Legislature(2003 - 2004)
04/21/2004 08:05 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
April 21, 2004
8:05 a.m.
MEMBERS PRESENT
Representative Bruce Weyhrauch, Chair
Representative Jim Holm, Vice Chair
Representative John Coghill
Representative Bob Lynn
Representative Paul Seaton
Representative Max Gruenberg
MEMBERS ABSENT
Representative Ethan Berkowitz
COMMITTEE CALENDAR
HOUSE BILL NO. 523
"An Act relating to qualifications of voters, voter
registration, voter residence, precinct boundary modification,
recognized political parties, voters unaffiliated with political
parties, early voting, absentee voting, ballot counting, voting
by mail, initiative, referendum, recall, and definitions; and
providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 525
"An Act relating to complaints filed with, and investigations,
hearings, and orders of, the State Commission for Human Rights;
making conforming amendments; and providing for an effective
date."
- HEARD AND HELD
HOUSE BILL NO. 541
"An Act relating to consideration by the legislature of the
executive budget and other bills affecting appropriations; and
providing for an effective date."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: HB 523
SHORT TITLE:VOTERS/VOTING/POLITICAL PARTIES/ELECTIONS
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
02/26/04 2748 (H) READ THE FIRST TIME -
REFERRALS
02/26/04 2748 (H) STA, JUD, FIN
02/26/04 2748 (H) FN1: ZERO(LAW)
02/26/04 2748 (H) FN2: (GOV)
02/26/04 2748 (H) GOVERNOR'S TRANSMITTAL LETTER
04/08/04 (H) STA AT 8:00 AM CAPITOL 102
04/08/04 (H) Heard & Held
MINUTE(STA)
04/13/04 (H) STA AT 8:00 AM CAPITOL 102
04/13/04 (H) Heard & Held
MINUTE(STA)
04/21/04 (H) STA AT 8:00 AM CAPITOL 102
BILL: HB 525
SHORT TITLE:HUMAN RIGHTS COMMISSION PROCEDURES
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
02/26/04 2757 (H) READ THE FIRST TIME -
REFERRALS
02/26/04 2757 (H) STA, JUD
02/26/04 2757 (H) FN1: ZERO(GOV)
02/26/04 2757 (H) GOVERNOR'S TRANSMITTAL LETTER
02/26/04 2757 (H) REFERRED TO STATE AFFAIRS
04/21/04 (H) STA AT 8:00 AM CAPITOL 102
BILL: HB 541
SHORT TITLE:INCREASED APPROPRIATIONS REQUIRE OFFSET
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
03/24/04 3058 (H) READ THE FIRST TIME -
REFERRALS
03/24/04 3058 (H) STA, W&M, FIN
03/24/04 3058 (H) FN1: INDETERMINATE(GOV/ALL
DEPTS)
03/24/04 3058 (H) GOVERNOR'S TRANSMITTAL LETTER
03/24/04 3058 (H) REFERRED TO STATE AFFAIRS
04/21/04 (H) STA AT 8:00 AM CAPITOL 102
WITNESS REGISTER
LAURA GLAISER, Director
Division of Elections
Office of the Lieutenant Governor
Juneau, Alaska
POSITION STATEMENT: Answered questions regarding Version U of
HB 523, on behalf of the division.
JIM SYKES, Election Specialist
Green Party of Alaska
Wasilla, Alaska
POSITION STATEMENT: Offered testimony regarding proposed
amendments to Version U of HB 523.
JOE SONNEMAN
Juneau, Alaska
POSITION STATEMENT: Testified on his own behalf during the
hearing on HB 523.
DAVID W. MARQUEZ, Chief Assistant Attorney General
Legislation & Regulations Section
Office of the Attorney General
Department of Law
Juneau, Alaska
POSITION STATEMENT: Presented HB 525 on behalf of the House
Rules Committee, sponsor by request of the governor.
LISA FITZPATRICK, Chair
Alaska Human Rights Commission
Anchorage, Alaska
POSITION STATEMENT: Testified during the hearing on HB 525.
CHERYL FRASCA, Director
Office of the Director
Office of Management & Budget (OMB)
Office of the Governor
Juneau, Alaska
POSITION STATEMENT: Presented a summary of HB 541 on behalf of
OMB.
ACTION NARRATIVE
TAPE 04-65, SIDE A
Number 0001
CHAIR BRUCE WEYHRAUCH called the House State Affairs Standing
Committee meeting to order at 8:05 a.m. Representatives Holm,
Seaton, Gruenberg, and Weyhrauch were present at the call to
order. Representatives Coghill and Lynn arrived as the meeting
was in progress.
HB 523-VOTERS/VOTING/POLITICAL PARTIES/ELECTIONS
Number 0088
CHAIR WEYHRAUCH announced that the first order of business was
HOUSE BILL NO. 523, "An Act relating to qualifications of
voters, voter registration, voter residence, precinct boundary
modification, recognized political parties, voters unaffiliated
with political parties, early voting, absentee voting, ballot
counting, voting by mail, initiative, referendum, recall, and
definitions; and providing for an effective date."
Number 0102
CHAIR WEYHRAUCH moved to adopt the committee substitute (CS) for
HB 523, Version 23-GH2021\U, Kurtz, 4/19/04, as a work draft.
REPRESENTATIVE HOLM objected for discussion purposes.
Number 0148
LAURA GLAISER, Director, Division of Elections, Office of the
Lieutenant Governor, informed the committee that when talking
with the division's regional supervisors, they suggested the
best way to notify a voter is in writing. She noted that it is
possible that some papers in general circulation may not reach
certain people; therefore, perhaps the best way to reach people
would be to require the division do so in writing.
CHAIR WEYHRAUCH turned attention to Section 4 of Version U, on
page4, [lines 15-16], which read as follows:
(1) whenever possible, sending written notice of the
change to each affected registered voter in the
precinct;
CHAIR WEYHRAUCH asked if it wouldn't always be possible to send
written notice.
