Legislature(2001 - 2002)
04/27/2001 01:48 PM Senate JUD
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
HB 193-MODIFIED BLANKET PRIMARY ELECTION
CHAIRMAN TAYLOR announced HB 193 to be up for consideration.
Number 1163
MS. SARAH FELIX, Assistant Attorney General, said she was also
testifying for the Division of Elections. She explained:
This bill is necessary because the Alaska statutes
currently provide for a blanket primary in which all the
voters may vote for any candidate regardless of party
affiliation. The United State Supreme Court last summer
issued a decision in the case called California
Democratic Party v. Jones that basically said that a
state could not force a political party to participate in
a blanket primary against that partys' will. The court
found that that violated the first amendment rights of
free association of the political parties. So, the Jones
decision affects all states that had a blanket primary
system and that's California, Washington and Alaska. So
the Alaska statutes need to be amended because of
California Democratic Party v. Jones.
In our state, we did have objections from a political
party to the blanket primary under the Jones case and,
therefore, the State of Alaska could not force that party
to participate in the blanket primary. When we faced
those objections last summer at the primary election,
there was insufficient time between when the Jones
decision was issued on June 26, 2000 and the primary
election, which was being held in August 2000. There was
insufficient time during that brief window for the
legislature to enact new primary election legislation.
Obviously, you weren't in session so the Lieutenant
Governor issued emergency regulations for conduct of the
primary election for that political party. Those
regulations have now expired by operation of law and
Alaska needs a new set of statutes, a new law, on the
primary election.
In order to help deal with this issue, the Lieutenant
Governor felt that she was responsible for making a
recommendation to the legislature for a new primary
election law and, therefore, she created a task force on
the primary election. Normally, we would have the
chairperson of that task force testifying today, former
Alaska Attorney General, Av Gross, but he's out of state.
He would tell you the task force developed legislation
and that the Governor presented that to the state
legislature. That legislation has gone through the House
and it's different from what the primary election task
force proposed and it's before you now, the Finance
Committee version of HB 193.
The primary election task force that was convened by the
Lieutenant Governor was composed of former lieutenant
governors and former attorneys general and Av Gross was
the chairperson of the task force. It was a non-partisan
task force and viewed its mission as coming up with a new
law on the primary election because Alaska's law was no
longer valid.
The process the task force used was to convene an
informational meeting where they received the laws and
options for conducting the primary election. Then there
was another at which public comment was taken from all
the recognized political parties, as well as the League
of Women Voters and other interested parties. Finally,
the task force had a third meeting in which it prepared
its recommendations for the primary election.
The task force basic principle was to change Alaska's law
as little as possible and comply with the United States
Supreme Court decision in the Jones case. The testimony
they received indicated that the political parties did
not object to using the premise of the blanket primary as
a starting point for the new primary election system.
However, the parties did want to retain the right to
limit participation in their party primaries.
Therefore, the original bill started with the premise of
the blanket primary and then the political parties had
the option to limit participation in their primary
election. For example, the Republican Party ballot would
list all candidates of all party affiliation, but only
members of the Republican Party could vote for Republican
Party candidates. However, members of the Republican
Party could vote for candidates of other parties so long
as those [indisc.].
The primary election task force believed that this type
of primary system was consistent with Alaska's past
history and the apparent preference of Alaskan voters for
the blanket format.
However, that original bill has changed and there have
been a number of [committee substitutes]. They all
approach the issue of the primary election from a
different direction. The [committee substitutes] start
from the premise of a closed primary in which parties are
allowed to open up their primaries if they so choose.
There are been two versions of this type of CS and the
current CS that you have before you from House Finance,
while calling for closed party primaries, starts with the
premise that nonpartisan and undeclared voters may
participate in the closed party primary so long as the
parties do not object.
A prior CS, I believe from House Judiciary, called for a
closed party primary and started from the premise that
only party members could vote in those primaries unless
the parties affirmatively opened up their primaries to
nonpartisan undeclared voters. In either case, the
primary election task force recommendation is essentially
the flip side of those kinds of [committee substitutes].
However, any of those bills will cure the problem in the
Alaska statute caused by the Jones case. It's the
legislature's policy call to make…
CHAIRMAN TAYLOR asked why we need to do anything in light of the
fact that the decision came down from the court, emergency
regulations were passed, and an election was held.
MS. FELIX replied that the emergency regulations have expired by
operation of law. They can only last for so long. "Now we are in
the situation of having no regulations on the books and a set of
statutes that do not comply with California Democratic Party v.
Jones."
CHAIRMAN TAYLOR asked if the state could not draft regulations
because the existing statute would not authorize those regulations.
MS. FELIX explained that existing statutes provide for a blanket
primary in Alaska. He said:
The emergency regulations that were adopted last session
on an emergency basis abrogated the statutes. The Alaska
Supreme Court considered that issue in the O'Callahan
case and the Court ruled that that was permissible on an
emergency basis essentially until the legislature was
able to meet and do a legislative fix. At that point the
executive branch was doing regulations, arguably, without
statutory authority. If there was no legislation to fix
the primary and we were left to our own devices and had
to do something, I think that we would probably be sued
no matter what we did unless there was some legislation
enacted this session regarding the primary election.
SENATOR THERRIAULT commented that the Constitution says the
election shall be run as dictated by law and that the legislature
should set the policy for the way the elections are run.
