Legislature(2021 - 2022)BUTROVICH 205
01/18/2022 03:30 PM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| Election/ballot Security Protocols | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
SENATE STATE AFFAIRS STANDING COMMITTEE
January 18, 2022
3:38 p.m.
MEMBERS PRESENT
Senator Mike Shower, Chair
Senator Lora Reinbold, Vice Chair
Senator Mia Costello
Senator Roger Holland
MEMBERS ABSENT
Senator Scott Kawasaki
COMMITTEE CALENDAR
ELECTION/BALLOT SECURITY PROTOCOLS
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
GAIL FENUMIAI, Director
Division of Elections
Office of the Lieutenant Governor
Juneau, Alaska
POSITION STATEMENT: Answered questions during the hearing on
election security.
THOMAS FLYNN, Assistant Attorney General
Civil Division
Labor and State Affairs Section
Department of Law (DOL)
Juneau, Alaska
POSITION STATEMENT: Provided information and responded to
questions during the hearing on election security.
HANS VON SPAKOVSKY
Senior Legal Fellow
The Heritage Foundation
Washington, D.C.
POSITION STATEMENT: Participated by invitation and responded to
questions during the hearing on election security.
J. CHRISTIAN ADAMS
President and General Counsel
Public Interest Legal Foundation
Indianapolis, Indiana
POSITION STATEMENT: Invited to testify during the hearing on
election integrity.
SCOTT OGAN, Staff
Senator Mike Shower
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Provided commentary during the hearing on
election integrity.
ALAN BIRNBAUM, Chief Assistant Attorney General
Civil Division
Information and Project Section
Department of Law
Juneau, Alaska
POSITION STATEMENT: Responded to questions during the hearing on
election security.
ACTION NARRATIVE
3:38:34 PM
CHAIR MIKE SHOWER called the Senate State Affairs Standing
Committee meeting to order at 3:38 p.m. Present at the call to
order were Senators Holland, Reinbold, Costello, and Chair
Shower.
^Election/Ballot Security Protocols
Election/Ballot Security Protocols
3:39:22 PM
CHAIR SHOWER announced the committee would go over questions on
[The Heritage Foundation] Election Integrity Scorecard for
Alaska with Gail Fenumiai, the Director of the Division of
Elections. He said Ms. Fenumiai will also provide information
about the election system and the process going forward with the
new ranked choice voting system and respond to questions the
committee has had in the past.
CHAIR SHOWER recognized the subject matter experts J. Christian
Adams and Hans von Spakovsky who were online and available to
provide information as needed.
3:40:50 PM
GAIL FENUMIAI, Director, Division of Elections, Office of the
Lieutenant Governor, Juneau, Alaska introduced herself and
relayed that she was prepared to respond to questions the
committee may have.
CHAIR SHOWER stated that he has worked on multiple election
bills since 2018 and what he has seen since 2016 is that people
on both sides of the aisle are unhappy with election security
and integrity. He emphasized that his work on this topic has
never been political. Rather, it is about doing what needs to be
done so voters trust the system and results.
He cited the following data from an unnamed source:
• Democrats prefer mail-in voting on an 8:10 basis.
• Republicans prefer in person voting on a 7:10 basis.
CHAIR SHOWER posited that implementing a system that favors one
party over another disenfranchises an entire sector of the
electorate, which is why he believes this is a fair discussion
to have. He noted the recent data breaches and emphasized that
improvements could be made to make the job easier for the
Division of Elections. This includes statutory changes,
providing the division with additional resources, and ensuring
that any changes increase confidence in the results.
He asked Ms. Fenumiai if she had an opening statement.
3:44:56 PM
MS. FENUMIAI answered no, but she was prepared to talk about
what has happened since the 2020 election, election security,
ballot protocols, and ranked choice voting, also known as Ballot
Measure 2.
3:45:23 PM
CHAIR SHOWER stated that the committee has struggled to get
information from the Lieutenant Governor's Office. For example,
it took more than a year for the committee to get a copy of the
election report that former Commissioner Tshibaka generated for
release to the public. When it was released, the administration
had redacted half of it. He expressed frustration and asked if
there is guidance from the report that she could discuss that
will help the committee do its job.
MS. FENUMIAI replied she had only seen a draft of the report,
and the division's only involvement was to provide factual
information to Mr. Ruby, the assigned investigator who assembled
the report.
3:48:00 PM
CHAIR SHOWER offered that former Commissioner Tshibaka briefed
the administration on the report on July 13, 2020. Based on a
conversation before she left the administration, his
understanding was that the draft report was intended to be
released to the public. He added that he knows that the final
report has been released but he has not received a copy. He
expressed frustration that as a sitting Senator who is trying to
work on the election system, he is unable to get the data.