MS. GLAISER answered yes. She said a voter gets written notice,
because the division sends that voter a new voter card when it
changes the precinct boundary or polling place location.
CHAIR WEYHRAUCH asked if it is necessary to use the phrase
"whenever possible". He asked, "Isn't it always possible?"
MS. GLAISER answered yes.
Number 0340
REPRESENTATIVE SEATON suggested there may not be sufficient
length of time in which to get out a notice regarding moving a
polling place.
MS. GLAISER explained that a lasting change means written notice
to the voter, whereas as much notice as possible is given in the
case of emergency polling place changes, for example.
Number 0381
REPRESENTATIVE GRUENBERG explained that the "whenever possible"
language was added for the reason that Representative Seaton had
just suggested. In response to remarks from Chair Weyhrauch, he
emphasized that the only changes in Version U are from the
adopted amendments that were incorporated into it.
Number 0458
REPRESENTATIVE SEATON moved to adopt Amendment 1, labeled 23-
GH2021\U.11, Kurtz, 4/20/04, which read as follows:
Page 18, lines 21 - 27:
Delete all material and insert:
"(3) meets the definition of a political
party in AS 15.60.010."
Page 18, line 29, following the second use of "party":
Insert "meets the definition of a political party
in AS 15.60.010."
Page 18, line 30, through page 19, line 4:
Delete all material.
Page 19, line 7:
Delete "(b)(2)"
Insert "(b)"
Page 19, lines 11 - 26:
Delete all material and insert:
"(d) Within 10 days after a verification under
(c) of this section, the director shall provide to a
political group seeking recognized political party
status under (a) of this section written notification
when the political group has obtained recognized
political party status.
(e) The director may not withdraw recognized
political party status from a political group that no
longer meets the definition of political party except
following the verification immediately after a general
election at which a governor was elected. The
director shall provide written notification to the
political party of the withdrawal of recognized
political party status."
Number 0462
CHAIR WEYHRAUCH objected for discussion purposes.
Number 0500
REPRESENTATIVE SEATON explained that Sections 41 and 42 were
incongruous. [Amendment 1] would ensure those two sections are
compatible.
CHAIR WEYHRAUCH noted that the first three changes proposed in
Amendment 1 address the political party issue. The next change
proposed by Amendment 1, on page 19, line 7, is a conforming
part of the amendment. He asked if the proposed change to page
19, lines 11-26, was suggested by Legislative Legal and Research
Services.
REPRESENTATIVE SEATON answered yes and pointed to a memorandum
from Kathryn Kurtz, Legislative Counsel, Legislative Legal and
Research Services, [included in the committee packet], which
describes the differences between Sections 41 and 42.
MS. GLAISER directed attention to page 1, line 21 of Amendment
1, [as numbered on the amendment], and suggested that political
party status cannot be withdrawn from a political group, because
a group was never a political party; therefore, it should be
changed to "political party that no longer meets the definition
of political party".
Number 0745
REPRESENTATIVE GRUENBERG suggested a conceptual amendment to
Amendment 1, to authorize Legislative Legal and Research
Services to do what's necessary to make a technical correction
in subsection (e).
REPRESENTATIVE SEATON indicated that he thinks if political
party status is withdrawn, what is left is a political group.
He said he doesn't know if there is a definition for political
group.
MS. GLAISER explained that the party status is withdrawn from a
group. She reminded the committee that she is not an
[attorney].
Number 0832
REPRESENTATIVE COGHILL recommended turning over the drafting to
Legislative Legal and Research Services, but not before the
committee hammers out the meaning.
CHAIR WEYHRAUCH said the current language of subsection (e) does
seem convoluted.
MS. GLAISER explained:
We were trying to say that if you're a party - if you
qualified to be a party by this date - you remain a
party until after the verification of the votes at the
end of the election. So, that's why I'm talking in
terms of party and not group ....
REPRESENTATIVE COGHILL offered his understanding that the status
could not be changed until "the verification of numbers." He
asked Ms. Glaiser to give a hypothetical example for
clarification.
MS. GLAISER offered the following:
Say, for instance, ... the Republican party qualified
as a party, I think, by June 1 of an election year -
they ... hadn't nominated a candidate who gained 3
percent, but they had 3 percent of the voters. That's
the verification numbers we're talking about. ...
All this section says is, "You are a party."
We ... look at the party numbers monthly. If, say, in
July, the Republican party went under 3 percent - you
know, the voters became undeclared, nonpartisan,
changed their voter registration, and the numbers
dropped below 3 percent - this is saying ... they are
still a recognized political party until after the
elections are certified, after the November general
election. ... Because in the current law right now,
there's no provision for that, but we have candidates
filing, and they expect to be part of a party. If the
party lost status, what does that do to the candidate,
to the voter? So, that was what our attempt was in
putting this language into law.
Number 1211
REPRESENTATIVE SEATON observed that political party status would
not be withdrawn, except following the verification immediately
following the general election at which the governor was
elected, thus the political party would have status through the
next gubernatorial election. He gave some examples and
explained that the intent of this language is to get rid of
skullduggery to get rid of the worry that people will play with
party status. He explained that Ms. Kurtz noted that there was
a conflict between "what we were saying before and what we ...
had in Section 42."
Number 1115
REPRESENTATIVE COGHILL stated his understanding that the
verification would really be after the general election, even
[the division] is still required to verify monthly. He asked,
"If the real verification is after the general election, do we
need to have that other mechanism?"
MS. GLAISER responded that the new language added by the
committee may provide that "you get locked in with your
gubernatorial candidate." She said that if that's the case,
then what Representative Coghill says is true. She mentioned
the way the law is written and said [the division] was going to
follow the normal policy, which was that "you had the 3 percent
with your candidate or you had the numbers." She explained that
the verification isn't a timely process; it's an ongoing process
of looking at numbers.
