Legislature(2011 - 2012)CAPITOL 106

02/03/2011 08:00 AM House STATE AFFAIRS


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08:05:25 AM Start
08:05:36 AM Overview(s): Division of Elections
09:59:40 AM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Overview: TELECONFERENCED
Division of Elections
+ Bills Previously Heard/Scheduled TELECONFERENCED
                    ALASKA STATE LEGISLATURE                                                                                  
             HOUSE STATE AFFAIRS STANDING COMMITTEE                                                                           
                        February 3, 2011                                                                                        
                           8:05 a.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Bob Lynn, Chair                                                                                                  
Representative Wes Keller, Vice Chair                                                                                           
Representative Paul Seaton                                                                                                      
Representative Peggy Wilson                                                                                                     
Representative Max Gruenberg                                                                                                    
Representative Pete Petersen                                                                                                    
Representative Kyle Johansen                                                                                                    
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
All members present                                                                                                             
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
OVERVIEW(S):  DIVISION OF ELECTIONS                                                                                             
                                                                                                                                
     - HEARD                                                                                                                    
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
No previous action to record                                                                                                    
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
GAIL FENUMIAI, Executive Director                                                                                               
Division of Elections                                                                                                           
Office of the Lieutenant Governor                                                                                               
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Presented an overview of the Division of                                                                 
Elections.                                                                                                                      
                                                                                                                                
SARAH FELIX, Assistant Attorney General                                                                                         
Labor and State Affairs Section                                                                                                 
Civil Division (Juneau)                                                                                                         
Department of Law                                                                                                               
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Answered questions during the Division of                                                                
Elections overview.                                                                                                             
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
8:05:25 AM                                                                                                                    
                                                                                                                                
CHAIR BOB LYNN called the  House State Affairs Standing Committee                                                             
meeting to  order at 8:05  a.m.  Representatives  Keller, Seaton,                                                               
Wilson, Johansen  (via teleconference),  Petersen, and  Lynn were                                                               
present at the  call to order.   Representative Gruenberg arrived                                                               
as the meeting was in progress.                                                                                                 
                                                                                                                                
^OVERVIEW(S):  Division of Elections                                                                                            
              OVERVIEW(S):  Division of Elections                                                                           
                                                                                                                                
8:05:36 AM                                                                                                                    
                                                                                                                                
CHAIR  LYNN announced  that the  only order  of business  was the                                                               
overview by the Division of Elections.                                                                                          
                                                                                                                                
CHAIR  LYNN stated  his intent  to wait  for the  internal review                                                               
following the overview before considering legislation.                                                                          
                                                                                                                                
8:09:55 AM                                                                                                                    
                                                                                                                                
GAIL FENUMIAI, Executive Director,  Division of Elections, Office                                                               
of  the  Lieutenant  Governor,   presented  an  overview  of  the                                                               
Division of  Elections.  She  expressed her appreciation  for the                                                               
opportunity  to address  the questions  submitted to  her by  the                                                               
committee  [included  in  the committee  packet],  following  the                                                               
recent election, which  she characterized as the  election of its                                                               
kind in Alaska's history.                                                                                                       
                                                                                                                                
MS.  FENUMIAI listed  all the  responsibilities of  the division,                                                               
including:     conducting  all   state  and   federal  elections;                                                               
conducting  the regional  educational attendance  area elections,                                                               
which  are  school  board elections  in  unorganized  communities                                                               
throughout  Alaska;  conducting  coastal  resource  service  area                                                               
elections;  maintaining the  statewide  voter registration  list;                                                               
processing  initiative,  referendum,  and recall  petitions;  and                                                               
redistricting,  which will  happen  this  year, then  reassigning                                                               
voters to their new precincts.                                                                                                  
                                                                                                                                
8:12:01 AM                                                                                                                    
                                                                                                                                
MS.  FENUMIAI,   in  response  to  questions   from  Chair  Lynn,                                                               
regarding  redistricting, outlined  the process  being undertaken                                                               
by  the division  for redistricting,  and said  the redistricting                                                               
committee will most  likely submit its report in April  2012.  In                                                               
response to  a question regarding  law suits, [question 1  in the                                                               
handout], Ms.  Fenumiai shared the  division's view that  none of                                                               
the information  being shared during  the overview will  have any                                                               
impact  on ongoing  lawsuits against  the State  of Alaska.   She                                                               
said the Miller v. Treadwell case  is still pending.  She named a                                                             
couple  other  cases:     Rudolph  v.  State   of  Alaska,  which                                                             
challenges the  division's process of counting  write-in ballots,                                                               
and Perry v.  Treadwell, which is a state  election contest case.                                                             
She name those involved in both cases.                                                                                          
                                                                                                                                