MS. FENUMIAI clarified that the division had nothing to do with
redactions in the report. She suggested that he direct his
questions about redactions to the representatives from the
Department of Law who were online.
CHAIR SHOWER said he would hold those questions until later in
the meeting. Now he would go through the [Election Integrity
Scorecard for Alaska that was prepared by The Heritage
Foundation.] He told Ms. Fenumiai that he would welcome her
input as he reads the questions and answers on the scorecard.
3:50:29 PM
SENATOR COSTELLO asked him to tell the public who provided the
scorecard and how Alaska ranked.
CHAIR SHOWER explained that The Heritage Foundation produced the
scorecard and two representatives from the foundation were
available to provide information and explanations. He reiterated
that Ms. Fenumiai was available to answer some questions and
provide information about what the Division of Elections is
doing currently.
He read the following question and answer from the scorecard:
[Original punctuation provided.]
Q: The state requires a photo ID or a unique
identifier, such as a driver's license serial number
or last four digits of SSN (SSN4), for absentee
voting?
A: Yes
3:52:21 PM
CHAIR SHOWER asked Ms. Fenumiai what the state has done since
the last election to ensure that Alaskans' personal identifying
information that has been compromised cannot be used to obtain
ballots in future elections.
He noted the discussions last year about how the stolen data
could be used to receive an absentee or by mail ballot. He asked
how these applications will be crosschecked for the 2022
election and if the division is relying on the same identifiers.
MS. FENUMIAI explained that a person who applies for an absentee
ballot must provide their name, residence address or permanent
mailing address, date of birth, and an identifier such as the
last four digits of their Social Security Number (SSN), their
voter ID number, or Alaska driver's license number. They must
also provide a ballot mailing address and sign the application.
Before a voter is sent a ballot, that information is vetted and
compared to what is in the state voter registration system. She
said division staff pays close attention to applications and has
caught some suspicious activity. In those instances the division
notifies the Department of Law (DOL).
CHAIR SHOWER asked how many applications have been referred to
DOL.
MS. FENUMIAI replied she did not have the number in her head.
She added this was after the 2020 election and had nothing to do
with the data exposure he mentioned.
CHAIR SHOWER asked her to follow up with the exact number of
application that were referred to DOL.
He noted that applicants must sign the application for an
absentee or by mail ballot, but the state does not have a
signature validation system. He asked if she agreed.
MS. FENUMIAI confirmed that was correct.
CHAIR SHOWER asked what good it serves to check signatures if
they are not subject to a forensic check.
3:54:57 PM
MS. FENUMIAI responded that election staff compares signatures
on absentee and by mail ballot applications to the voter
signatures in the registration database if there appears to be
suspicious activity. She added that staff at the absentee office
has multiple years of experience and has brought suspicious
activity to DOL's attention. She cited an example from 2015 or
2016.
3:55:45 PM
CHAIR SHOWER asked what percentage [of signatures on
applications] the division looks at and clears relying on
intuition as opposed to a forensic check.
MS. FENUMIAI replied she did not have a percentage. The
signatures are checked if the application is deemed suspicious.
CHAIR SHOWER expressed concern that the current system relies on
human beings and intuition to crosscheck signatures of what
could be hundreds of thousands of voters. He commented that
there does not seem to be a way to significantly crosscheck the
entire election process.
MS. FENUMIAI replied that is correct for signatures.
3:57:26 PM
CHAIR SHOWER moved down the scorecard and read the following
question and answer from the scorecard:
[Original punctuation provided.]
Q: State election officials run data comparisons
between the statewide voter registration list and
state welfare and public assistance agencies to find
information relevant to registration such as address
changes, deaths, citizenship status, or other factors
affecting eligibility?
A: No
CHAIR SHOWER asked why the state does not use those databases as
a crosscheck.
MS. FENUMIAI replied the division does not have the statutory
authority to use those lists.
CHAIR SHOWER asked if she recalled the committee discussion last
year about additional databases that the division does not have
the statutory authority to use.
MS. FENUMIAI confirmed that the division does not have statutory
authority to use the United States Postal Service (USPS)
National Change of Address (NCOA) information for list
maintenance. She explained that the National Voter Registration
Act (NVRA) prohibits states from removing names from the voter
rolls for not voting in two or more general elections. The
Division of Elections adheres to this law and only removes names
from the voter rolls at the voter's direction.
CHAIR SHOWER said it leads to the question of why there isn't
more checking and that comes down to the fact that the division
needs sufficient funding and statutory guidance to clean up the
voter rolls.
3:59:45 PM
CHAIR SHOWER read the following questions and answers from the
scorecard:
[Original punctuation provided.]
Q: Election officials verify the residence address on
all new voter registration forms by comparing it to
county tax records or another residential address
database to ensure that the address is not actually a
commercial or industrial address, or a vacant or
undeveloped lot in a residential area?