REPRESENTATIVE SEATON explained that there are two ways to
qualify as a political party. One is to get 3 percent at an
election, and the other is in regard to how many people are
registered in the party. He added, "And this isn't meant to
knock out one way of qualifying or another." He explained as
follows:
The part about the gubernatorial election is based on
if you got 3 percent of the vote at the previous
gubernatorial election, then you're a party through
the next gubernatorial election. The verification of
the number of voters is for a party that didn't have
somebody get 3 percent but ... has the requisite
number of voters that ... have registered. So,
there's two different ways, and what this is doing is
saying that if you got 3 percent of the vote in the
gubernatorial election, you're qualified through the
next gubernatorial election. The other process is the
number of voters who have actually signed up a voter
card and have specified whatever political party.
Number 1283
REPRESENTATIVE COGHILL explained that his confusion had been
that he didn't want two standards that would be working against
each other, but he said he thinks Representative Seaton
clarified that issue.
REPRESENTATIVE SEATON replied that that had been his problem
with the last amendment that the committee had made (in a prior
hearing), because the committee had not seen that there was a
conflict between Section 41 and Section 42.
Number 1325
REPRESENTATIVE GRUENBERG read subsection (e) in Amendment 1. He
remarked that Ms. Kurtz was suggesting that the language [on
line 22 as numbered on Amendment 1] be changed from "group" to
"party", then it ought to also be changed [on page 2, line1, as
numbered in Amendment 1], in order to be consistent.
MS. GLAISER responded that that is what had thrown her. She
stated, "You can only withdraw political party status from a
political party." She deferred to legal counsel [of Legislative
Legal and Research Services] for further comment. She added, "I
know how to administer it and I know who we're supposed to
verify." In response to a request for clarification from Chair
Weyhrauch, she said she knows who [the division] sends the
letters to; it's to the party. She said, "It's legally correct
to refer to them as a group because they've lost the status."
REPRESENTATIVE COGHILL said, "We know if they've lost their
status, they're technically a group, but they've applied to be a
party."
REPRESENTATIVE GRUENBERG asked if [Ms. Glaiser] wants the entity
to be a party until notified, or to be a group as soon as it
doesn't meet its criteria, whether it has been notified or not.
MS. GLAISER said she thinks the parties want to be a party until
they are told they are not. She indicated that there has been
some confusion as to how to administer situations in which the
party has lost status "by straight numbers." She said she
thinks it's fair that a party remains a party until it is told
it's not.
Number 1500
REPRESENTATIVE GRUENBERG moved to adopt a conceptual amendment
to Amendment 1, to change the word "group" to "party" on page 1,
line 22 [as numbered on Amendment 1]. He offered his
understanding that "they won't be a party until you notify
them."
MS. GLAISER clarified, "They will be a party until they're told
they're not a party." She said [the division] wants to protect
the party status through the election cycle.
Number 1578
CHAIR WEYHRAUCH said he thinks the committee will adopt
Amendment 1, "with the caveat that we need to talk with Ms.
Kurtz and the director, and then look at this language when it
comes back for the next committee meeting."
CHAIR WEYHRAUCH said, "I had an objection to that amendment; I'm
going to withdraw the objection."
[The committee treated Amendment 1 as adopted.]
Number 1590
REPRESENTATIVE GRUENBERG brought attention to Amendment 2,
labeled 23-GH2021\U.9, Kurtz, 4/20/04, which read as follows:
Page 18, line 26:
Delete "three"
Insert "one"
Page 19, line 2:
Delete "three"
Insert "one"
Page 20, line 11:
Delete "three"
Insert "one [THREE]"
Number 1607
CHAIR WEYHRAUCH asked Representative Gruenberg to move Amendment
2.
REPRESENTATIVE GRUENBERG said, "I will."
CHAIR WEYHRAUCH said, "And I object."
REPRESENTATIVE GRUENBERG indicated that, because of Amendment 1,
the part of Amendment 2 addressing page 18, line 26, and page
19, line 2, is no longer necessary; therefore, he said that part
of Amendment 2 should be deleted.
CHAIR WEYHRAUCH announced that the amendment to Amendment 2 was
adopted without objection.
Number 1700
REPRESENTATIVE GRUENBERG explained that the remaining part of
Amendment 2 would eliminate the 3-percent requirement and
changes it to 1 percent, which would allow a group to achieve
party status if they have registered voters in the state equal
in number to at least 1 percent of the total votes cast per
governor at the proceeding general election at which the
governor was elected. He directed attention to a letter from
Mr. Sykes, which lists several states, none of which have as
high as a 3-percent requirement. He mentioned they have
alternative methods of reaching ballot status. He concluded,
"This is just a very, very difficult hurdle for the Green party
to overcome."
Number 1778
JIM SYKES, Election Specialist, Green Party of Alaska, told the
committee that he has been dealing with these election issues
for approximately 15 years. In regard to Amendment 2 [as
amended], he stated that it is well recognized that it is many
times more difficult to register people to a political party
than it is to attract people to a candidate at the polls. He
offered his belief that there are presently only five states
that have requirements that speak to both a ballot test, where a
certain number of votes are required, and a registration test,
where there has to be a certain number of people registered to a
particular political party. He said, "In no case is the
registration test anywhere near the level of the ballot test,
except in Alaska." He offered examples from the previously
mentioned handout.
MR. SYKES said it's not just the Green party that is concerned
with this issue; the Libertarian party actually gained ballot
status in 1982 and retained that status for three general
elections. He added that he doesn't think anybody was
particularly hurt by the fact that Libertarians had access to
the ballot during that time. He continued as follows:
In this particular election, they lost ballot status
temporarily; they had to register a few more voters,
because they were right on that percentage. And I
think that if you take a look at what is required
statistically to show that you're registering people
through a given political party, 1 percent is a much
more reasonable standard.
The other thing that I would add is that the Greens
had as high as 12.5-percent vote in a statewide race,
even though we've never had more than 1 percent of the
voters in the party. And I think that we can point to
past elections and show that, as a small party, we're
perhaps one of the most active in the past 15 years.
So, I would encourage you to consider this amendment
and to support it.