8:16:03 AM                                                                                                                    
                                                                                                                                
MS. FENUMIAI  moved on to question  2 from the handout  - whether                                                               
similar [write-in  candidate] names could present  a problem with                                                               
regard  to [voters']  intent -  and said  this is  a hypothetical                                                               
question, which  is not  possible to  answer without  knowing the                                                               
extenuating  circumstances about  the write-in  campaign and  the                                                               
election.  Notwithstanding that, she  stated that the bottom line                                                               
is  that   the  Alaska  Supreme   Court  has   "historically  and                                                               
repeatedly admonished  the division to implement  and honor voter                                                               
intent in counting ballots."                                                                                                    
                                                                                                                                
8:16:41 AM                                                                                                                    
                                                                                                                                
SARAH FELIX, Assistant Attorney  General, Labor and State Affairs                                                               
Section, Civil Division (Juneau),  Department of Law, in response                                                               
to a  question by  Chair Lynn, said  the court,  when considering                                                               
issues of  voter intent,  looks at marks  on the  ballot, studies                                                               
surrounding circumstances  of the  campaign, and uses  a standard                                                               
by which it  seeks to "enfranchise a voter to  the maximum extent                                                               
possible."                                                                                                                      
                                                                                                                                
8:17:24 AM                                                                                                                    
                                                                                                                                
MS. FENUMIAI moved on to question  3 from the handout - regarding                                                               
custody ballots - and said  AS 15.15.030(2) requires that ballots                                                               
be numbered in  sequence to ensure simplicity  and prevent fraud.                                                               
She  said  state  regulations require  the  following  to  ensure                                                               
ballot security in  transportation:  all hand  counted ballots at                                                               
the precincts must be sealed  and mailed to the director's office                                                               
no  later than  the day  following the  election, at  which point                                                               
they are  marked as received  and stored in an  alarm-secured and                                                               
locked ballot room.   She offered her understanding  that that is                                                               
in state  ballot regulation  6 AAC 25.060.   Ms.  Fenumiai stated                                                               
that  all  voted ballots  counted  by  optical scan  machines  on                                                               
election  night  are  transported  that  night  to  a  designated                                                               
location and  secured until  picked up by  a licensed  and bonded                                                               
courier service or licensed security  officer.  She said chain of                                                               
custody documents  accompany the ballot shipments;  access to the                                                               
ballots  prior  to shipment  is  limited  to election  personnel,                                                               
state troopers,  or authorized, licensed security  officers.  Ms.                                                               
Fenumiai  said  regulations  and  the  division's  practices  and                                                               
policies do not allow any  unauthorized person access to ballots.                                                               
She  relayed  that  during the  write-in  counting  process,  the                                                               
ballots were in  the director's office in  an alarm-secured room,                                                               
prior  to being  taken to  the counting  facility.   Before those                                                               
ballots  were removed,  they  were logged  and  itemized to  show                                                               
which ballots  were taken, transported  to the  counting facility                                                               
by  security officers,  and  rechecked upon  arrival.   The  same                                                               
thing happened when  the ballots were returned  to the director's                                                               
office.                                                                                                                         
                                                                                                                                
8:19:54 AM                                                                                                                    
                                                                                                                                
MS.  FENUMIAI,  in response  to  a  question from  Representative                                                               
Keller, restated who  the authorized personnel are.   She offered                                                               
further  details   about  the  transfer   of  ballots   from  one                                                               
authorized  person to  the  next.   In  response  to a  follow-up                                                               
question from  Representative Keller,  she confirmed that  she is                                                               
comfortable with the current process.   In response to a question                                                               
from Chair Lynn, she stated  that the transportation and security                                                               
topics she just relayed are covered in state regulation.                                                                        
                                                                                                                                
8:22:31 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE PETERSEN  said a constituent suggested  an idea to                                                               
him wherein  a voter could get  a receipt after voting  and could                                                               
track that receipt  to ensure that his/her vote was  counted.  He                                                               
asked Ms. Fenumiai if that idea would be possible.                                                                              
                                                                                                                                
MS. FENUMIAI  responded that there is  no way to identify  a vote                                                               
to a voter once it is  placed without compromising the privacy of                                                               
that person's vote.                                                                                                             
                                                                                                                                
8:23:35 AM                                                                                                                    
                                                                                                                                
MS. FENUMIAI  moved on to question  4 in the handout  - regarding                                                               
documentation  of all  ballots  printed -  and  said each  voting                                                               
location  is  provided with  a  series  of sequentially  numbered                                                               
ballots.  This information is  provided on documents given to the                                                               
voting  locations.   At the  end of  voting, the  election worker                                                               
identifies the  total number of  ballots used and  subtracts that                                                               
number from  the initial  number given.   The  remaining [unused]                                                               
ballots  are  destroyed  at  the  precinct  or  returned  to  the                                                               
division  for destruction,  she  said.   Voted  ballot stubs  are                                                               
returned to the  division.  She said this information  is also in                                                               
6  AAC 25.060.    In response  to  questions from  Representative                                                               
Keller, she  explained that in  most cases,  if there is  a small                                                               
quantity of unused  ballots, the election worker  at the precinct                                                               
rips  those ballots  in half  and returns  them to  the division.                                                               
When there are a large number  of unused ballots, they are put in                                                               
an envelope for  unused ballots and returned to  the division for                                                               
shredding.  She offered further  details related to the reporting                                                               
done by election workers.  She  said she has never experienced an                                                               
instance where an  election worker has been dishonest.   She said                                                               
there  is  a  team  of  four to  six  election  workers  at  each                                                               
precinct, and those workers have sworn an oath.                                                                                 
                                                                                                                                