A: Yes
Q: If the answer to the previous question is "yes,"
election officials check to see how many individuals
are registered at that address in order to find any
anomalies, such as a large number of individuals
registered at a single-family home?
A: No
CHAIR SHOWER asked why the division does not check to see how
many people use the same address when they register to vote.
MS. FENUMIAI replied the division does not have statutory
authority to run that check but all voters sign their voter
registration application attesting under penalty of perjury that
the information provided is true and correct.
CHAIR SHOWER commented that that too needs work.
4:01:27 PM
CHAIR SHOWER read the following question and answer from the
scorecard:
[Original punctuation provided.]
Q: Election officials investigate the registrations of
individuals registered at the same address with only
slight discrepancies in their names?
A: No
4:01:34 PM
CHAIR SHOWER asked if the answer is "no" due to the lack of
statutory authority or guidance.
MS. FENUMIAI replied that is correct.
CHAIR SHOWER read the following question and answer from the
scorecard:
[Original punctuation provided.]
Q: State election officials provide an annual report
to their state legislatures on their voter
registration maintenance procedures?
A: No
He asked if she agreed the answer is "no."
MS. FENUMIAI replied that is correct and that information is
available.
CHAIR SHOWER read the following question and answer from the
scorecard and asked her to confirm the answer is no:
Q: State election officials use the U.S. Postal
Service's National Change of Address (NCOA) system to
find voters who have moved from their registered
address?
A: No
4:02:20 PM
MS. FENUMIAI replied the division receives change of address
information from USPS and has started to notify voters and ask
if they want to update or cancel their voter registration. She
reiterated that the division does not make any changes without
direction from the voter.
4:02:52 PM
CHAIR SHOWER asked if that was a policy decision or driven by
statute.
MS. FENUMIAI replied it was a policy decision that the division
management team made late last year.
CHAIR SHOWER expressed concern about the flexibility
administrations have to make policy decisions, which change with
the political wind. He opined that the legislature should
provide the division with statutory guidance that is as tight as
possible so changes are not made without legislative oversight.
4:04:05 PM
MS. FENUMIAI responded that the Division of Elections employees
are nonpartisan and they carry out elections according to state
laws and regulations. She noted that the policy decision she
mentioned was an internal decision to improve the accuracy of
the voter rolls, which she views as positive.
CHAIR SHOWER restated his concern about the flexibility
administrations have to make policy decisions as opposed to
relying on tight statutory guidance.
4:05:03 PM
CHAIR SHOWER skipped down the list and read the following
question and answer from the scorecard:
[Original punctuation provided.]
Q: If the state uses electronic poll books in polling
places, the registration list include photographs of
the registered voter?
A: No
He asked why the state uses printed poll books as opposed to
electronic.
MS. FENUMIAI answered that electronic poll books are not
provided for in state statute. Furthermore, she said
implementing electronic poll books would be very expensive for
the division and may not work statewide because of poor internet
coverage in rural areas.
CHAIR SHOWER said he had a note that says that states do not
need the authority to use NCOA. He asked if she agreed.
MS. FENUMIAI offered her understanding that the use of NCOA is
allowed under the National Voter Registration Act to conduct
list maintenance, but it is not in the state's list maintenance
law. There is a fee for use and she understands that the
Electronic Registration Information Center (ERIC) uses NCOA to
provide the division with the best last-known address.
CHAIR SHOWER asked the Department of Law to comment.
4:07:04 PM
THOMAS FLYNN, Assistant Attorney General, Civil Division, Labor
and State Affairs Section, Department of Law (DOL), Juneau,
Alaska, agreed with Ms. Fenumiai that change of address is
mentioned in the federal NVRA but not state law. He added that
information comes to the Division of Elections a few ways
including ERIC and by way of notices the division is sending to
voters who have moved. He acknowledged that state law could be
more explicit, although the information is coming in.
CHAIR SHOWER asked what it is worth to make sure an election is
so tight that the citizens trust the outcome. He said the
committee will continue to look at the available options, the
cost, and whether they make sense.
4:08:46 PM
SENATOR REINBOLD asked Mr. Flynn and Ms. Fenumiai if they
believe the division needs statutory authority to use the
database. She also asked for the access fee for the databases.
MR. FLYNN said it would take further discussion to determine
whether or not state law is necessary and he does not know the
cost to use the USPS database.
MS. FENUMIAI said voters who do not respond when the division
reaches out will never be targeted for the list maintenance
process that is provided in state law.
SENATOR REINBOLD restated her question asking if she believes
the division needs statutory direction to use key databases and
if she knows the cost.
4:10:29 PM
MS. FENUMIAI answered that she did not know the cost to use the
National Change of Address (NCOA) database. Further, she did not
have an opinion about the need for statutory guidance to use the
database but she views it as beneficial to remove even one
person from the list if they should not be there.