... The other thing I would mention, since you've
just been discussing it, is that on pages 19 and 20,
Section 43, I think that the intent of what you're
doing here is to provide political party recognition
for 4 years, if somebody gets 3 percent in a statewide
race. And it does occur to me that ... historically
we've done this for four years, and I think it's due
to our litigation this past year that recognizes that
a statewide race is a statewide race. I think it
would be simpler for the Division of Elections and for
political parties to be able to have ballot status for
four years, regardless of when they obtain it. I can
see somebody saying ..., "We had a candidate at 3
percent in a U.S. House race in a non-governor year.
Why is that less valuable than getting 3 percent in
the same U.S. House of Representatives race in a
governor's year?" And so, I think that, both for
consistency and treating everything equally, ... just
saying, "To get 3 percent, you got four years from the
time that the election is certified that you get 3
percent, until two general elections hence." And
that's the change that I would recommend that you
make, in terms of what you were talking about on
political parties.
In terms of political groups: If somebody loses their
ballot status, I think it's reasonable to give them a
fairly lengthy period of time to meet the requirements
again. If you've got several thousand people that
have taken the time to register as a political party,
no matter what it is, I don't think that they should
have to reregister ... after they've lost their
status, if it's a temporary thing - even if it's, say,
four years. So, they might be a political group for
four years before they regain full ballot recognition,
but I don't think that hurts anybody to let the
Division of Elections continue to track them, so long
as they apply, as is now the law.
MR. SYKES noted that the trend across the nation, both in
legislation and in legal interpretation in the court, is to make
ballot access more accessible, not less accessible. He stated
that he thinks HB 523 "takes a good step in that direction."
Number 1993
REPRESENTATIVE GRUENBERG revealed that during his own race he
almost lost the election to a candidate in the Green party;
therefore, he said he has somewhat of a conflict on this issue.
Notwithstanding that, he said he would not ask to be excused
from voting, because, "If it's good policy, it should be good
policy, even if it's not good for me personally."
[Chair Weyhrauch turned over the gavel to Vice-Chair Holm.]
Number 2045
REPRESENTATIVE COGHILL said he wants to know the history behind
the 3-percent requirement. He offered his understanding that it
used to be 10 percent.
Number 2071
REPRESENTATIVE SYKES confirmed that the requirement used to be
10 percent, but was challenged by the Alaska Independent party.
He said, "There was no way to reach party registration tests.
If I recall correctly, I believe it was 1996 that the
legislature brought that rule into effect." He said he doesn't
know why the 3-percent level was chosen, but [the Green party]
did not support it. He surmised that there was an impetus to
provide another avenue to ballot access, but there probably
wasn't a lot of discussion about what a number should be."
Number 2120
VICE-CHAIR HOLM mentioned the [most recent] governor's race in
California. He said, "I don't think any of us know what the
right percentage ought to be to make it reasonable for the
choices at the ballot box for the electorate."
REPRESENTATIVE SYKES said he thinks the legal standard that is
found in most elections cases of this nature is called, "a
modicum of support." Many legislatures have defined this in
different ways. He said he thinks a reasonable ballot test and
registration test can be established. He noted that, currently,
there is a fairly large wave across the country where people are
registering away from political parties rather than to political
parties. He said, "All we're asking is that this reality be
recognized." He concluded, "It's clear that a modicum of
support at the registration should be much lower than a ballot
test, and that's what I was trying to get across."
REPRESENTATIVE GRUENBERG suggested that the committee table
Amendment 2 [as amended], so that Representative Coghill could
research the issue.
Number 2199
REPRESENTATIVE COGHILL said one of the things that he will try
to reconcile is in regard to petition requirements against the
modicum of support issue.
Number 2233
REPRESENTATIVE GRUENBERG offered to withdraw Amendment 2 [as
amended].
VICE-CHAIR HOLM suggested Amendment 2 [as amended] just be set
aside.
Number 2273
REPRESENTATIVE GRUENBERG indicated that Joe Sonneman would speak
to Amendment 3, which read as follows [original punctuation
provided]:
Page 1, line 5, following "absentee voting,":
Insert "ballot design,"
Page 4, following line 29:
Insert new bill section to read:
*Sec. AS 15.15.030(6) is repealed and reenacted
to read:
(6) The order in which candidates for each
office are placed on the general election ballot shall
be randomly determined by the director for the lowest-
numbered precinct in which candidates are running.
The order of placement shall be rotated for each
successively numbered precinct. Absentee ballots in
each house shall be printed as though they were the
highest-numbered precinct in the house district.
Renumber the following paragraphs accordingly.
Page 21, line 13:
Delete "secs. 18-40"
Insert "secs. 19-41"
Number 2297
JOE SONNEMAN, testifying on his own behalf, told the committee
that he is a long-time Juneau resident and studied political
science in college and earned a Ph.D. in government. He said he
is aware of some of the history of what is called, "name order
effect." Mr. Sonneman summarized his written testimony. He
offered a glimpse of political science history and the use of
statistics, and explained that, [before rotating ballots],
candidates would change their names to be at the top of an
alphabetical listing.
MR. SONNEMAN
TAPE 04-65, SIDE B
Number 2347
MR. SONNEMAN described a new random system developed by the
Division of Elections in about 1995 [as described in Mr.
Sonneman's letter]. He related that there was some confusion,
because voters would show up at the voting place with a copy of
the voting order as published in the newspaper, and they would
find a different order at the polling place. Mr. Sonneman said
that at that time he tried to get the division to stick with the
ballot rotation system, even though it may cost a little bit
more, because "it had served Alaska so well for so long." The
division declined, and Mr. Sonneman brought the case to superior
court, where the court ruled in summary judgment for the State
[of Alaska]. On an appeal, the Alaska Supreme Court upheld that
ruling by a 3-2 vote. Mr. Sonneman indicated that "the
dissenters" agreed that the cost savings [of the random system]
was not that much, the importance of elections was substantial,
and there was a material factual issue regarding whether there
really was a name order effect that the state had not provided
any evidence to contradict.
