01/26/2012 08:00 AM House STATE AFFAIRS

          HB  77-NONPARTISAN BLANKET PRIMARY ELECTION                                                                       
                                                                                                                                
8:56:29 AM                                                                                                                    
                                                                                                                                
CHAIR LYNN announced that the  next order of business was SPONSOR                                                               
SUBSTITUTE FOR HOUSE BILL NO. 77,  "An Act establishing a top two                                                               
nonpartisan blanket  primary election  system for  elective state                                                               
executive and  state and  national legislative  offices; changing                                                               
appointment procedures relating to  precinct watchers and members                                                               
of  precinct  election  boards, election  district  absentee  and                                                               
questioned ballot counting boards,  and the Alaska Public Offices                                                               
Commission;  requiring  certain  written  notices  to  appear  in                                                               
election pamphlets  and polling places; relating  to declarations                                                               
of candidacy and  letters of intent; and  amending the definition                                                               
of 'political party.'"                                                                                                          
                                                                                                                                
8:56:43 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG,  as  joint prime  sponsor,  introduced                                                               
SSHB 77.   He said  in the early  days of statehood,  Alaska used                                                               
the black  line primary ballot,  which he explained was  a ballot                                                               
listing all Republican  candidates on one side of  the black line                                                               
and all  Democratic candidates on  the other side.   Voters could                                                               
vote for  anyone they chose,  as long as  they did not  cross the                                                               
black  line.   He said  that system  has come  to be  known as  a                                                               
classic open  primary.  One of  the first bills passed  by former                                                               
Governor Hickel  initiated an open primary,  which Representative                                                               
Gruenberg  said was  really  a blanket  primary,  in which  every                                                               
voter  could vote  for  any  name on  the  ballot, regardless  of                                                               
political affiliation.                                                                                                          
                                                                                                                                
9:00:19 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  most  Alaskans  highly prize  the                                                               
right to  vote for any candidate,  and they had that  right until                                                               
about 1990, when a former member  of the legislature came up with                                                               
the  theory that  the  Republicans  had a  right  to close  their                                                               
primary, which happened by court  rule.  In approximately 1993, a                                                               
man  named, Mike  O'Callaghan, challenged  that court  rule in  a                                                               
case that  went up to  the Alaska Supreme Court.   Representative                                                               
Gruenberg  deferred   further  comment  to  Gail   Fenumiai,  the                                                               
director of the Division of Elections.                                                                                          
                                                                                                                                
9:04:52 AM                                                                                                                    
                                                                                                                                
GAIL  FENUMIAI, Director,  Division of  Elections, Office  of the                                                               
Lieutenant  Governor,  in  response  to questions,  said  she  is                                                               
familiar  with   SSHB  77  and   does  not   anticipate  problems                                                               
implementing  the proposed  law.   She  related  the fiscal  note                                                               
reflects the reduction  in the number of ballots  that would have                                                               
to  be  printed during  a  primary  election, resulting  in  cost                                                               
savings of  about $34,000  each primary election.   She  said the                                                               
provision in  SSHB 77  that would  require signage  posted, which                                                               
would  state  that designating  party  preference  is a  personal                                                               
preference,  would  not  create substantial  cost  to  implement,                                                               
because  the division  already posts  information in  each booth,                                                               
and information could be added  to that poster.  Furthermore, she                                                               
responded  that  she does  not  see  a one-ballot  primary  style                                                               
causing the division any difficulty.                                                                                            
                                                                                                                                
9:09:28 AM                                                                                                                    
                                                                                                                                
MS. FENUMIAI, in response to  Representative Seaton, said the 30-                                                               
day requirement  language on page  8, [lines 12-24],  is existing                                                               
language in AS  15.20.190(a).   She said the  new language in the                                                               
bill  addresses  how  candidates  would advance  to  the  general                                                               
election ballot.                                                                                                                
                                                                                                                                
REPRESENTATIVE SEATON asked  a question related to  the timing of                                                               
primary  and special  elections  and how  that  would affect  the                                                               
division.                                                                                                                       
                                                                                                                                
MS. FENUMIAI  responded that  she had received  SSHB 77  late the                                                               
previous night,  and she requested  time in which to  research an                                                               
answer for Representative Seaton.                                                                                               
                                                                                                                                
9:11:29 AM                                                                                                                    
                                                                                                                                
LIBBY  BAKALAR,  Assistant  Attorney  General,  Labor  and  State                                                               
Affairs  Section,   Civil  Division  (Juneau),  in   response  to                                                               
Representative  Gruenberg, said  she has  reviewed the  following                                                               
U.S. Supreme Court cases:   Washington State Grange v. Washington                                                             
State Republican Party and California  Democratic Party v. Jones.                                                           
She  stated  that  to  the extent  the  proposed  legislation  is                                                               
similar to the  Washington State Grange case, it  would survive a                                                             
facial First Amendment federal challenge.                                                                                       
                                                                                                                                
9:13:49 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON noted that there  is language on page 18 of                                                               
the proposed  legislation, which he  said seems to  eliminate no-                                                               
party  candidates in  the general  election.   He  asked if  that                                                               
would have legal implications for Alaska.                                                                                       
                                                                                                                                