SENATOR REINBOLD emphasized the need for the division to give
the legislature more definitive answers.
CHAIR SHOWER asked the division or DOL to provide information
about what the state currently spends on ERIC. He emphasized
that if the state is already using the information it probably
should be in statute. He said, "What I don't want is an answer
that is, 'Well yeah, it's not authorized but we're doing it
anyways.' or we made a policy decision."
4:13:19 PM
MR. FLYNN agreed to follow up with information about the extent
to which ERIC uses the NCOA database, the cost of getting that
information on its own, and the extent to which the division's
efforts to reach out to people who receive the yellow stickies
doesn't already cover that information.
CHAIR SHOWER confirmed that he wanted the answer about how much
the state is paying ERIC because it helps inform legislative
decisions.
MS. FENUMIAI said she could provide a copy of the data since the
state started participating in ERIC. In response to a subsequent
question, she said it includes membership fees, the cost to
print and mail notices to voters, and the return rates for the
various mailings the division does.
4:14:17 PM
SENATOR COSTELLO informed the public that Alaska ranks 25th on
The Heritage Foundation state scorecard. She opined that the
legislature should look at every area that the state ranked low
and ask whether the statute should be changed in order to
improve the score and thus the integrity of elections.
CHAIR SHOWER agreed. He acknowledged that he was only reading
the questions that he deemed particularly important.
4:16:43 PM
CHAIR SHOWER read the following question and answer from the
scorecard:
[Original punctuation provided.]
Q: The absentee ballot needs to be notarized or
witnessed (with identifying information such as name,
address, telephone number, and signature)?
A: Yes
CHAIR SHOWER commented that the state does this but some things
could be done better. He cited the example in 2020 of a judge
striking the requirement to have a witness signature on absentee
ballots. "One judge writing election law is probably not the way
our founders envisioned the state was supposed to run." He
mentioned the data breach and asked if the identifiers have been
changed so the information floating on the dark web cannot be
used in the next election.
MS. FENUMIAI answered no, the division has not changed the
identifiers.
4:18:25 PM
CHAIR SHOWER read the following question and answer from the
scorecard:
[Original punctuation provided.]
Q: There is a limit on number of absentee ballots one
individual can witness?
A: No
CHAIR SHOWER asked if she agreed with the answer.
MS. FENUMIAI replied that is correct.
4:18:45 PM
CHAIR SHOWER read the following questions and answers:
[Original punctuation provided.]
Q: The state has a signature comparison requirement?
A: No
He acknowledged that topic was discussed previously.
Q: The state requires a signed voter request for an
absentee ballot?
A: Yes
CHAIR SHOWER highlighted this is an area of concern because
absentee ballots can be requested electronically. He asked how
to stop somebody from using identifying data from multiple
people to request multiple absentee ballots.
4:19:55 PM
MS. FENUMIAI returned to his comment on the 2020 election and
stated that the division saw no malicious activity with absentee
voting either by mail, in person, early, online, or by FAX. She
noted that the division previously provided information about
the number of voters involved in the data exposure, as well as
the comparison of the number of people who voted in person,
early, and by mail. The division found no instances of fraud.
In response to the Chair's question, she explained that the
online ballot system has been on the books since the '90s for
FAX voting. After that ballots moved toward an electronic
version. Rather than going into detail, she asked if it would be
acceptable to provide a written explanation of the checks and
balances in place for this system.
CHAIR SHOWER agreed. He added that he does not know how she can
express confidence that there was no malicious activity in the
last election when 113,000 Alaskans were involved in the data
breach and there was no forensic check to ensure that their
information was not used maliciously to request ballots.
4:23:15 PM
MS. FENUMIAI explained that of the people whose data was
exposed, the division identified those who had to provide
identification to receive a ballot because they voted at the
polls, absentee in-person, and early. This left a smaller subset
of people who voted by mail, online, or by FAX. She said that if
the information was readily available, she would provide how
many of this subset voted and how many had a current voter
history.
CHAIR SHOWER said he would like all that information because he
believes the system needs to be much tighter than it is
currently.
CHAIR SHOWER asked Mr. von Spakovsky to comment on the foregoing
and provide his testimony.
4:25:25 PM
HANS VON SPAKOVSKY, Senior Legal Fellow, The Heritage
Foundation, Washington, D.C., issued the proviso that when
analysists from The Heritage Foundation testify they are
providing their own opinions.
He explained that the Election Integrity Scorecard is based on
12 broad criteria with 47 standards within each. Some items need
legislative authority but election officials can do others on
their own. The questions were developed as best practices to
maintain the accuracy of the voter rolls and protect voters. For
example, it is important to compare the voter registry against
not only DMV records but also state vital records and state
public assistance records to pick up those individuals who do
not have a driver's license. This protects voters and the
accuracy of the voter registry.