MR. SONNEMAN stated that many studies show that name order
effect is as high as 6 percent and his concern is that many
elections in Alaska are decided by narrower votes. He stated,
"When the ballot order is decided by means of a lottery, you
could potentially have candidates ... achieving office by means
of a lottery, rather than by means of an election."
Number 2192
MR. SONNEMAN offered his understanding that Representative
Gruenberg's [Amendment 3] would adopt a middle road between
full-blown ballot rotation, where each letter [of the alphabet]
gets a different ballot, and the lottery method. [Amendment 3]
proposes a lottery by precinct, instead of by House district.
He said this method would result in a more random effect than
the current method and would probably prevent manipulation and
limit or eliminate most of the "lottery effect." It would
probably cost a little more, but not as much as full-blown
ballot rotation. In terms of cost, Mr. Sonneman queried, "If
this was something that Alaska could afford when the state
budget was $150 million or less ... why can't we afford it now
when it's $2 billion or so?"
MR. SONNEMAN concluded as follows:
So, I think the principle is you really want fair
elections. What is fair is to have an election rather
than a lottery, and Representative Gruenberg's
[amendment] is a middle road that will probably get
you most of the way there. I personally still have
the preference for the ballot rotation system we used
for 70 years.
Number 2107
MR. SONNEMAN, in response to a question from Representative
Lynn, he indicated that the results of the study regarding the
6-percent name order effect were found in Ohio. He said he
thinks Alaska may have a higher name order effect. He explained
that the name order effect is less where parties are important,
and in Alaska, parties are not as important.
REPRESENTATIVE LYNN said described the randomness of where a
person will be on the ballot as a form of legalized gambling.
He asked for clarification regarding "rotating between the
precincts."
REPRESENTATIVE GRUENBERG suggested that Amendment 3 should be
offered. He noted that there is a typographical error that he
wanted to correct before offering Amendment 3. In the last
sentence of Amendment 3, the word "district" needs to be added
after the word "house".
REPRESENTATIVE GRUENBERG highlighted three types of races in
Alaska: statewide, Senate - which involve two house districts,
and house district races. Currently, the ballots are set for
each house district; therefore, for a statewide race, they
rotate through the 40 house districts. He described the order
in the Senate race. Representative Gruenberg stated that the
place that it's really unfair is in the house races, because the
ballots are set for the entire house district. He explained,
"If you're on top, you're on top for the whole thing." He said
Amendment 3 would rotate by precinct. He offered an example.
Representative Gruenberg said the absentees shall be given a
ballot as though the absentees were the last precinct. He
offered an example wherein if there were five precincts, there
would be six sets of ballots to accommodate the absentee ballot.
The candidates would rotate all the way through.
Number 1858
REPRESENTATIVE LYNN said he sees a precinct as a smaller
district. He said it's probably true for all candidates that
they [have stronger support] in some precincts than in others.
He stated, "And so, [Amendment 3] really doesn't solve the
problem, ... because if I get in the wrong position in my
weakest precinct, I could have a problem." He asked if there
would be any way to fix that.
REPRESENTATIVE GRUENBERG suggested that the committee could
decide to go back to the "rolling" ballot. He noted that part
of Mr. Sonneman's written testimony shows the language of the
previous rolling ballot statute. He said he would have no
problem with using that language, but he said it seems that it
would result in a higher fiscal note.
Number 1772
REPRESENTATIVE LYNN asked how much higher the fiscal note would
be. He stated that he thinks money spent on the most fair
election possible is money well invested.
Number 1745
MR. SONNEMAN responded that in 1995, the amount "was thought to
be about" $65,000 per election cycle.
Number 1713
MS. GLAISER said the division could look into that and prepare
those numbers for the committee. She noted that when SB 5 was
heard, the full rolling [ballot] was [estimated to be] between
$100,000 and $200,000; however, the fiscal notes prepared at
that time didn't include an analysis and showed a zero fiscal
note. She said, "It depends on how fiscal notes are prepared
and what's requested. So, we couldn't get any history on that
savings or that total. I can't believe it would be more than
that."
MS. GLAISER expressed that from the division's standpoint, the
issue of voter confusion is important. She indicated that
voters are often looking for their candidate on the ballot and
they often do take a sample ballot or the official election
pamphlet with them, which she said can only be printed in one
order. She continued as follows:
And they do mark it, and they do go hand in hand with
a marked ballot. And when those names aren't in that
order, then they've cast the ballot for the wrong
person. ... That's a policy discussion for you all,
but from our point, I don't know which one has - I
don't know whether the right word is - more value.
But, ... that confusion, is that a voter that intended
to vote for you voted the wrong [ballot], because they
took this piece of paper with them and went in and
went "third on down," and colored it in? I'm not
certain.
Number 1636
VICE-CHAIR HOLM responded, "You know, sometimes I think we try
to legislate against people not paying attention, and I don't
think it's possible for us to do that." He illustrated how a
different ballot order may have affected his own election
outcome. He asked how difficult it is for the division to
implement changes to the ballot.
MS. GLAISER indicated that it would just mean more ballots
programmed into the system and more printing done. She noted
that an even distribution of ballots would need to be sent to
absentee ballot stations. She explained, "Because if we send an
absentee ballot station just the one where 'F' was on top and
'Z' was on the bottom, 'Z' would probably sue the division that
we didn't equitably distribute the ballots." She said
[Amendment 3] is a concern because it would still be a lottery.
The division would choose letters of the alphabet for top and
bottom placement and a candidate could say that the division
gave him/her the worst precinct [related to how much support
that candidate has in the precinct], even though that would not
be the intent of the division.
Number 1578
REPRESENTATIVE GRUENBERG responded as follows:
For statewide races, the only decision that's the
random choice that the [division] would make would be,
in district 1, precinct 1 - whatever Bill William's
lowest numbered precinct [is] - they would set it.
And then it would rotate strictly throughout the whole
state. And it would be the same for the senate
district; the order would be set in the lower numbered
house district and it would go through that entire
senate district, and then it would be set in each
house district for the house race. But you're right -
it is random at some point.
