04/24/1995 01:36 PM Senate JUD

              HB  42 ABSENTEE VOTING & USE OF FAX                             
                                                                               
 TOM ANDERSON, legislative aide to Representative Martin, sponsor of          
 the measure, deferred the question of waiving the right to privacy            
 issue to Mr. Gaguine.                                                         
                                                                               
 SENATOR ADAMS suggested getting an outside opinion of the issue.              
                                                                               
 JOHN GAGUINE, Assistant Attorney General, gave the following                  
 testimony.  While reviewing the minutes of the Constitution, he               
 found there was discussion on this issue among two delegates.  One            
 asked, "How can secrecy be guaranteed if, as in the case of a blind           
 person, or in the case of a person who cannot read, the election              
 judges might have to assist."  The second delegate responded, "The            
 right of secrecy is not an absolutely unqualified right.  It is               
 like the right to freedom of speech, the classic example is that              
 the right to freedom of speech does not give one the right to yell            
 'FIRE' in a crowded theater."  After the discussion, the amendment            
 was adopted by a voice vote.                                                  
                                                                               
 Number 131                                                                    
                                                                               
 SENATOR ADAMS commented that discussion referred only to a person's           
 physical or mental ability.  MR. GAGUINE agreed, but stated he                
 quoted that to propose that the delegates did not intend this right           
 to be an absolute restriction.  He spoke to the fact that the bill            
 requires the voter casting a faxed ballot to acknowledge that they            
 are waiving whatever rights they have to absolute secrecy.  He                
 believed, if the law were challenged, the court would apply a                 
 balancing test, and would find that the minimal intrusion on ballot           
 secrecy is outweighed by the fact that this bill enfranchises                 
 people who would otherwise not be able to vote.                               
                                                                               
 Number 159                                                                    
                                                                               
                                                                               
 SENATOR GREEN asked if anyone sees absentee ballots when they are             
 received.  MR. GAGUINE replied that at the receiving end, the                 
 ballot is commingled, therefore no one at that end could connect              
 the voter with the ballot.  He clarified he was referring to the              
 operator at the sending end.                                                  
                                                                               
 Number 174                                                                    
                                                                               
 SENATOR MILLER commented it is possible to connect a name with an             
 absentee ballot in a small election, therefore there is no                    
 guarantee of secrecy even with absentee ballots.                              
                                                                               
 Number 187                                                                    
                                                                               
 SENATOR TAYLOR discussed the history of the constitutional freedom            
 of speech, and questioned Mr. Gaguine's reference to Messerly v               
 State, which says that Alaska's society's interest in knowing the             
 identity of a person who publishes an ad concerning a municipal               
 bond proposition outweighs that person's right, under free speech,            
 to privacy.                                                                   
                                                                               
 MR. GAGUINE answered that Messerly v State became invalid as of 10            
 days ago since the U.S. Supreme Court issued a differing opinion.             
                                                                               
 Number 220                                                                    
                                                                               
 SENATOR TAYLOR asked Mr. Gaguine to review the statutes governing             
 the APOC reporting requirements to determine if repeal of any of              
 that statute is necessary.  MR. GAGUINE offered to pass the request           
 to Nancy Gordon, Assistant Attorney General, in Anchorage.  SENATOR           
 TAYLOR felt it was important to inform the public of changes made             
 in light of the Supreme Court decision.                                       
                                                                               
 Number 232                                                                    
                                                                               
 SENATOR ADAMS asked about technical implementation of the bill, and           
 potential disclosure of ballot information from phone line problems           
 or human error.                                                               
                                                                               
 MR. GAGUINE assumed the court would take those types of occurrences           
 into account when applying a balancing test.  He personally                   
 considered the possibility of those types of problems occurring to            
 be a policy decision.                                                         
                                                                               
 Number 260                                                                    
                                                                               
 SENATOR ELLIS requested the bill be held in committee for further             
 study and discussion.  SENATOR TAYLOR replied the bill would be               
 heard again on Friday, April 28.