MR. VON SPAKOVSKY said the scorecard has been misinterpreted as
an analysis of the 2020 election, but it is actually an analysis
of the laws and procedures of all the states as of December
2021. The list will be updated and individual state scores will
improve as these best practices are adopted.
4:29:20 PM
SENATOR REINBOLD said she was pleased with the precise
reporting.
CHAIR SHOWER asked if he had any thoughts on the discussion
about the data breach and that the state is not currently doing
anything to prevent the voter identifiers floating around on the
dark web from being used maliciously.
MR. VON SPAKOVSKY said he believes a basic security step would
be to put an asterisk next to the name of every voter whose
information was stolen and do a signature comparison on each one
when a request is made for an absentee ballot.
SENATOR REINBOLD offered her belief that that should be in the
law. She added that she would like to know who did the hack, who
has the data, and what's been done to prevent it from happening
in the future.
MR. VON SPAKOVSKY said he had not seen any reports from Alaska
that indicate who the hackers were, but a New York criminal
indictment of Iranian hackers said that the information of more
than 100,000 voters was stolen from an unidentified state. His
assumption is that Alaska is the unidentified state.
CHAIR SHOWER asked Ms. Fenumiai to provide any information she
may have and is authorized to release about the identity of the
hackers.
MS. FENUMIAI nodded.
4:34:16 PM
CHAIR SHOWER acknowledged that the next questions were discussed
in committee last year. He read the following question and
answer from the scorecard:
[Original punctuation provided.]
Q: The state requires the receipt of all ballots by
the close of polls on election day? (with the
exception of overseas military ballots)
A: No
CHAIR SHOWER asked why the state does not have this requirement.
MS. FENUMIAI replied state law allows ballots to be received up
to 10 days after the election for Primary Elections and 15 days
for international mailings in General Elections. They must be
postmarked on or before Election Day.
CHAIR SHOWER read the following question and answer from the
scorecard:
[Original punctuation provided.]
Q: The state does not use unattended, unsecure drop
boxes?
A: No
He asked for an explanation of the state's drop box policy.
MS. FENUMIAI said there is no defined policy to use drop boxes.
The decision to use them was made during the COVID-19 pandemic
in 2020.
CHAIR SHOWER observed that it was a policy decision. He read the
following question and answer from the scorecard:
[Original punctuation provided.]
Q: The state has procedures to investigate the
validity of a registration when an absentee ballot is
returned as undeliverable by the post office?
A: No
He asked why the state doesn't have such procedures.
MS. FENUMIAI replied there is nothing in statute, but when a
ballot is returned as undeliverable the division looks at the
information a voter provided on their absentee by mail
application to determine whether there was a data entry error.
If there was an error, the division corrects it and resends the
ballot. If it is a new address, they contact the voter to ask
where to mail the ballot.
CHAIR SHOWER recalled that the division recently made changes to
that procedure.
MS. FENUMIAI said she didn't recall that conversation.
4:36:46 PM
CHAIR SHOWER asked if the state reviewed the recent Supreme
Court ruling on drop boxes and the potential that they are
unconstitutional.
MS. FENUMIAI said she was not aware of the ruling.
CHAIR SHOWER asked Mr. Flynn if he wanted to comment.
MR. FLYNN asked if he was referring to the recent Supreme Court
case from Arizona.
CHAIR SHOWER answered yes.
MR. FLYNN confirmed he was aware of the case.
CHAIR SHOWER asked if the Department of Law or administration
had any thoughts on the case and if there was anything Alaska
might want to consider changing before it becomes an issue.
MR. FLYNN said he did not have any thoughts to offer but he was
prepared to respond to a proposal on drop boxes if one was
forthcoming.
CHAIR SHOWER suggested it was something to think about before it
becomes an issue.
4:37:58 PM
CHAIR SHOWER mentioned that he was working on an elegant
solution to ballot harvesting. He asked Ms. Fenumiai if she had
any thoughts on why ballot harvesting is allowed and if it is
policy as opposed to statute.
MS. FENUMIAI replied she had no comment but, "Whatever policy
the legislature wants to enact related to that, the division
will follow."
CHAIR SHOWER asked if there have been issues with ballot
harvesting that the division has had to overcome.
MS. FENUMIAI answered that nothing comes to mind.
4:39:15 PM
CHAIR SHOWER read the following question from the scorecard:
[Original punctuation provided.]
Q: The state does not allow third-party strangers,
other than immediate family or a caregiver, to pick up
and deliver a voter's absentee ballot?
CHAIR SHOWER commented that was just discussed and the state
allows it ad infinitum.
MS. FENUMIAI clarified that there is a statute that allows
anybody to get a ballot through a special needs process. The
person must appoint someone to pick up a ballot and bring it to
their home. The personal representative serves as the witness
for those ballots.