Number 1400
REPRESENTATIVE COGHILL said huge amounts of money are spent for
name recognition. He said, "I think that would overrule name
placement. I would have a hard time believing that even that 2-
percent number would be higher or even as high as that." He
said he would like to see a challenge to that before throwing
the ballot into a rotating style that could create the problems
that Ms. Glaiser mentioned regarding possible litigation. He
said, "To me, I just can't, in my mind, believe that it would
trump name recognition." He said he is not a big fan of
[Amendment 3], and he revealed that without any study he is not
willing to go to the rotating ballot. He stated, "I think
consistency in elections brings us to a higher degree of
integrity, and I think we need to stay as consistent as
possible." He said if a candidate whose last name begins with
an "A" is running against a candidate whose last name begins
with a "Z," he just doesn't know that "the people in Alaska are
going to fall - at a 2-percent rate - into just taking the first
name on the ballot."
REPRESENTATIVE LYNN asked if the division has any numbers,
statistics, or guesses on what the name order effects might be.
MS. GLAISER answered no. She added that she doesn't think it
would be desirable to have the division maintaining [that
information]. She said that is a candidate and political
consultant awareness; the division just keeps the vote total.
She said she thinks the court case studies are in the files, but
the division doesn't study them.
REPRESENTATIVE LYNN said he thinks this is an important
consideration that needs further examination and appropriate
action.
VICE-CHAIR HOLM discussed whether the committee should set
Amendment 3 aside until the matter is studied further.
MS. GLAISER asked the committee if it wants the division to do a
cost analysis of [the Amendment 3 plan] versus the full rolling
[ballot].
Number 1155
REPRESENTATIVE COGHILL said he thinks the committee needs to
address policy considerations first and not just decide based
upon the cost.
VICE-CHAIR HOLM concurred.
Number 1116
REPRESENTATIVE LYNN offered his understanding that, currently,
letters are randomly pulled out and the first letter is put on
top. He asked if that is correct.
MS. GLAISER answered yes.
REPRESENTATIVE GRUENBERG asked if there is interest in pursuing
[Amendment 3] with the full committee.
VICE-CHAIR HOLM indicated that he would like to give [Amendment
3] a fair hearing when more committee members are present.
Number 1083
REPRESENTATIVE GRUENBERG withdrew Amendment 3 and indicated that
he would offer it later with another amendment addressing the
issue of a rolling ballot.
Number 0931
REPRESENTATIVE GRUENBERG turned to Amendment 4, labeled 23-
GH2021\U.6, Kurtz, 4/20/04, which read as follows:
Page 11, line 21, following "display":
Insert "at least"
Page 14, line 18, following "display":
Insert "at least"
Page 17, line 28, following "post":
Insert "at least"
REPRESENTATIVE GRUENBERG explained that the parts of the bill
that Amendment 4 would affect address initiative, referendum,
and recall, and where notices are displayed. He indicated that
Amendment 4 is a conforming amendment. He said some of the
polling places are fairly large and could have more than one
notice displayed.
VICE-CHAIR HOLM asked if there were any comments. He announced
that Amendment 4, without objection, [was adopted].
Number 0820
REPRESENTATIVE GRUENBERG turned to Amendment 5, labeled 23-
GH2021\U.5, Kurtz, 4/20/04, which read as follows:
Page 10, line 6, following "address":
Insert "of each person signing the petition"
Page 12, lines 20 - 21:
Delete "names, dates of birth, signatures, and
addresses"
Insert "name, date of birth, signature, and
address of each person signing the petition"
Page 12, line 22:
Delete "[,]"
Insert "[SIGNATURES AND ADDRESSES,]"
Page 15, line 27:
Delete "signatures, and addresses; ["
Insert "signature, and address of each person
signing the petition; [SIGNATURES AND ADDRESSES"
REPRESENTATIVE GRUENBERG said Amendment 5 makes it clear that
the information required on the petition is that of the person
signing the petition.
VICE-CHAIR HOLM questioned whether Amendment 5 was necessary.
REPRESENTATIVE GRUENBERG said he thinks it makes the language a
little clearer. In response to comments from Vice-Chair Holm,
he indicated that the rest of Amendment 5 is conforming
language.
VICE-CHAIR HOLM asked if there was any objection to Amendment 5.
[No objection was stated and Amendment 5 was treated as
adopted.]
Number 0730
REPRESENTATIVE GRUENBERG turned to Amendment 6, labeled 23-
GH2021\U.8, Kurtz, 4/20/04, which read as follows:
Page 20, line 23, following "voter":
Insert ", as that term is defined in AS 15.60.010,"
REPRESENTATIVE GRUENBERG explained that the part of the bill
that Amendment 6 addresses deals with an incorporation election
in a municipality. It's a technical amendment that addresses
who is able to vote in the incorporation election. He said it
was Ms. Kurtz's suggestion to define "voter". In response to a
question from Vice-Chair Holm, he explained that [that
definition from] AS 15.60.010 is not in Title 29, which is the
reason why the reference was necessary.
Number 0605
MS. GLAISER directed attention to page 21, line 4, where
"qualified voter" is defined.
REPRESENTATIVE GRUENBERG observed that that meant [Amendment 6]
is no longer necessary.
Number 0557
REPRESENTATIVE GRUENBERG withdrew Amendment 6.
[Vice-Chair Holm turned the gavel back over to Chair Weyhrauch.]
Number 0531
REPRESENTATIVE GRUENBERG requested that the amendments that were
adopted today be incorporated into a new committee substitute by
the next hearing on HB 523.
[HB 523 was heard and held.]
HB 525-HUMAN RIGHTS COMMISSION PROCEDURES
Number 0495
CHAIR WEYHRAUCH announced that the next order of business was
HOUSE BILL NO. 525, "An Act relating to complaints filed with,
and investigations, hearings, and orders of, the State
Commission for Human Rights; making conforming amendments; and
providing for an effective date."
CHAIR WEYHRAUCH announced that before the committee, as a work
draft, was Version 23-GH2024\D, Bullock, 4/19/04.