8:27:25 AM                                                                                                                    
                                                                                                                                
MS.  FENUMIAI,  in  response  to Chair  Lynn,  related  that  the                                                               
election  officers in  the four  regional  offices recruit  their                                                               
workers.  She  said they try to get people  from the precincts in                                                               
which they will work.  The  workers have to be registered voters.                                                               
Ms. Fenumiai noted  that many of the  division's election workers                                                               
have been doing  this work for many years, and  she praised their                                                               
contribution to the division.                                                                                                   
                                                                                                                                
CHAIR LYNN expressed his appreciation of election workers.                                                                      
                                                                                                                                
8:28:24 AM                                                                                                                    
                                                                                                                                
MS. FENUMIAI,  in response to Representative  Petersen, explained                                                               
how "spoiled"  ballots are  tracked.  In  response to  the chair,                                                               
she  explained the  steps  a  voter would  take  in requesting  a                                                               
replacement  ballot;   she  said   each  voter  is   allowed  two                                                               
replacement ballots.                                                                                                            
                                                                                                                                
8:29:36 AM                                                                                                                    
                                                                                                                                
MS. FENUMIAI  directed attention to  question 5 on the  handout -                                                               
regarding  the  division's  choice  to  use  voter  intent,  thus                                                               
contradicting statute  - and noted  that the statute  in question                                                               
is AS 15.15.360(a) (10) through (12), which read as follows:                                                                    
                                                                                                                                
          (10) In order to vote for a write-in candidate,                                                                       
     the voter  must write  in the  candidate's name  in the                                                                    
     space  provided  and  fill in  the  oval  opposite  the                                                                    
     candidate's  name  in  accordance   with  (1)  of  this                                                                    
     subsection.                                                                                                                
        (11) A vote for a write-in candidate, other than                                                                        
     a write-in vote for governor and lieutenant governor,                                                                      
     shall  be counted  if the  oval is  filled in  for that                                                                    
     candidate and if the name,  as it appears on the write-                                                                    
     in declaration  of candidacy, of  the candidate  or the                                                                    
     last  name of  the candidate  is written  in the  space                                                                    
     provided.                                                                                                                  
          (12) If the write-in vote is for governor and                                                                         
     lieutenant governor,  the vote shall be  counted if the                                                                    
     oval is filled in and the  names, as they appear on the                                                                    
     write-in  declaration of  candidacy, of  the candidates                                                                    
     for governor and lieutenant governor  or the last names                                                                    
     of   the  candidates   for   governor  and   lieutenant                                                                    
     governor, or  the name, as  it appears on  the write-in                                                                    
     declaration   of  candidacy,   of  the   candidate  for                                                                    
     governor  or  the  last  name   of  the  candidate  for                                                                    
     governor is written in the space provided.                                                                                 
                                                                                                                                
MS. FENUMIAI  explained that "the Miller  group" interpreted that                                                               
statute to  mean that the  name written  in had to  match exactly                                                               
the name of  the candidate as it is written  on his/her letter of                                                               
intent, with no room for errors  or misspelling.  She stated that                                                               
the  division  disagrees  that   consideration  of  voter  intent                                                               
contradicts statute.  She said  in the recent Miller v. Treadwell                                                             
case, the  Alaska Supreme Court determined  that consideration of                                                               
voter  intent  was  consistent  with the  statute  on  rules  for                                                               
counting   ballots.     She  reiterated   that   the  court   has                                                               
historically and repeatedly admonished  the division to consider,                                                               
honor, and  implement voter  intent.  She  deferred to  Ms. Felix                                                               
for further comment.                                                                                                            
                                                                                                                                
8:32:36 AM                                                                                                                    
                                                                                                                                
MS.  FELIX  said in  the  Miller  v.  Treadwell case  the  Alaska                                                             
Supreme Court recognized  that the statute would  allow for minor                                                               
misspellings,  poor   handwriting,  and  any  variation   of  the                                                               
candidate's  name  that was  clear  enough  for the  director  to                                                               
determine using the standard of voter  intent.  The court did not                                                               
find that the candidate's name must  be written exactly as on the                                                               
declaration of candidacy.                                                                                                       
                                                                                                                                
8:34:28 AM                                                                                                                    
                                                                                                                                
MS. FENUMIAI  directed attention to  question 6 in the  handout -                                                               
regarding the chain of command  in determining voter intent - and                                                               
stated  that  the  division  would  go  through  the  process  of                                                               
counting individual  write-in ballots if the  aggregate number of                                                               
write-in  votes satisfies  the threshold  set out  in regulation.                                                               
She explained that that means  either the highest number of votes                                                               
received for  that race over  any other printed candidate  on the                                                               
ballot or the second highest with  a difference of less than half                                                               
a percent.  She said that is found  in 6 ACC 25.085.  In response                                                               
to  Chair  Lynn, she  confirmed  that  there have  been  write-in                                                               
candidates in the House race who  did not warrant a count because                                                               
the number of votes was well below the percentage difference.                                                                   
                                                                                                                                
