as well?"
MR. DICK answered, "We would just hold that dividend for that
one year only, and once we're notified that the person's
deceased, we would ... put the check 'to the estate of'." He
clarified that in that circumstance, PFD checks are not held for
years.
REPRESENTATIVE SEATON asked if there is any circumstance of
disputed checks, for example, where the [PFD] checks are held in
abeyance until administrative processes go forward.
MR. DICK replied that there is a denial and appeal process where
a dividend would be pended until it's adjudicated and resolved.
He stated that [the division] has those resolved within a year
of the application deadline.
Number 0471
CHAIR WEYHRAUCH indicated that in some cases, the Alaska Supreme
Court has been involved in those disputes. He said, "You still
hold the check during the pendency of those litigations."
MR. DICK concurred.
Number 0445
SHARON BARTON, Director, Central Office, Permanent Fund Dividend
Division, Department of Revenue, added that when a child reaches
the age of 18, if the parents or guardian have not filed for
him/her over the years, they can, at that point, file for prior
year dividends. She said [the division] reserves an estimate of
that amount of money each year for that purpose.
REPRESENTATIVE GRUENBERG suggested a work group or subcommittee
be formed to get the information from [the aforementioned
testifiers] as efficiently as possible.
CHAIR WEYHRAUCH said Mr. Knight would arrange that.
[HB 547 was heard and held.]
HB 132-AG INTERVENE IN NATURAL RESOURCES ACTIONS
Number 0360
CHAIR WEYHRAUCH announced that the last order of business was
HOUSE BILL NO. 132, "An Act relating to the duties of the
attorney general; requiring the attorney general to participate
in all actions affecting the management and jurisdiction of the
natural resources of the state; amending Rule 24(c), Alaska
Rules of Civil Procedure; and amending Rule 514, Alaska Rules of
Appellate Procedure."
Number 0348
REPRESENTATIVE SEATON moved to adopt the committee substitute
(CS) for HB 132, Version 23-LS0541\H, Luckhaupt, 3/25/04, as a
work draft.
CHAIR WEYHRAUCH objected for discussion purposes. He noted that
Version H included changes suggested by the testifiers from the
Office of the Attorney General at the prior hearing of HB 132
[on 3/24/04]. Chair Weyhrauch indicated that paragraph (10),
under the old bill, was moved [in part] under paragraph (7), and
a new [subparagraph (C)] was created so that the legislature
would know about these cases. He continued as follows:
And then there's both a substantive discussion that
took place or a political debate that could take place
between the ... executive branch and the legislative
branch, to get the attorney general to involve itself
in these cases if the legislature felt it was
important enough to do so, either [through] a
political process, discussions with the attorney
general or the executive branch, or through passage of
a resolution.
CHAIR WEYHRAUCH asked a representative of the Office of the
Attorney General what the department's position might be
regarding Version H.
Number 0225
DAVID W. MARQUEZ, Chief Assistant Attorney General, Legislation
& Regulations Section, Office of the Attorney General,
Department of Law, in response to a question from Chair
Weyhrauch, stated that the department has no objection to the
bill as restructured in [Version H].
CHAIR WEYHRAUCH revealed that he had asked the Alaska Bar
Association to look at "this provision," and they did not
perceive any problem with it, either ethically or substantively.
He told the committee members that they would find a copy of the
e-mailed response from Steve Van Goor of the [Alaska Bar]
Association in the committee packets.
Number 0176
REPRESENTATIVE SEATON turned attention to the language added to
the bottom of page 2, beginning on line 31, and continuing to
page 3, line 1, which read as follows:
, or (2) the state's management or jurisdiction of the
natural resources of the state may be affected,
REPRESENTATIVE SEATON asked if that would include all "fish and
game-related cases." He clarified that he meant cases where
there's any challenge to the management. He said he doesn't
think that's the intent of the bill, but he just wants to make
sure.