CHAIR SHOWER acknowledged that was discussed last year and it
was not of great concern because there is a process. He said
that is different than someone going to a senior center and
collecting any number of ballots. He noted there were reports of
people coming to Alaska and being paid to harvest ballots and
testimony from somebody from Hoonah who alleged seeing someone
with ballots in their briefcase.
SENATOR REINBOLD asked Ms. Fenumiai to comment on the
allegations about ballot harvesting because she witnessed it
leading up to the 2020 election. She emphasized that this needs
to be fixed.
4:41:13 PM
MS. FENUMIAI said that to the best of her knowledge there is
nothing in state statute that prohibits ballot harvesting.
SENATOR REINBOLD asked, "Wasn't there something in there that
could not be done and then [Judge Dani] Crosby overruled it."
MS. FENUMIAI replied the court ruled that witness signatures
were not needed for the 2020 General Election. She added that
there are multiple election offense statutes that deal with
election tampering but ballot harvesting is not specifically
mentioned.
SENATOR REINBOLD asked if the judge's ruling made it easier for
ballot harvesting.
MS. FENUMIAI said she didn't know if it made it easier or
harder.
4:43:21 PM
CHAIR SHOWER asked Mr. Flynn or Mr. von Spakovsky if they had
any comments.
MR. FLYNN stated that ballot collection is not prohibited by
state law, but filling out a ballot for someone else would be a
crime. To Senator Reinbold's question, he explained that the
witness signature case had nothing to do with ballot harvesting.
CHAIR SHOWER asked how the Division of Elections or the
Department of Law would know if somebody filled out 20 ballots
for people at a senior center.
MR. FLYNN said voters can track their absentee ballot to see if
it was counted, and as Ms. Fenumiai said, elections staff has
long experience in picking up on suspicious signatures.
CHAIR SHOWER pointed out that that relies on human intuition and
that system probably could not catch 50,000 suspicious
signatures. He reiterated that this is an area that needs work.
4:45:56 PM
MR. FLYNN said that with 50,000 ballots the division would have
seen a massive increase in duplicate votes if people were
filling out ballots on behalf of other people and others would
notice that they were recorded as having voted when they had
not. There was no evidence of that in the last election, he
said.
CHAIR SHOWER restated his question about how the Division of
Elections or the Department of Law would know if somebody filled
out 20 ballots for people at a senior center.
MR. FLYNN said there is always going to be some amount of fraud
that is impossible to detect. When an election is reviewed after
the fact, the question is whether there was enough to change the
outcome. No election is perfect and the best the division can do
is to run the best election it can and deter malicious activity
by making it criminal.
CHAIR SHOWER offered his solution which is to prohibit ballot
harvesting.
He recognized Christian Adams.
4:48:07 PM
J. CHRISTIAN ADAMS, President and General Counsel, Public
Interest Legal Foundation, Indianapolis, Indiana, introduced
himself and directed attention to the case U.S. v. Brown (494
F.Supp.2d 440). He said it relates to the question and gives the
legislature all the reason it needs to ban ballot harvesting in
Alaska. In that case the victims describe a system of how ballot
harvesters used social relationships to vote victims' ballots.
This was not easy to detect but it is a clear reason that this
should be banned.
4:49:47 PM
MR. VON SPAKOVSKY added that nobody is talking about limiting
the ability of voters to return their absentee ballots, but it
is unwise policy to give third-party strangers this authority
because they may have a stake in the outcome of the election.
They are in a position to be able to change ballots and election
officials would have no idea this happened. It is also easy for
those individuals to not deliver ballots if that serves a
political purpose. Finally, there are no observers to prevent
ballot harvesters from trying to coerce voters to vote a
particular way.
CHAIR SHOWER said that is a good point to consider.
SENATOR REINBOLD asked Mr. Flynn if he believes a witness
signature increases election integrity.
MR. FLYNN answered yes; the state defended the witness
requirement in the Alaska Supreme Court case arguing that it was
a deterrent to fraud. The court ruled against the state but the
state appealed and the requirement for the witness signature is
back in place.
4:53:42 PM
SENATOR REINBOLD asked if he would support a forensic audit if
money weren't an issue.
MR. FLYNN said he was available to talk about the law and he
would defer to the administration for a position.
CHAIR SHOWER reported that the Lieutenant Governor's Office said
it would not support a forensic audit.
SENATOR REINBOLD asked Ms. Fenumiai if she would support a
forensic audit of the 2020 election.
MS. FENUMIAI replied the division will implement the policy the
legislature passes and do its best to uphold the law. She added
that while it was not a forensic audit, the division conducted
an unprecedented hand recount of a statewide ballot measure. It
did not show anything nefarious with the ballot tabulation
equipment. More than 300,000 ballots were sorted by hand by a
multitude of bipartisan election workers and it did not overturn
the results certified by the State Review Board.