8:36:45 AM                                                                                                                    
                                                                                                                                
MS.  FENUMIAI referred  to  a handout  in  the committee  packet,                                                               
entitled "Counting  Write-In Votes -  U.S. Senate Race,"  and she                                                               
said five boxes  were used for the initial  ballot sort following                                                               
the U.S. Senate race in 2010.   The first box, she said, was used                                                               
for ballots  on which the oval  was marked next to  a candidate's                                                               
name that was  printed on the ballot.  Those  ballots do not need                                                               
any further  review.  The second  box was used for  those ballots                                                               
left blank or those with more than one oval marked.                                                                             
                                                                                                                                
8:38:32 AM                                                                                                                    
                                                                                                                                
The committee took a brief at-ease.                                                                                             
                                                                                                                                
8:39:13 AM                                                                                                                    
                                                                                                                                
MS. FENUMIAI continued explaining the  five-box system.  She said                                                               
box 3 was  used for ballots where the oval  has been marked, Lisa                                                               
Murkowski's name  was spelled correctly,  and the ballot  was not                                                               
challenged.   Box 4, she  said, was  used for those  ballots that                                                               
were challenged by  one party or the other  because, for example,                                                               
the name  written appeared  to be a  variation or  misspelling of                                                               
the  write-in  candidate's  name  or the  name  was  not  written                                                               
directly on the  line.  Box 5 was for  those write-ins other than                                                               
Lisa Murkowski.   She said  she reviewed  the ballots in  boxes 2                                                               
and 4;  no other person was  involved in making the  voter intent                                                               
decisions.   She  said the  Alaska Supreme  Court validated  that                                                               
this was a good process in Miller v. Treadwell.                                                                               
                                                                                                                                
8:40:41 AM                                                                                                                    
                                                                                                                                
MS.  FELIX, in  response  to Representative  Gruenberg, said  she                                                               
would  give the  committee members  a copy  of the  citation from                                                               
Miller v. Treadwell.   In response to a series  of questions from                                                             
Representative  Gruenberg,  she said  the  court  did not  use  a                                                               
preponderance  of  the  evidence,  deference to  the  agency,  or                                                               
substitution  of judgment  standard  in proving  the  case.   She                                                               
explained  that what  was used  is the  voter standard,  which is                                                               
when  the Director  of the  Division  of Elections  looks at  the                                                               
ballot, views it  in totality, considers each part  of the ballot                                                               
as it  relates to  all other parts,  and makes  the determination                                                               
with the  underlying consideration of enfranchising  the voter if                                                               
possible.   She  indicated  that the  court  determined that  the                                                               
rules of the past were followed and would be upheld.                                                                            
                                                                                                                                
8:45:00 AM                                                                                                                    
                                                                                                                                
MS. FENUMIAI directed attention back  to the list of questions on                                                               
the  handout, to  question 7  - regarding  [nicknames] used  when                                                               
voting for a write-in candidate -  and said the ballot counter in                                                               
such  an  instance would  be  the  director  of the  Division  of                                                               
Elections.  She  said this question is  hypothetical, because the                                                               
decision  would depend  upon the  circumstances  of the  write-in                                                               
campaign and what  appears on the candidate's  write-in letter of                                                               
intent.    She  stated  that   the  entire  name  is  taken  into                                                               
consideration when determining voter  intent.  However, she said,                                                               
according to the Uniformed and  Overseas Citizens Absentee Voting                                                               
Act  (UOCAVA),  any  abbreviation, misspelling,  or  other  minor                                                               
variation in the  form of the name of a  candidate or a political                                                               
party  shall be  disregarded  in determining  the  validity of  a                                                               
ballot if  the intention  of the  voter can  be ascertained.   In                                                               
response to a question from  Representative Seaton, she confirmed                                                               
that a  last name only  would be  sufficient as a  write-in vote;                                                               
however, she said that would depend  on whether or not there were                                                               
one or more candidates with the same last name, for example.                                                                    
                                                                                                                                
8:48:33 AM                                                                                                                    
                                                                                                                                
MS. FELIX, in response to  question from Representative Petersen,                                                               
stated that  the court,  in Miller  v. Treadwell,  analogized the                                                             
write-in letter  declaration of intent  to the  statute regarding                                                               
candidates running under  a nickname; however, the  court did not                                                               
specify the issue  of a candidate using a single  name.  She said                                                               
this is a hypothetical question that  would have to be decided at                                                               
the time based upon all the circumstances.                                                                                      
                                                                                                                                
