SB 83-ELECTIONS; VOTING; BALLOT REQS  3:33:59 PM CHAIR SHOWER announced the consideration of SENATE BILL NO. 83 "An Act relating to elections; and providing for an effective date." He listed the individuals available to answer questions. 3:34:35 PM JOSH APPLEBEE, Chief of Staff, Lieutenant Governor Kevin Meyer, Juneau, Alaska, stated that SB 83 stems from the experience of the 2020 election cycle, which, due to COVID-19, was unlike any other. It offers four ideas for the committee to consider to help "bolster, tighten, and tweak" the election system. First, SB 83 provides the director of the Division of Elections flexibility to conduct additional hand counts if the circumstances of the election warrant it. The statute currently only permits a hand-count verification on one randomly drawn precinct within each district. Further hand counts are allowed only if the hand count comes back with significant deviation. He said the division believes that the ability to audit more precincts to ensure confidence in the results would improve election integrity. Second, SB 83 clarifies that two voter identifiers are required in order to apply for an absentee ballot, and that both a voter signature and identifier are required on an absentee ballot envelop. He said this is how the division interpreted and applied the law during the 2020 elections so this is codifying current practice. MR. APPLEBY emphasized that SB 83 does nothing to change the requirement for a witness signature. He highlighted that the Lieutenant Governor and the Department of Law argued to keep that requirement in the 2020 election but were unsuccessful in court. He further highlighted that that the court decision only applied to the 2020 elections and not any subsequent elections. Third, SB 83 allows the director to establish in regulation the amount of deposit required for a recount. He noted that the amounts in the existing statute are outdated and do not cover the actual costs. Fourth, SB 83 allows, but does not require, communities with a population of less than 750 to conduct elections by mail instead of in person. In the last election, some communities shut down their polling stations for legitimate health and safety reasons, but even in non-pandemic times it can be difficult to find staff and a polling location in small communities. This bill offers flexibility for the division to work with small communities to find the best way to ensure that every voter can exercise their right to vote. 3:38:54 PM CHAIR SHOWER advised that he requested a meeting with the Lieutenant Governor's Office to try to prevent overlapping efforts between SB 83 and SB 39, which he sponsored. 3:39:45 PM MR. APPLEBEE presented the sectional analysis for SB 83. Section 1. Provides the Division of Elections the flexibility to count more than one random precinct in the ballot review process should the Director have concerns about the elections process. Section 2. Clarifies a space for the voter identifier be made on the voter certificate that accompanies an absentee ballot. Section 3. Clarifies that one of the voter identifiers must be a voter's date of birth. Section 4. Clarifies that the voter certificate must include the information required in AS 15.20.030. Section 5. States that the absentee ballot counting board shall examine the voter certificate and determine that it has been properly executed including a voter's signature and voter identifier. Section 6. Clarifies that an absentee ballot may not be counted if the voter certificate does not contain a voter's signature or voter identifier. Section 7. Removes the deposit amount for a recount from statute and requires the Director to adopt regulations establishing the amount and manner of payment for a recount. Section 8. Gives the Division the flexibility to conduct voting by mail for communities with a population under 750 if necessary. Section 9. Adds the definition of voter identifier into statute. Section 10. Directs the Division to adopt regulations necessary to implement this bill. Section 11. Makes Section 10 effective immediately. 3:40:46 PM CHAIR SHOWER highlighted that while the court decision only applied to the 2020 elections, it did set precedent so nothing prevents a court from changing an election in a future emergency. He emphasized that, "The legislature is the constitutional authority for setting that law, not the courts." SENATOR REINBOLD echoed the previous concern and voiced support for sidebars. 3:42:00 PM SENATOR KAWASAKI asked Cori Mills with the Department of Law if the court case placed conditions other than the pandemic. [Ms. Mills dropped off line and Senator Kawasaki posed a second question.] 3:43:01 PM SENATOR KAWASAKI noted the perjury implications for a voter who falsifies information when providing an identifier on an election ballot application and asked if perjury also applies for anybody who signs as a witness. 3:43:38 PM CORI MILLS, Deputy Attorney General, Civil Division, Department of Law, Alaska, Alaska, cautioned that she might need to correct her answers after consultation with the criminal division. She said the applicable criminal laws are perjury and falsification and she believes that it would be a crime of falsifying a signed statement to falsely witness a ballot. CHAIR SHOWER asked for the penalty for that crime. MS. MILLS cited AS 15.56.040. Voter misconduct in the first degree. She offered her understanding that falsely witnessing would fall under that statute and it is a class C felony. SENATOR KAWASAKI referred to the ballot he applied for but did not use. He noted that the only requirement under the witness affidavit is to be over age 18. He asked if she could explain why it was written that way. MS. MILLS said she would guess that the language has been that way for some time, but she would defer to Ms. Fenumiai to explain the reason. 