Number 0472
DAVID W. MARQUEZ, Chief Assistant Attorney General, Legislation
& Regulations Section, Office of the Attorney General,
Department of Law, presented HB 525 on behalf of the House Rules
Committee, sponsor by request of the governor. He read portions
from his written testimony [included in the committee packet] as
follows:
We believe that ... HB 525 enhances the effectiveness
of the Alaska State Commission for Human Rights by
allowing the commission to evaluate complaints of
unlawful discrimination and to allocate its resources
to prosecuting those complaints that will best serve
the commission's goal of eliminating unlawful
discrimination.
MR. MARQUEZ stated that other benefits of HB 525 would be to
improve commission procedures, enhance the fairness of the
commission's procedures, clarify the remedies that the
commission may award to remedy unlawful discrimination, and make
certain housekeeping changes.
MR. MARQUEZ noted that, presently, the commission has been
bogged down because of a ruling by the Alaska Supreme Court in
the Department of Fish & Game v. Meyer. He said the case
requires the commission to take to hearing any complaint
supported by substantial evidence of unlawful discrimination,
without regard to such factors as weakness of the evidence or
the strength of an employer's permanent defenses. He explained
that, to overcome that burden, "you would have to show that it's
completely lacking in merit." The result has been that the
commission takes every complaint and doesn't have any real
discretion in deciding which cases to take forward.
MR. MARQUEZ stated that HB 525 would allow the executive
director [of the commission] to choose the complaints of
unlawful discrimination that merit pursuit, based on factors
such as strength of evidence, severity of alleged violation,
employer's history before the commission, or the complaint's
value in establishing precedent. The proposed legislation would
allow the commission to better marshal its resources towards
cases it feels are more important. Mr. Marquez indicated that
the commission is in favor of this aspect of the bill.
MR. MARQUEZ listed the ways in which HB 525 would improve
commission procedures. He said the bill would: permit
agreements during the prehearing conciliation phase to
compromise damage claims; require that agreements be reduced to
writing, and provide that agreements are enforceable as
commission orders; require the commission to follow procedures
in Administrative Procedure Act; and allow the commission to
issue a summary decision, which is similar to a motion for
summary judgment in the courts. He added that if the facts are
not disputed, the commission can make a ruling without providing
a full hearing.
MR. MARQUEZ listed the ways in which HB 525 would enhance
commission procedures. He said the bill would: require the
charges in the accusation that the executive director issues
after deciding to pursue a complaint to hearing be based on the
investigator's determination of substantial evidence; require
that substantial evidence support any new charges of unlawful
discrimination that are added when the accusation is amended;
require that respondent have an opportunity to address all
charges informally before being required to defend them in a
formal hearing; and tie the rate of interest awarded by
commission to legal rate in AS 09.30.070, bringing the
commission into conformity with other administrative agencies
and the courts, in terms of rate of interest.
MR. MARQUEZ, in regard to the remedies that the commission may
award to remedy unlawful discrimination, stated the following:
I think that it's important to note that this is not
the sole avenue for relief that a complainant would
have. The complainant, of course, can, as long as
they're within the statute of limitations, pursue a
remedy in court, and a court can fashion many remedies
that are not available under court decision to the
Alaska State Commission for Human Rights.
This is a system that has been instituted where people
can go to the commission for human rights and an
advocate can be assigned to them and take their case
forward. But, certainly at any time they can go to
the court. And legally, because of this procedure
that's set up, ... it's also reasonable to limit the
remedies that may be available to someone [who] goes
before the [commission], and delineating the remedies
will help assure certainty for the parties so that
they'll know what's ahead of them. ... The remedies
that are available are very clear.
What we have done in drafting this legislation is to
go through the court decisions and to set forthright
in the statute what the courts have decided for the
commission ....
MR. MARQUEZ read from his written testimony the ways HB 525
would clarify the remedies that the commission may award. He
said it would: prohibit non-economic or punitive damages; limit
remedies ... to restoration of actual benefits lost; allow the
award of front pay [for a period of up to one year if a return
to work is impossible because no vacancy exists, the employer's
unlawful discrimination made the employee incapable of work, or
the working environment deteriorated intolerable.]
[The above bracketed testimony was not on tape, but was
reconstructed from Mr. Marquez's written testimony.]
TAPE 04-66, SIDE A
Number 0001
MR. MARQUEZ concluded with the reasons that HB 525 would clarify
the remedies that the commission may award. He said it would
require any order to pay wages to be reduced by the amount the
employee should be able to earn with a "reasonably diligent"
effort. In regard to the housekeeping changes effected by HB
520, he noted that the bill would incorporate the current
regulation's 180-day limitation period for filing a complaint.
Number 00057
REPRESENTATIVE HOLM stated he is concerned that someone can make
an accusation and is instantaneously put into an adversarial
position where he/she has to provide for an attorney for defense
against accusation, without any kind of Rule 82 compensation -
any kind of ability that if the commission is wrong and brought
a frivolous case to the person, he/she would still have to pay
the expense of the defense. He said he is talking about small
business. Because of the standard that provides that [the case]
must be completely lacking in standard, all cases are taken. He
said it is only reasonable that the commission should have to
pay out of its own budget for cases it loses, to help bring the
small business back into a modicum of "where they started from."
REPRESENTATIVE HOLM explained that he is trying to ensure that
the commission has "a thumb on top of it that keeps it from just
taking on any frivolous case and putting the small business
people in the state under a great amount of undue cost." He
indicated that this is what has been going on, to date.
Number 0257
MR. MARQUEZ responded that he thinks adopting [HB 525] would go
a long way toward solving the problem, because it would
eliminate the need for the commission to take every case
forward. It would have the discretion to drop some cases that
it felt lacked merit or would not provide the state's best
interest in pursuing the claim forward.
REPRESENTATIVE HOLM said he appreciates that, but he would "like
to have another side board." He asked Mr. Marquez to comment on
whether or not he thinks an additional sideboard would be
beneficial.