8:49:38 AM                                                                                                                    
                                                                                                                                
MS.  FELIX,  in  response  to   a  question  from  Representative                                                               
Gruenberg,  said that  with respect  to  counting write-ins,  the                                                               
aforementioned  U.S. Senate  race  was governed  mainly by  state                                                               
law, which incorporates federal law.                                                                                            
                                                                                                                                
8:52:45 AM                                                                                                                    
                                                                                                                                
MS.  FELIX,  in  response  to   a  question  from  Representative                                                               
Gruenberg regarding procedure development, stated the following:                                                                
                                                                                                                                
     The  Alaska Supreme  Court specifically  considered the                                                                    
     issue of whether  or not what the division  did in this                                                                    
     case required a regulation  to be promulgated under the                                                                    
     Administrative  Procedure Act,  and specifically  found                                                                    
     that  ... these  are  internal  agency procedures  that                                                                    
     were   a  common   sense  interpretation   of  existing                                                                    
     statutes   and  regulations   that   did  not   require                                                                    
     promulgation of a new regulation.                                                                                          
                                                                                                                                
8:54:12 AM                                                                                                                    
                                                                                                                                
MS.   FENUMIAI,  in   response   to  a   follow-up  remark   from                                                               
Representative Gruenberg,  said although it would  be possible to                                                               
put  into writing  the  procedure used  for  write-in voting,  it                                                               
would be  difficult to  put into writing  how to  determine voter                                                               
intent.                                                                                                                         
                                                                                                                                
8:55:30 AM                                                                                                                    
                                                                                                                                
MS. FELIX indicated that there  are current regulations resulting                                                               
from UOCAVA, and  the proposed SB 31 would codify  in statute the                                                               
UOCAVA  standard that  "any abbreviation,  misspelling, or  other                                                               
minor  variation in  the form  of the  name of  the candidate  or                                                               
political party shall be disregarded  in determining the validity                                                               
of  the write-in  ballot if  the intention  of the  voter can  be                                                               
ascertained."  That standard is set out in Miller v. Treadwell.                                                               
                                                                                                                                
CHAIR  LYNN stated  that to  determine procedure  you have  to be                                                               
able to define intent, and he questioned how that is possible.                                                                  
                                                                                                                                
MS. FENUMIAI  said it is  possible to determine that  someone who                                                               
spelled Murkowski with a "y" instead  of the "i" or a "c" instead                                                               
of the first "k" intended to vote for Lisa Murkowski.                                                                           
                                                                                                                                
MS. FELIX gave an example from  Edgmon v. Moses, an older case in                                                             
which the  issue was  that there  were a  number of  ballots with                                                               
funny marks  on them, but  the court was  able to figure  out the                                                               
intent of the voter.  She offered further details.                                                                              
                                                                                                                                
8:59:33 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  said it would  seem in Edgmon  v. Moses                                                             
that the  court looked  at the determination  of the  Division of                                                               
Elections, looked  at the  ballot, and  then made  an independent                                                               
determination.    He  said  in   that  sense  the  court  used  a                                                               
substitute standard and  did not give discretion  to the director                                                               
of the division.                                                                                                                
                                                                                                                                
MS. FELIX said  she thinks in that  case Representative Gruenberg                                                               
is  correct;  however,  she  pointed   out  that  the  Miller  v.                                                             
Treadwell case was different.                                                                                                 
                                                                                                                                
9:00:43 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KELLER thanked  the  chair  for bringing  forward                                                               
this overview.   He  opined that  voter confidence  is important.                                                               
He mentioned  the idea of having  a group of four  or five people                                                               
make the decisions  about ballots, rather than  just the director                                                               
of the  division.  He asked  Ms. Fenumiai if she  was comfortable                                                               
being the sole decision maker for the U.S. Senate Race in 2010.                                                                 
                                                                                                                                
9:02:26 AM                                                                                                                    
                                                                                                                                
MS.  FENUMIAI answered  yes.   She  said she  consulted with  the                                                               
Department of Law regarding the  ballot counting.  She stated her                                                               
belief that any  person in her position would take  the task very                                                               
seriously to  enfranchise every  voter's ballot  to ensure  it is                                                               
counted.   Regarding the idea  of having  a group in  charge, she                                                               
said she thinks  that would result in  many conflicting opinions.                                                               
She  stated  that  she  thinks  it  is  best,  for  the  sake  of                                                               
consistency,  for one  person to  be  in charge  of making  those                                                               
decisions.                                                                                                                      
                                                                                                                                
REPRESENTATIVE  KELLER  responded  that   each  human  being  has                                                               
his/her biases, and he has a  feeling of unease allowing just one                                                               
person to decide a person's intent.                                                                                             
                                                                                                                                
9:04:54 AM                                                                                                                    
                                                                                                                                
MS.  FELIX  explained that  the  process  of the  write-in  count                                                               
includes  observers  from every  campaign  involved  and all  the                                                               
political parties,  and those people  observe the  director while                                                               
he/she is  making decisions.   Ms. Felix  said the process  is an                                                               
open one and "if  there were any biases ... going  on it would be                                                               
patently obvious."                                                                                                              
                                                                                                                                