9:14:37 AM                                                                                                                    
                                                                                                                                
MS. BAKALAR responded that she is  not prepared to answer at this                                                               
time, but offered to get back to the committee with an answer.                                                                  
                                                                                                                                
REPRESENTATIVE SEATON  requested an analysis from  the Department                                                               
of Law (DOL).                                                                                                                   
                                                                                                                                
MS. BAKALAR, in response to  Chair Lynn, indicated that she would                                                               
be able to provide the analysis.                                                                                                
                                                                                                                                
9:15:14 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG  said he  would invite  Alpheus Bullard,                                                               
the bill drafter, to be present  to answer questions, if the bill                                                               
was heard again by the committee.                                                                                               
                                                                                                                                
9:15:47 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE JOHANSEN said he  thinks the constitutional issues                                                               
being discussed should be vetted  in the House Judiciary Standing                                                               
Committee.                                                                                                                      
                                                                                                                                
REPRESENTATIVE   GRUENBERG,   in   response   to   Representative                                                               
Johansen,  confirmed  that  currently,  a  registered  Republican                                                               
cannot  vote  the  Democrat  primary   ballot  and  a  registered                                                               
Democrat  cannot   vote  the  Republican  primary   ballot.    He                                                               
continued as follows:                                                                                                           
                                                                                                                                
     Anybody  can  vote in  ...  the  open ballot,  even  if                                                                    
     you're a  Republican.   If you're  a member  of another                                                                    
     party, you  cannot vote in  the Republican  ballot; you                                                                    
     can't  go  back and  forth.    The Republican  can  ...                                                                    
     choose one or the other;  if you're a member of another                                                                    
     party, you cannot choose the Republican ballot.                                                                            
                                                                                                                                
REPRESENTATIVE  JOHANSEN   asked  who  decides  whether   or  not                                                               
undeclared  or  nonpartisan voters  can  vote  in the  Republican                                                               
primary.                                                                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG answered  that  it  was the  Republican                                                               
Party that made  the rule that allows  nonpartisan and undeclared                                                               
voters  to choose  one or  the other  ballot.   In response  to a                                                               
follow-up question, he confirmed  that the Democratic Party could                                                               
make the  same decision; political parties  have a constitutional                                                               
right  to  do  so.    In response  to  a  follow-up  comment,  he                                                               
confirmed that  in the general  election, any  [registered voter]                                                               
can vote for any candidate on the ballot.                                                                                       
                                                                                                                                
REPRESENTATIVE JOHANSEN  asked if  someone not affiliated  with a                                                               
party can file for election and run for State House.                                                                            
                                                                                                                                
REPRESENTATIVE GRUENBERG answered yes.                                                                                          
                                                                                                                                
REPRESENTATIVE JOHANSEN asked if anyone  can vote for that person                                                               
in any election.                                                                                                                
                                                                                                                                
REPRESENTATIVE GRUENBERG said  he would need to  ask Ms. Fenumiai                                                               
to answer that question.                                                                                                        
                                                                                                                                
REPRESENTATIVE  JOHANSEN questioned  why  the  joint sponsors  of                                                               
SSHB 77 would not want to  allow a political party to control who                                                               
is going to  represent them.  He said he  does not understand the                                                               
basic motivation for the proposed legislation.                                                                                  
                                                                                                                                
9:20:45 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE GRUENBERG responded as follows:                                                                                  
                                                                                                                                
     The primary election determines  who will represent the                                                                    
     party.   This  changes it  into a  nonpartisan primary.                                                                    
     The reason for that ...  is because that's the only ...                                                                    
     legal way to  have a truly open ballot  under the First                                                                    
     Amendment right of  association of the party.   The two                                                                    
     U.S. Supreme  Court cases ...  read together  stand for                                                                    
     the proposition that if the  primary determines who the                                                                    
     top vote  getter for the  Republicans and the  top vote                                                                    
     getter for the  Democrats are - if that's  the way it's                                                                    
     set up  - the  parties have  a constitutional  right to                                                                    
     determine    the     method    of     electing    their                                                                    
     representatives.    Only  if the  primary  election  is                                                                    
     nonpartisan can  everybody get a  ballot and  vote back                                                                    
     and forth  whoever they want to.   In that case,  it is                                                                    
     no longer a creature of  the party, but it's a creature                                                                    
     of the people.  And our  goal here ... is to restore to                                                                    
     the greatest  possible extent the  right of  the people                                                                    
     to vote for  anybody they want to.  ...  The reason for                                                                    
     that is because many races are decided in the primary.                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  concluded   that  the  joint  sponsors                                                               
believe it  is the  right of  the people to  have that  choice in                                                               
their hands and that to  give them that choice is constitutional.                                                               
He noted  that 60 percent voted  in favor of this  legislation in                                                               
California.                                                                                                                     
                                                                                                                                