SENATOR REINBOLD said there are trust issues in the state and
legislators are having to answer to voters. She voiced support
for a forensic audit.
CHAIR SHOWER said his concern moving forward is to ensure there
is no ballot harvesting and the compromised data is not used
inappropriately. He pointed out that a hand count only tells
whether the number of ballots going in and out of the machines
is the same. The issue is whether any of those ballots were
voted maliciously and there is no way to know that without a
forensic audit. He said he isn't as concerned about who wins the
election as that it is fair and appropriate, has good voter
access, and the people trust the election.
4:59:40 PM
CHAIR SHOWER asked what percentage of absentee ballots were
returned by mail and by hand.
MS. FENUMIAI replied the division does not code absentee ballots
according to how they were received. When they are returned they
are logged and received as an absentee by mail ballot
CHAIR SHOWER asked what happens to the return envelopes.
MS. FENUMIAI replied they are kept for four years.
5:00:25 PM
CHAIR SHOWER read the following question and answer from the
scorecard:
[Original punctuation provided.]
Q: The state uses the Systematic Alien Verification
for Entitlement (SAVE) Program to help identify non-
citizens who register to vote?
A: No
CHAIR SHOWER asked if the answer was "No" because there is no
statutory guidance.
MS. FENUMIAI replied that was her assumption.
CHAIR SHOWER asked if that was a policy decision.
MS. FENUMIAI replied she did not know the requirements to use
the SAVE Program.
CHAIR SHOWER asked if she would follow up with an answer so he
knows if that can be done through policy/regulation as opposed
to passing legislation.
MS. FENUMIAI agreed to follow up with the information.
CHAIR SHOWER read the following question and answer from the
scorecard:
[Original punctuation provided.]
Q: The state does not connect voting and tabulating
machines to the internet?
A: Yes
CHAIR SHOWER commented that while the answer is "Yes," the
machines can be connected if they are set up to do so.
MS. FENUMIAI confirmed that machines that have an internal modem
can transmit information if they have connectivity.
CHAIR SHOWER suggested people watch the HBO special documentary
"Kill Chain" that describes how voter machines can be hacked.
5:02:48 PM
CHAIR SHOWER read the following question and answer from the
scorecard:
[Original punctuation provided.]
Q: The state legislature has standing to sue
(statutorily or via state constitution) to ensure
compliance with election laws as passed by the
legislature?
A: No
CHAIR SHOWER asked if the answer is "No" because it's not in
statute.
MS. FENUMIAI replied that was her understanding.
CHAIR SHOWER said she did not have to respond to the next
questions. He was highlighting things that make it difficult for
the legislature to do its job. He read the following questions
and answers from the scorecard:
[Original punctuation provided.]
Q: Any changes to the state's election laws via a
court settlement require the approval of the state
legislature?
A: No
Q: The state does not automatically register voters?
A: No
He noted that when data is transferred from the PFD Division to
the Division of Elections there is no crosscheck, the
information is just accepted. He opined that that should be
tightened.
SENATOR REINBOLD asked if the division has access to databases
at DMV, public assistance, and the permanent fund and if it is
helpful.
5:04:26 PM
MS. FENUMIAI replied the division does not use DMV for voter
registration purposes, but people can register to vote online if
they have a driver's license. DMV records are used as part of
ERIC and the division uses data from the multistate cross check.
The division does not have access to the public assistance
database but it does have access to the PFD database through the
automatic voter registration that was enacted through voter
initiative in 2015.
5:05:01 PM
CHAIR SHOWER asked the following question that was not on the
scorecard:
Q. Voter identifiers are compromised by the data
breach. Will a new voter ID system be in place for the
next election?
He asked if she agreed that the answer is "No." Nothing has
changed the identifiers for the November 2022 election.
MS. FENUMIAI replied that is correct at this time.
CHAIR SHOWER asked Mr. Ogan if he had anything to add.
5:06:27 PM
SCOTT OGAN, Staff, Senator Mike Shower, Alaska State
Legislature, Juneau, Alaska said the concern is that people with
malicious intent could apply for absentee ballots on behalf of
voters whose data was breached, particularly those who had not
voted in the last four or five election cycles. He asked if that
was plausible and if the division would know this was happening.
CHAIR SHOWER asked if she believes it is possible this happened
[in 2020] and that it would be difficult to detect.
MS. FENUMIAI replied that is speculative and while she has not
seen it happen, people do commit fraud.
5:08:38 PM
CHAIR SHOWER asked the following about Dominion voting machines:
Q. Are the Dominion machines equipped with modems
capable of transmitting or receiving data via cell
towers?
A. Yes
He noted that he had been told that the machines are not
connected to the internet.