CHAIR WEYHRAUCH responded that there are many issues related to
the business end of a fishing activity, which result in a
management decision but have to do more with a contractual issue
related to the harvest. He stated that disputes related to
fishermen or other practical applications of a fishery would not
be the kind of disputes "this amendment envisions." He said,
"Instead, it would be whether the state - the actual management
or jurisdiction of the resource, which is a plenary function of
the state under our constitution - would be an issue."
TAPE 04-51, SIDE A
Number 0048
MR. MARQUEZ, in response to a question from Representative
Seaton regarding the aforementioned language added in Section 2,
explained that litigants will be the ones creating the notice,
so it's possible that more notices would be filed and given to
the attorney general. He stated that the Office of the Attorney
General has limited resources and there may be a lot of notices
given that won't present the right facts or will be about a
different type of dispute. He noted that the office has very
rarely gotten into disputes of private litigants. He stated
that he is not too worried about the wording of [Section 2],
because the office will still have discretion [over] which suits
it will (indisc.).
Number 0112
CHAIR WEYHRAUCH told Representative Seaton that Version H added
the word "state's" from the original bill to make it clear that
it was the state's management and jurisdiction that was an
issue. He continued as follows:
Also, when you have an allocation dispute or a
decision by the Board of Fisheries that's subject to
litigation, the State of Alaska, the Board of
[Fisheries], or the commissioner is always named as a
party. So, the state - as a matter of law - ... would
have notice of that case. So, any time there's any
conservation, or development, or management dispute
involving a Board of [Fisheries] action, it is the
state at issue, and the state would absolutely have to
give notice or have to be joined as the real party and
interest in the case.
Number 0166
REPRESENTATIVE GRUENBERG noted that "this sentence" is hidden in
the Civil Rule, and very few practitioners are aware of that.
He brought attention to Rule 24(C), and he offered his
understanding that it is in regard to intervention.
Number 0300
REPRESENTATIVE GRUENBERG moved to adopt Amendment 1, which read
as follows [original punctuation provided]:
Page 2, line 31: Between the words "interest" and
"is" insert
"or the constitutionality of a regulation or executive
order affecting the public interest"
CHAIR WEYHRAUCH objected for discussion purposes.
Number 0330
MR. MARQUEZ, in response to a question from Representative
Gruenberg, said that he thinks that Amendment 1 would be helpful
and would bring notice to the Department of Law, "not only the
constitutionality of a statute, but also the constitutionality
of a regulation of executive order." He said the current
committee substitute would not impose a burden on the attorney
general; the state wouldn't necessarily have to intervene as a
party. He added, "But it would provide additional notice." He
continued as follows:
Of course, at some point, it's difficult to tell what
the volume would be, and at some point one could get
overwhelmed by data. ... The original legislation
certainly seemed to be targeted at natural resources
issues, so I'll leave to the committee - the target.
But we would have no objection to the amendment.
Number 0398
CHAIR WEYHRAUCH restated his objection to [Amendment 1]. He
said [Amendment 1] is so broad, which would create a much more
cumbersome process, as opposed to the narrow requirement.
CHAIR WEYHRAUCH referred to Representative Gruenberg's previous
statement regarding a part of law that few practitioners know
about. Conversely, he stated, "It's an area of law that many
practitioners know about who regularly intervene in cases
affecting fisheries." He offered examples. He stated that
intervention is a powerful tool to use in many procedures. He
noted that it's not used much in context with family law.
However, in the area of natural resource law, any time there is
a private party versus a public entity, all kinds of interests
are affected potentially, "and they jump into that case through
the intervention process if ... their interests are not being
represented by existing litigants." He noted that
Representative Gruenberg had, during a previous hearing,
discussed amending "the title of the rule in (C)," under
procedure and management and jurisdiction of resources. He
indicated that that would be preferable to [Amendment 1].