MS.  FENUMIAI, in  response to  Chair Lynn,  explained that  if a                                                               
decision she  made during a  write-in count was  challenged, then                                                               
that ballot  would go  into a  "challenged counted  envelope" and                                                               
would  be available  if the  court  needed to  see it  to make  a                                                               
determination.                                                                                                                  
                                                                                                                                
9:07:01 AM                                                                                                                    
                                                                                                                                
MS. FENUMIAI,  in response to Representative  Gruenberg, said the                                                               
court adjudication process is not  governed by the Administrative                                                               
Procedure Act.                                                                                                                  
                                                                                                                                
9:10:14 AM                                                                                                                    
                                                                                                                                
MS. FENUMIAI  directed attention  to question  8 -  regarding the                                                               
use of a single  name in a write-in vote -  and stated that under                                                               
statute,  at minimum  the  last  name of  the  candidate must  be                                                               
provided.  She reviewed that if,  for example, there was only one                                                               
Johnson running as a write-in,  then writing only "Johnson" would                                                               
suffice.   She moved on to  question 9 - regarding  how closely a                                                               
name must match  the write-in declaration of  candidacy to signal                                                               
voter intent  - and said  this, too, is a  hypothetical question.                                                               
Notwithstanding that,  she said that  if there was,  for example,                                                               
one write-in candidate named John  Johnson, the write-in vote for                                                               
J. Johnson would count if there  were no other candidates in that                                                               
race with that last name and  first initial.  She reiterated that                                                               
the last name of the candidate must be provided, at minimum.                                                                    
                                                                                                                                
MS.  FENUMIAI  directed  attention  to question  10  -  regarding                                                               
adopting  resolutions  to  show   concurrence  with  the  court's                                                               
interpretation of  existing statute rather than  amending statute                                                               
-  and stated  that the  division views  conforming statute  to a                                                               
court decision as  a housekeeping measure.   Further, she offered                                                               
her understanding  that a resolution  would not be  sufficient to                                                               
amend a statute.  In  response to Representative Seaton, she said                                                               
the legislature  can conform  statute to  a court's  decision, to                                                               
ensure  clarity   in  future  court   cases.    In   response  to                                                               
Representative Gruenberg,  she concurred  that an  intent section                                                               
can be added to such legislation.                                                                                               
                                                                                                                                
9:16:51 AM                                                                                                                    
                                                                                                                                
MS. FENUMIAI turned to question  11 - regarding comparisons - and                                                               
stated that there have been  no other write-in races that compare                                                               
to the  one that occurred  in November 2010.   She noted  that in                                                               
1998, Robin Taylor  ran as a write-in for  governor, but received                                                               
about 40,000 votes.   She stated her understanding  that in 1954,                                                               
Senator Strom Thurman of South  Carolina was elected senator as a                                                               
write-in candidate.  She said she  has not had the opportunity to                                                               
research write-in  candidates in  other states.   In  response to                                                               
Representative  Gruenberg,  she  said   she  has  not  researched                                                               
whether or  not there  were any  legal challenges  resulting from                                                               
Senator Thurman's election.                                                                                                     
                                                                                                                                
MS.  FELIX offered  her understanding  that  no information  from                                                               
South Carolina's case was in the brief.                                                                                         
                                                                                                                                
MS. FENUMIAI,  in response to Representative  Seaton, recollected                                                               
that there was  at one time a write-in candidate  running for the                                                               
school  board who  won the  race;  however, she  said she  cannot                                                               
remember the year.                                                                                                              
                                                                                                                                
9:19:51 AM                                                                                                                    
                                                                                                                                
MS.  FENUMIAI  moved  on  to  question 12,  which  puts  forth  a                                                               
hypothetical situation  where Joe Jones  and Joan Jones  are both                                                               
write-in candidates and  a write-in vote is  either misspelled or                                                               
incomplete.    She  said  the  division  would  expect  that  the                                                               
campaigns  would work  to get  the word  out on  how to  properly                                                               
write  the candidate's  name.    She said  in  this example,  the                                                               
write-in vote would not be  counted, and the courts may challenge                                                               
that.   She stated her  assumption that  if the vote  in question                                                               
was  needed   to  determine  the   winner  of  a  race,   then  a                                                               
proportionate redistribution  of the  votes would  be done.   Ms.                                                               
Fenumiai directed attention to question  13 - regarding a list of                                                               
write-in  candidates   being  posted  in  voting   booths  -  and                                                               
emphasized that  the division never  intended for the list  to be                                                               
posted in  voting booths; the  list was  to be made  available to                                                               
voters who requested it.  She  relayed that there was an incident                                                               
in Homer  where a list  was posted, but  as soon as  the division                                                               
found out, it  had the list pulled, and the  17 ballots that were                                                               
used during  the time the  list was  posted were pulled  aside in                                                               
case they  were challenged  at a  future date,  but there  was no                                                               
challenge to those ballots.                                                                                                     
                                                                                                                                