MR. MARQUEZ noted that, currently, the commission has the power,
under AS 18.80.130 (e), to order the payment of reasonable
expenses, including reasonable attorney's fees, to a private
party before the commission, when the commission, in its
discretion, determines the allowance is appropriate. He offered
his understanding that currently the commission does not use its
discretion to award attorneys' fees to the private parties that
come as defendants before the commission. He revealed that a
regulation exists, 6 AAC 30.492 (b), which read:
An award of attorney's fees and costs will be made
against a complainant upon a showing that he or she
pursued an action not authorized by the executive
director that was frivolous, unreasonable, or
groundless, or that an action authorized by the
executive director was based upon information
furnished in bad faith by complainant.
Number 0453
REPRESENTATIVE HOLM stated that he wants the pressure on the
commission to do its footwork first so there's no undue pressure
on small businesses to defend themselves. Furthermore, if the
commission pursues a case and looses, Representative Holm
stated, the cost of the case should come out of the commission's
budget.
MR. MARQUEZ offered his belief that the mechanism that
Representative Holm is describing would require a statutory
change; the current statute and regulations would not ensure
that the commission would award attorney's fees in the kind of
situations that Representative Holm is describing.
Number 0649
LISA FITZPATRICK, Chair, Alaska Human Rights Commission, told
the committee members that the commission has a "geographical
representation," with 7 members. She indicated that the
commission has grave concerns regarding the provisions regarding
the remedies, of which Mr. Marquez previously spoke. She stated
her concern that the remedies would take away the tools the
commission presently has that make it an effective commission.
MS. FITZPATRICK offered her understanding that the commission
operates on a budget of approximately $1.4 million. Presently,
the staff is comprised of 15 individuals: ten investigators,
one director, two supervisors, and two support staff members.
She noted that, while there are thousands of inquiries that come
to the door, the actual number of cases that get into a file
status "where they begin to be worked upon" is between 300-500 a
year. She continued as follows:
Of those cases, the way that they are handled is that
when a complaint that, at least on its face, has merit
- and that is it would have to allege (indisc.)
inventory process (indisc.) hit the parameters of the
statute - it's assigned to an investigator, and the
investigator (indisc.) an investigation to determine
whether or not there is initial preferences referring
to the standard of substantial evidence to determine
whether or not the commission will proceed with the
matter further Now, at every step along the way, the
(indisc.) commission and the individual that (indisc.)
at this point have the ability to either mediate the
case or, at some form of (indisc.) settle the case.
Frankly, that happens with great frequency. I would
think that probably the (indisc.) of cases are
resolved through ...
CHAIR WEYHRAUCH asked Ms. Fitzgerald to try to speak more
clearly.
MS. FITZGERALD said she was using a speakerphone at a
Legislative Information Office (LIO), but she couldn't tell what
the trouble with the sound was.
CHAIR WEYHRAUCH asked Ms. Fitzgerald if she would submit her
testimony in writing.
[HB 525 was heard and held.]
HB 541-INCREASED APPROPRIATIONS REQUIRE OFFSET
Number 0912
CHAIR WEYHRAUCH announced that the last order of business was
HOUSE BILL NO. 541, "An Act relating to consideration by the
legislature of the executive budget and other bills affecting
appropriations; and providing for an effective date."
CHAIR WEYHRAUCH mentioned that a committee substitute was
expected soon from Legislative Legal and Research Services.
Number 0923
CHERYL FRASCA, Director, Office of the Director, Office of
Management & Budget (OMB), Office of the Governor, presented a
summary of HB 541 on behalf of OMB. She explained that the
proposed legislation would require a legislator or [legislative]
committee proposing additional spending to identify either where
the revenues will come from to pay for it or an offsetting
budget reduction. She revealed that it is an concept to model
after the federal Gramm-Rudman-Hollings Act of 1990. She
explained that [OMB] envisions that the process would be done
through a fiscal note.
Number 0963
REPRESENTATIVE GRUENBERG indicated Section [1], which he said
begins, "It is not in order". He stated that he thinks that may
require a concurrent resolution to amend the Uniform Rules.
MS. FRASCA offered her understanding that Tamara Cook,
Legislative Legal and Research Services and Jim Baldwin,
Department of Law have held several discussion regarding HB 541
and she said she's "just getting up to speed on what those have
been."
Number 1010
MS. FRASCA, in response t a question from Chair Weyhrauch, noted
that the Gramm-Rudman-Hollings Act was originally intended as a
budget deficit reduction proposal; it required that the
comptroller general have the authority to make reductions if the
budget exceeded revenues. However, that was ruled as
unconstitutional. As a result, [the Act] has changed in scope
and nature. She indicated that "we" could check on what is the
current practice and how effective it is. She said [OMB] knows
that "this has got some difficult dilemmas," especially in
regard to checks and balances of the appropriation process.
MS. FRASCA reiterated that the idea behind the proposed
legislation is to look at how increased spending will be paid
for. She stated that when [OMB] proposes the governor's budget
in December, it has an obligation to outline its spending plan,
as well as to identify the revenues proposed to cover that plan.
Number 1089
CHAIR WEYHRAUCH said it's an interesting policy issue to
question who is ultimately responsible to have an "income equal
out go." He stated noted that the executive branch of
government has line-item veto and the obligation to submit a
budget, while the legislature makes "the other policy
determination."
MS. FRASCA added, "Then we veto [and] you have the opportunity
to override."
Number 1119
REPRESENTATIVE GRUENBERG suggested that [HB 541] may be within
the jurisdiction of the House Special Committee on Ways and
Means. He also indicated that he has held discussions with the
people involved with the Alaska Municipal League to consider
whether there should be a municipal fiscal note regarding the
impact of legislation on municipalities. He indicated that he
would like to discuss whether [HB 541] may be a vehicle to
include that issue. Representative Gruenberg stated that [HB
541] is a "great subject to take up" and he commended the
administration for his work.
[HB 541 was heard and held.]
ADJOURNMENT
Number 1150
There being no further business before the committee, the House
State Affairs Standing Committee meeting was adjourned at 10:00
a.m.
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