REPRESENTATIVE GRUENBERG explained that the reason he didn't
"put that one first" is because he wanted to see what the title
should say. He reiterated that he thinks many practitioners are
not aware that they have to notify the attorney general. He
said [Amendment 1] is not complex, but simply would be a notice
to the court for a request to notify the attorney general. He
said it's important because, without it, unless the court is
sharp enough to "pick it up," which it might not do until the
briefing is almost completed on an issue, it may delay the
litigation.
REPRESENTATIVE GRUENBERG said, "I put everything in this
amendment I could think of." He clarified there are two issues:
executive orders, which he said are probably seldom litigated
between private parties, and regulations. He said there are not
too many regulations in the field of family law, but there are
in other areas of law. He added, "The question of their
legality and constitutionality, I think, comes up occasionally."
He stated, "I think it's kind of important that the attorney
general be notified in these cases."
Number 0685
REPRESENTATIVE SEATON said he could understand if the
constitutionality of an executive order or regulation was being
challenged, but [Amendment 1] also includes the legality of a
regulation or executive order. He stated that means if a
regulation is challenged as violating a statute, "then we have
to challenge it as well." He said it seems to him that the
scope is being broadened tremendously.
REPRESENTATIVE GRUENBERG suggested that the amendment could say
"at least the constitutionality of a regulation".
Number 0768
CHAIR WEYHRAUCH responded that he has a problem with that,
because "it's already in there when the constitutionality of a
state statute affecting the public interest is in question." He
clarified that there's always an agent of the state that's
generally named in these kinds of cases. He stated, "So, I
think your amendment is subsumed in the rule already."
Number 0817
REPRESENTATIVE GRUENBERG withdrew Amendment 1.
REPRESENTATIVE GRUENBERG moved to adopt Conceptual Amendment 2
on page 3, lines 9-11, to "break that final sentence out into a
new subsection with a new title."
Number 0872
REPRESENTATIVE HOLM brought attention to page 1, [lines 7-9],
which read as follows:
(b) The attorney general shall
(1) defend the Constitution of the State of
Alaska and the Constitution of the United States of
America;
REPRESENTATIVE HOLM stated his opinion that the attorney general
has a duty to the State of Alaska first, and the Constitution of
the United States second, because of sovereignty. He said he
wondered if, by putting the two on the same line, that would
result in an untenable situation. He said it seems to him that
in the past there have been instances where the attorney general
has chosen not to pursue sovereignty issues within the state and
the legislature has not been given standing. He questioned
where the allegiances should be and whether or not the
legislature, through this type of demand of the attorney
general's office, isn't trying to exercise a requirement for the
attorney general's office to intercede on behalf of the people
of the state. He said, "I think the appeal process, when that
went forward, that said that the legislature did not have
standing, is erroneous, ... and that somehow we have to have the
opportunity as a state to demand that our administrative
component ... have a ... first duty to protecting the state's
sovereignty and a second duty to the United States
constitution."
Number 1004
CHAIR WEYHRAUCH said there is a conflict between the policies of
the state and the U.S. government, and generally the courts have
deemed that the executive branch speaks for the state in
enforcing the law in bringing litigation and making litigation
decisions on behalf of the state. He noted that that has
frustrated legislatures in the past when they have attempted to
intervene or gain standing on cases it thinks is important, but
that the executive branch thinks is not.
Number 1048
REPRESENTATIVE COGHILL said he would like to pass the bill "as
is." He suggested that the House Judiciary Standing Committee
could deal with matters regarding the history of the court
rules.
Number 1071
CHAIR WEYHRAUCH indicated that he would prefer that [the bill be
moved without Conceptual Amendment 2].
Number 1080
REPRESENTATIVE GRUENBERG said, "All right." [Conceptual
Amendment 2 was treated as withdrawn.]
Number 1090
REPRESENTATIVE COGHILL moved to report CSHB 132, Version 23-
LS0541\H, Luckhaupt, 3/25/04, out of committee with individual
recommendations and the accompanying fiscal notes. There being
no objection, CSHB 132(STA) was reported out of the House State
Affairs Standing Committee.
ADJOURNMENT
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 9:57
a.m.
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