9:22:51 AM                                                                                                                    
                                                                                                                                
MS. FELIX, in  response to a question  from Representative Seaton                                                               
regarding the rationale  in not putting up the  list, stated that                                                               
this  is  a matter  over  which  there  was litigation,  and  the                                                               
division developed a  policy that it felt was fair  in having the                                                               
list if a voter asked for it.   She said the Alaska Supreme Court                                                               
ultimately  upheld the  division's decision.   In  response to  a                                                               
follow-up  question, she  said challengers  of  the list  claimed                                                               
that [putting the  list up in the voting booth]  would have given                                                               
the  write-in voters  an unfair  advantage  and influenced  their                                                               
decision.                                                                                                                       
                                                                                                                                
9:26:01 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON  explained that he is  questioning the fact                                                               
that  not  all candidates'  names  are  handed  to a  voter  when                                                               
requested - just the names of write-in candidates.                                                                              
                                                                                                                                
9:26:32 AM                                                                                                                    
                                                                                                                                
MS. FENUMIAI  directed attention to  question 14 -  regarding the                                                               
voter registration database - and  said the list is available for                                                               
purchase  by the  public in  hard copy  and electronically.   She                                                               
said the  public list  contains each  registered voter's  name in                                                               
ascension number,  residence address, mailing  address, district,                                                               
precinct,  party affiliation,  sex, and  10-year voting  history.                                                               
She said  there are a variety  of methods by which  to search for                                                               
data.   In  response  to Representative  Petersen,  she said  the                                                               
division does not  have the ability to pull  up all registrations                                                               
done  by  a  specific  registrar,  but  can  look  at  a  voter's                                                               
registration  document to  ascertain  who signed  the  form as  a                                                               
registrar.                                                                                                                      
                                                                                                                                
9:29:53 AM                                                                                                                    
                                                                                                                                
MS.  FENUMIAI,  referring  to  questions 15  and  16  -  database                                                               
searches  and citizenship  verification -  explained that  when a                                                               
voter  completes  the   voter  registration  application,  he/she                                                               
swears under penalty  of perjury that he/she is a  citizen of the                                                               
U.S.  In response to a question  from Chair Lynn, she said if the                                                               
division was  to find out  that a  person who registered  to vote                                                               
was  not a  U.S.  citizen, it  would take  steps  to remove  that                                                               
person  from the  rolls.   In response  to further  comments from                                                               
Representative  Petersen,  she said  the  division  hopes that  a                                                               
registrar  would  not  check  the  citizenship  box  for  someone                                                               
without getting  confirmation from  the person  that he/she  is a                                                               
citizen  of  the U.S.    She  said  there are  no  documentations                                                               
required to be  shown to the registrar.   She told Representative                                                               
Petersen  that if  he  wants specific  people  checked, then  the                                                               
division  would  look  those  people  up  on  the  aforementioned                                                               
microfilmed information.   She said she  is not sure how  far the                                                               
division's part would go in that regard.                                                                                        
                                                                                                                                
9:37:24 AM                                                                                                                    
                                                                                                                                
MS.  FENUMIAI,  in response  to  Representative  P. Wilson,  said                                                               
prior to  every election, the  division sends out  public service                                                               
announcements  to  remind  people   about  updating  their  voter                                                               
registration information.                                                                                                       
                                                                                                                                
REPRESENTATIVE P. WILSON suggested that  it would be good to work                                                               
on this issue when it is not an election year.                                                                                  
                                                                                                                                
MS. FENUMIAI said she would take that into consideration.                                                                       
                                                                                                                                
9:38:37 AM                                                                                                                    
                                                                                                                                
MS. FENUMIAI,  in response to  Chair Lynn, confirmed  that voters                                                               
have the right  to keep their residence  address confidential, as                                                               
long as  they are able to  provide the division with  a different                                                               
mailing  address.   In  response  to  a follow-up  question,  she                                                               
stated  her  assumption that  people  who  have been  victims  of                                                               
domestic  violence and  police officers  may not  want others  to                                                               
know where they live.                                                                                                           
                                                                                                                                
9:42:30 AM                                                                                                                    
                                                                                                                                
MS. FELIX  noted that AS 15.07.195  gives the right to  keep ones                                                               
residential address confidential.   In response to Representative                                                               
Seaton,  she  said  currently  there  is  no  authority  for  the                                                               
division to  treat a candidate  differently from any  other voter                                                               
in  regard to  having the  right  to make  a residential  address                                                               
confidential.                                                                                                                   
                                                                                                                                
9:44:15 AM                                                                                                                    
                                                                                                                                
MS. FELIX, in response to  Representative Seaton, stated that the                                                               
subject of  a voter's residential  address was not an  issue that                                                               
arose during Edgmon v. Moses.                                                                                                 
                                                                                                                                
9:47:13 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG   directed  attention  to   a  one-page                                                               
memorandum [included  in the  committee packet]  from Legislative                                                               
Legal  and Research  Services, dated  2/2/11, which  addresses AS                                                               
15/15/361.                                                                                                                      
                                                                                                                                