Q. Have the Dominion machines been forensically
examined by anyone? If so, by whom and is the
information available?
A. No
CHAIR SHOWER advised Ms. Fenumiai he was told that information
was part of the report he does not have. He said he doesn't know
if something needs to be done with those machines without the
data from the report. The legislature's hands are tied.
MS. FENUMIAI reported that since she returned as director in
2019 there has been no forensic audit of the Dominion voting
equipment. The division has used Dominion equipment since 1998,
and significant functionality and logic and accuracy testing is
done on the units prior to each election by two separate
bipartisan boards. The new tabulators were used for the first
time in 2020.
CHAIR SHOWER asked if a third-party vender who is an IT expert
tests the machines.
MS. FENUMIAI answered no.
5:10:23 PM
CHAIR SHOWER offered his understanding that the report he has
only seen with redactions has some of the answers he is seeking
about the Dominion equipment, including how they were purchased,
but the information is redacted.
SENATOR REINBOLD asked for the number of Dominion machines and
how much it would cost to run a forensic audit on one. She also
asked for an explanation of the new tabulators that were used in
2020.
MS. FENUMIAI answered that 305 or 306 tabulators were deployed
to precincts and another 105 or 106 precincts hand count
ballots. She did not know the cost of a forensic audit.
SENATOR REINBOLD asked how many of the 300 some machines should
be audited.
MS. FENUMIAI replied she is not a subject matter expert in
forensic audit.
5:12:22 PM
CHAIR SHOWER asked who approved the redactions in former
Commissioner Tshibaka's report and under what authority.
MR. FLYNN explained it was done by the Department of Law working
with the administration. He suggested that Alan Birnbaum could
speak to more specific questions.
CHAIR SHOWER asked Mr. Birnbaum to comment.
5:13:11 PM
ALAN BIRNBAUM, Chief Assistant Attorney General, Civil Division,
Information and Project Section, Department of Law, Juneau,
Alaska, explained that the Department of Law reviewed the report
and discussed the review with the administration. He advised
that those conversations are protected under attorney client
privilege, as part of the deliberative process privilege, and
under the executive communications privilege
CHAIR SHOWER asked who approved each one of the redactions.
MR. BIRNBAUM replied he did not have a response.
CHAIR SHOWER retorted:
I am sick and tired of not getting an answer as a
sitting legislator unable to do my job when I have on
the record the former commissioner tell me she was
asked to produce this report for the public
consumption. That report has been withheld from us for
almost a year and when I finally get to look at it,
half of it (the important part that tells me how I can
do my job) is redacted. There is no classified
information in that. There isn't. But I was told by
the commissioner before she left this administration
(we have her on the record in talking a lot of
conversations) that that did not exist. What you just
said. Now you may be telling me what you believe to be
true and that's fine. I'm telling you that there is
conflicting information I'm getting. That tells me the
commissioner said it was produced for public
consumption. That in the public interest, the good of
the public interest, there is not client attorney
privilege information. So, I've got a problem here
with how this has played out for us, because this
makes it difficult for another branch of government to
do its job when an information report that should be
produced under...the records request - can't get it.
MR. BIRNBAUM said his reference to attorney client privilege is
with respect to his communication within the administration
regarding the redactions. None of the redactions were made based
on the attorney client privilege. Rather, they were made based
on the deliberative process privilege, executive communications
privilege, and under AS 40.25.120(a)(10) that protects state
security.
CHAIR SHOWER asked what good it is to spend the time and money
to produce an information report when it is withheld from
everyone who needs it to do the job. He acknowledged it was a
rhetorical question.
SENATOR REINBOLD expressed frustration about the Department of
Law blocking her information requests about the Governor's
travel to learn about COVID. She warned that this could become a
larger issue.
5:18:53 PM
CHAIR SHOWER restated his frustration.
MR. OGAN commented on his experience years ago with federal
solicitors and records requests under discovery.
CHAIR SHOWER related he has been advised by counsel that if it
is in the greater public good, attorney client privilege and
executive privilege do not exist. He offered his contention that
the report should be released because if affects the entire
state.
He asked Ms. Fenumiai if she had closing comments.
MS. FENUMIAI said she would go through her notes and provide the
information she promised as soon as possible.
5:23:40 PM
There being no further business to come before the committee,
Chair Shower adjourned the Senate State Affairs Standing
Committee meeting at 5:23 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Senate State Affairs agenda.pdf |
SSTA 1/18/2022 3:30:00 PM |
Election/Ballot security protocols |
| The Heritage Foundation Election Integrity Scorecard Alaska 1-18 meeting.pdf |
SSTA 1/18/2022 3:30:00 PM |
|
| Alaska legislative testimony J Christian Adams Jan 18 2022.pdf |
SSTA 1/18/2022 3:30:00 PM |