9:24:27 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  JOHANSEN observed  that while  this is  a subject                                                               
that  is  being  touted  as  nonpartisan,  in  the  last  fifteen                                                               
minutes, there have been press  releases and Twitter and Facebook                                                               
references  to   "this"  as  being   "a  huge  priority   of  the                                                               
AlaskaDemocrats.com."                                                                                                           
                                                                                                                                
REPRESENTATIVE  GRUENBERG   said  he  was  not   aware  that  the                                                               
Democratic Party had taken a position [on this issue].                                                                          
                                                                                                                                
9:25:20 AM                                                                                                                    
                                                                                                                                
CHAIR LYNN announced that SSHB 77 would be set aside.                                                                           
                                                                                                                                
          HB  77-NONPARTISAN BLANKET PRIMARY ELECTION                                                                       
                                                                                                                                
9:29:58 AM                                                                                                                    
                                                                                                                                
CHAIR  LYNN   announced  that  the  committee   would  return  to                                                               
discussion of SPONSOR  SUBSTITUTE FOR HOUSE BILL NO.  77, "An Act                                                               
establishing  a  top  two nonpartisan  blanket  primary  election                                                               
system  for  elective  state executive  and  state  and  national                                                               
legislative offices; changing  appointment procedures relating to                                                               
precinct  watchers  and  members  of  precinct  election  boards,                                                               
election  district   absentee  and  questioned   ballot  counting                                                               
boards,  and  the  Alaska Public  Offices  Commission;  requiring                                                               
certain  written  notices to  appear  in  election pamphlets  and                                                               
polling  places;  relating  to   declarations  of  candidacy  and                                                               
letters  of intent;  and amending  the  definition of  'political                                                               
party.'"                                                                                                                        
                                                                                                                                
9:30:35 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SHARON CISSNA, Alaska  State Legislature, as joint                                                               
prime  sponsor  of  HB  77,  said  in  the  1990s,  she  was  the                                                               
Democratic co-chair  alongside a  Republican co-chair  of Alaskan                                                               
Voters for  an Open Primary (AVOP),  and Representative Gruenberg                                                               
was the group's attorney.  She  said she witnessed the numbers of                                                               
people  in  the  1990s  crying  for  the  right  to  express  the                                                               
independence  of  Alaskans.    She said  recently  she  has  been                                                               
hearing  a constant  request for  an open  primary.   She related                                                               
that some of  her constituents have switched parties  in order to                                                               
vote on  the closed  ballot in primaries  to shift  the outcomes.                                                               
She  said,  "It  really  works  straight  against  what  maybe  a                                                               
majority  wants."    She  opined   that  an  open  primary  would                                                               
represent the people.                                                                                                           
                                                                                                                                
9:35:05 AM                                                                                                                    
                                                                                                                                
CHAIR  LYNN said  he thinks  bills related  to elections  are the                                                               
purview of the House State  Affairs Standing Committee, and it is                                                               
not uncommon for any bill heard  by the committee to "wander into                                                               
the purview of other committees ...."                                                                                           
                                                                                                                                
9:35:38 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   PETERSEN  said   he   has   been  contacted   by                                                               
constituents angry  that they were  being restricted in  terms of                                                               
which ballot they could use,  and those constituents did not want                                                               
to  switch parties  to  vote the  other ballot.    He echoed  the                                                               
previous  remark  that  Alaskans  are  independent  in  how  they                                                               
register and vote,  and they do not like to  be restricted in any                                                               
way.  He  relayed that several of his constituents  have told him                                                               
that they  do not vote  in the primary election  anymore, because                                                               
their  selection has  been  restricted.   He  opined  that it  is                                                               
important to  get voters to  the polls,  not only in  the general                                                               
election, but also in the primary election.                                                                                     
                                                                                                                                
9:37:30 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  CISSNA, in  response to  Representative Johansen,                                                               
said  the Republican  co-chair for  the  aforementioned AVOP  was                                                               
Bonnie Jack.                                                                                                                    
                                                                                                                                
9:38:16 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE   GRUENBERG,   in   response   to   Representative                                                               
Johansen,   offered  an   historical  background   regarding  the                                                               
aforementioned  AVOP court  case.   He  mentioned Washington  and                                                               
California as  two states that have  led the way in  open primary                                                               
legislation.                                                                                                                    
                                                                                                                                
9:44:54 AM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON offered his  understanding that the problem                                                               
that  SSHB 77  tries  to  address is  a  situation  in which  two                                                               
candidates from one party end up  running for an office.  If, for                                                               
example, the  candidates are both  Republican, then a  person who                                                               
votes a  Democratic primary  ballot will  not have  any say.   He                                                               
said that has  been a frustration that some of  the people in his                                                               
district have expressed.   He said he understands  the issue, but                                                               
said he is not sure this is the way to [resolve it].                                                                            
                                                                                                                                
CHAIR LYNN  ventured the  debate is  that political  parties have                                                               
the right to choose their  own representatives without people who                                                               
are not part of that party "getting into the mix."                                                                              
                                                                                                                                
9:47:33 AM                                                                                                                    
                                                                                                                                
CHAIR LYNN announced that SSHB 77 was held over.