3:47:56 PM GAIL FENUMIAI, Director, Division of Elections, Office of the Lieutenant Governor, Juneau, Alaska, confirmed that that language has been on the by mail return envelopes for at least the last two decades. CHAIR SHOWER pointed out the very small print warning outside the box for the witness signature says, "False statements made by the voter or by the attesting witness on the certificate are punishable by law." SENATOR KAWASAKI asked Ms. Mills for the basis for the unanimous decision in the 2020 elections court case. MS. MILLS advised that it was a preliminary injunction motion in the superior court. The court looked at the pandemic and the health and safety risks of interacting with another person. The Department of Law (DOL) appealed the decision to the Alaska Supreme Court and that court found that the superior court judge did not abuse her discretion in granting the preliminary injunction. She clarified that the Supreme Court did not go into the merits of the case, just whether the decision was within the judge's discretion. SENATOR KAWASAKI asked if she believes that DOL would be able to win the case in the Alaska Supreme Court if it weren't a pandemic and the argument was more broad-based. MS. MILLS replied it was DOL's legal position that the law is constitutional both under the pandemic and if there weren't a pandemic. 3:51:50 PM CHAIR SHOWER reported that in March 2020, the legislature took up the issue of the witness signature and the decision was to keep that requirement intact. SENATOR HOLLAND referred to Section 8 on page 6 and asked about the benefit of providing a definition for the term "community." CHAIR SHOWER noted that this was an area of overlap between SB 83 and SB 39. The Alaska Municipal League suggested the population of 750 and SB 39 provides a more nuanced definition. He asked Mr. Applebee to comment. MR. APPLEBEE explained that the term "community" refers to any size town or village that has a population of less than 750 and that number is the break between small and larger. SENATOR REINBOLD asked about defining the type of pandemic because she feels the situation of the COVID-19 pandemic has been exploited. 3:55:45 PM MS. MILLS responded by adding precision to her response to Senator Kawasaki. She said the concerns were specific to COVID- 19 and the evidence before the court was specific to transmissibility, death rates, and health information related to COVID-19. That is the information the plaintiff's council presented and the court weighed. The Department of Law put forward their own information, specifically related to COVID-19, about the safety options to get a witness signature. SENATOR REINBOLD asked about providing a clear definition of "pandemic" in this or another bill that would be applicable in the future. MS. MILLS said it is an interesting concept and the department would be willing to look at any proposal brought forward. CHAIR SHOWER asked Mr. Appleby what led to the decision to make 750 the population cutoff for conducting an election by mail. MR. APPLEBEE answered that the basis was conversations with community leaders and time spent recruiting election workers in rural areas. The determination was that 750 is the size where recruiting becomes difficult for an in-person election. 3:59:26 PM CHAIR SHOWER asked Ms. Mills if DOL raised the issue of the courts' ability to change election law at either the state or federal level. MS. MILLS answered no; this was a state-centered issue. CHAIR SHOWER asked what protocols were in place to ensure the accuracy of the voter rolls. MS. FENUMIAI advised that she provided a document to the committee that outlines the list maintenance processes that the division undertakes to keep the voter rolls in accordance with state and federal law. She asked if members had the document. CHAIR SHOWER answered yes and asked for a 30,000-foot view. 4:01:55 PM MS. FENUMIAI explained that the division follows the provisions in AS 15.07.130, which meets the guidelines under the National Voter Registration Act. The division participates in a 30-state cross matching program, sends notices to people who appear to be registered to vote in other states, and receives notices about voter deaths from a variety of sources. This includes information from the non-profit organization ERIC, secretaries of state offices, state health and analytics, voters' families, obituaries, and voters who request cancellation. 4:03:36 PM SENATOR KAWASAKI asked if the division receives updated information when a person applies online for a permanent fund dividend (PFD) and they list an address that is different than is in the voter roll. MS. FENUMIAI replied the division receives the information from the PFD and their process is to notify the person and ask if they want the information on the PFD application to update their voter registration record. These voters have a 30-day window to opt out of changing their voter registration record. If they do not opt out, the division uses the information they provided on their PFD application to update their voter registration. SENATOR KAWASAKI asked if the system is automated or if there is discretion. He mentioned the PFD fraud unit that uses data to determine the truthfulness of residency claims. 4:05:05 PM MS. FENUMIAI answered that the division takes the information at face value just as they do for those who register to vote, certified under penalty of perjury, directly with the division. SENATOR KAWASAKI asked how the voter roll is affected when someone applies for a PFD and claims to be in the state but their IP address identifies them as applying from out-of-state. MS. FENUMIAI asked for further clarification of the question because a voter does not need to be in the state to remain registered to vote. 4:06:13 PM SENATOR KAWASAKI asked if the division has a way to prevent a person who lives out of state from becoming registered to vote if they apply for a PFD online claiming that they live at a former Alaska address. MS. FENUMIAI answered no. A voter who registers through the PFD application and does not respond to the opt-out notice is registered to vote based on the information provided from the permanent fund. CHAIR SHOWER added that his office recently learned that the data from the PFD application passes directly through to the Division of Elections. SENATOR REINBOLD recalled a bill that allowed members of the military who had left Alaska to apply for a PFD if they intended to return at some time. She asked Ms. Fenumiai if she was aware of that legislation. MS. FENUMIAI said she does not know the PFD rules, but Title 15 provides that an individual who has an intent to return does not lose their residency for voting purposes. CHAIR SHOWER related his personal experience that when he was stationed outside Alaska he was always able to vote absentee but he did not receive the dividend. SENATOR REINBOLD opined that "intent to return" ought to be defined. 4:10:30 PM CHAIR SHOWER found no further questions and stated he would hold SB 83 in committee.