9:47:33 AM                                                                                                                    
                                                                                                                                
MS. FENUMIAI  said AS 15.15.161  is a statute that  disallows the                                                               
use of  stickers on ballots.   She said that statute  was enacted                                                               
when  the state  converted  from punch  card  voting machines  to                                                               
optical scan  voting machines.   She explained that  the stickers                                                               
have  the potential  to  damage the  optical  scan machines;  the                                                               
stickers  could  peel  off  and  render  the  optical  scan  unit                                                               
dysfunctional.  She said the  division believes that that statute                                                               
should remain in place.                                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG  talked about finding  a way to  use the                                                               
stickers during write-in voting to  help those who are not fluent                                                               
in the English language.                                                                                                        
                                                                                                                                
9:49:27 AM                                                                                                                    
                                                                                                                                
MS. FENUMIAI  said the division  could talk  to the maker  of the                                                               
optical  scan machine  to  see if  this is  possible.   She  then                                                               
addressed questions  that she  said Representative  Gruenberg had                                                               
submitted to her.  First, she  said there were no issues with the                                                               
observers during  the write-in ballot  counting process  from the                                                               
November 2010  election.  Second,  she relayed that  the write-in                                                               
counting process  was completed on  November 17, the  U.S. Senate                                                               
race was certified  by her on December 28, and  the term began on                                                               
January 3, 2011;  however, the race could not  be certified until                                                               
the court lifted the federal  injunction.  Finally, she said that                                                               
for the [write-in counting],  the division incurred approximately                                                               
$50,000,  which   covered  election  worker   payments,  facility                                                               
rentals,  security, and  staff  time.   She  said  that does  not                                                               
include the legal  costs for the Miller v.  Treadwell case, which                                                             
the Department  of Law has  estimated will come  to approximately                                                               
$150,000.                                                                                                                       
                                                                                                                                
9:52:19 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON  asked  Ms.   Fenumiai  to  consider  what                                                               
language may  be needed  to prevent the  possibility that  two of                                                               
the same names are submitted as write-in candidates.                                                                            
                                                                                                                                
9:53:42 AM                                                                                                                    
                                                                                                                                
MS.  FENUMIAI  said she  would  address  that issue  and  provide                                                               
Representative Seaton with further information.                                                                                 
                                                                                                                                
9:54:12 AM                                                                                                                    
                                                                                                                                
CHAIR LYNN  thanked Ms.  Fenumiai for her  work on  elections and                                                               
for  the overview.    He  invited committee  members  to let  Ms.                                                               
Fenumiai know what information they  would like from the division                                                               
in the future.                                                                                                                  
                                                                                                                                
9:54:43 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE JOHANSEN  asked Ms.  Fenumiai to consider  the use                                                               
of "heat stamps,"  such as the copy and draft  stamps used by the                                                               
legislature.                                                                                                                    
                                                                                                                                
9:55:24 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON said  he would  like a  report on  how the                                                               
hand count  of 5  percent of each  House district  has functioned                                                               
and whether there  have been any cases in which  the hand tallies                                                               
and the machine  counts have not corresponded.  He  said he would                                                               
also  like  to  know  how  the  requirement  for  candidate  name                                                               
rotation has  been working.  Last,  he said he would  like to see                                                               
an analysis of the mail-in ballot,  such as is used in Oregon, to                                                               
figure out if it would work in Alaska.                                                                                          
                                                                                                                                
9:56:37 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE PETERSEN mentioned a  situation where a radio talk                                                               
show  host solicited  people  with  names similar  to  that of  a                                                               
write-in  candidate already  running  for office  to  sign up  as                                                               
write-in candidates  "at the last  minute."  He opined  that that                                                               
situation caused  complications related  to the election,  and he                                                               
asked if  legislation is  needed to  prevent something  like that                                                               
from happening in the future.                                                                                                   
                                                                                                                                
CHAIR  LYNN  recommended  considering the  First  Amendment  when                                                               
looking into that issue.                                                                                                        
                                                                                                                                
9:57:37 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KELLER thanked  the  many  election workers,  and                                                               
remarked  on the  privilege  of voting  in the  U.S.   He  stated                                                               
support for local oversight.                                                                                                    
                                                                                                                                
CHAIR LYNN  remarked upon the  current troubles in Egypt,  and he                                                               
said  although debate  can be  heated, the  U.S. has  "a peaceful                                                               
transition of government."                                                                                                      
                                                                                                                                
9:59:40 AM                                                                                                                    
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no  further business before the  committee, the House                                                               
State Affairs  Standing Committee meeting was  adjourned at 10:00                                                               
a.m.                                                                                                                            

Document Name Date/Time Subjects
01 HSTA Committee Packet 2-3-2011.pdf HSTA 2/3/2011 8:00:00 AM
02 Counting Write-In Instructions 2010 FINAL 11-8-10.pdf HSTA 2/3/2011 8:00:00 AM
03 Additional questions REP GRUENBERG.pdf HSTA 2/3/2011 8:00:00 AM