If we do nothing, the administration will have to do
something in a proposed regulation package. As we can see
by the piece of legislation they started out with,
there's some difference between what they would like to
see and what the legislature would like to see. So, we
will have taken that policy power that is ours by
Constitution, thrown it into their lap, they will make a
policy call, be subject to suit with no statute to back
it up and we will have basically thrown the whole policy
system into the court system, in my opinion. So, it's not
the advisable thing to do.
MS. FELIX agreed with Senator Therriault.
SENATOR THERRIAULT asked if it was the right of the party to have a
closed primary unless they choose to let people participate. He
asked if there was a problem coming from that direction.
MS. FELIX responded that they could do it either way.
SENATOR THERRIAULT said he had an earlier conversation with her to
understand House language with regard to candidates who get on the
ballot by petition. She explained because of a court case, the
legislature changed the law in 1995 to say that they all have the
same decision date when they get their name on the ballot. The
House changed the petition candidate date back to the day of the
primary, which basically undoes what the legislature did in 1995.
He thought there was some court decision driving Representative
Coghill's action.
MS. FELIX explained:
In House Judiciary the question came up of what to do
with the petition candidates under the closed primary
system: Should they appear on each of the parties' closed
primary ballots or should there be a separate ballot for
them? House Judiciary decided to solve that problem, they
would simply say that the petition candidates would not
appear on the primary election ballot. If they don't
appear on the primary election ballot, then we can't hold
them to the earlier filing date. The reason that the
petition candidates are held to the June 1 filing date is
because they had to appear on the primary election
ballot. That was taken out of the bill and now the
petition (no party) candidates only appear on the general
election ballot. So, there is a court case that says
under those circumstances, the petition candidates cannot
be held to the early filing deadline. They have to be
given a filing deadline no sooner than the date of the
primary election.
SENATOR THERRIAULT said he didn't understand why there's a problem
with everyone having the same decision date. He said he didn't have
a way of evaluating who his candidate was even though they could
read everything about him. He thought it would make things fair.
CHAIRMAN TAYLOR asked if there was a court case now.
MS. FELIX replied that there were two Superior Court cases; one in
1998, the Ziegler case, and one in 1990, the Sykes case. The Sykes
case was decided in the Superior Court by then Judge Dana Fabe, who
is now the Chief Justice of the Alaska Supreme Court. The person
who handled it explained:
It was a case in which the court made a very strong
decision that the state could not meet a rational basis
test, a compelling interest test; they couldn't really
establish any basis for requiring a petition candidate to
meet the same filing deadline of June 1 that the party
candidates would have to meet, because if the petition
candidate wasn't going to be in the primary, there was no
reason to require them to file at that time. The only
reason for the June 1 date is because the party
candidates are going to be in a primary. So, she found
there was an insufficient state interest to require that.
I understand what Senate Therriault is saying, but I
think the Court did consider that argument and didn't
find it was weighty enough.
REPRESENTATIVE COGHILL said:
I was persuaded in House Judiciary that if they weren't
going to be on the primary ballot, then the starting gun
could effectively go off on the date of the primary.
Since I was pushing so hard for the party selection
process to be the primary source of selection under that
primary election, they put themselves outside that party
process and put themselves in pretty much the initiative
or signature gathering process. At that point, I couldn't
make my case any stronger for keeping the primary closed
if I had gone that direction. The starting gun from my
point of view was sufficient for me to say the start of
the primary. So be it…
Number 170
This particular bill - I think it's better than what we
started off with. This forces an inclusion, though, with
those voters who have disenfranchised themselves from the
party - the undeclared, the nonpartisan and the little
independents. This particular bill you have before you
does force the inclusion in the primary and if there is
to be a closed primary within a party, they have to
choose to exclude people, I find that fundamentally
wrong. I find it out of line with the California
Democratic Party V. Jones.
TAPE 01-25, SIDE A
REPRESENTATIVE COGHILL continued:
On page 6, paragraph 2 of the decision, the Court has
recognized that the fist amendment protects the freedom
to join together in furtherance of common political
beliefs, which necessarily presupposes the freedom to
identify the people who constitute that association and
to limit the association to those people only. I think if
we force the inclusion, we're going against the very crux
of this case. I implore you to make that plea…
REPRESENTATIVE COGHILL had prepared some amendments. Regarding page
14, paragraph 14, he said, "If the party wants to open up the
primary, that should be a party decision. It should not be a state
mandate that they open it. In my view, a primary is a selection
process; it's not an election."
CHAIRMAN TAYLOR moved the two-page amendment that Representative
Coghill prepared as amendment 1. He objected for purposes of
discussion.
SENATOR THERRIAULT asked if the effect of this was to go back to
the closed primary unless the party takes action to open it.
REPRESENTATIVE COGHILL answered yes.
CHAIRMAN TAYLOR asked if that would leave them with a status quo in
that the Democrats have not had to open their primary in the past.
Their party had done it already.
REPRESENTATIVE COGHILL agreed in that regard.
CHAIRMAN TAYLOR asked if there were further objections to amendment
1. There were no objections and it was adopted.
SENATOR THERRIAULT asked if that action forced the legislature to
change the filing deadline for the petition candidates.
REPRESENTATIVE COGHILL replied yes and said, "The date of the
primary election would be the deadline for the physical delivery of
that petition for a general election."
SENATOR THERRIAULT asked if it forces the legislature to act
because of the possibility that their names will not appear on any
ballot in the primary and, because of that, there's no
justification for having them file on an earlier date.
REPRESENTATIVE COGHILL replied that was his understanding.
SENATOR THERRIAULT said that if they didn't have to file before the
date of the primary, they didn't have to file all the APOC reports
before then. "You have no idea if they're gathering money; where
it's coming from; what they're spending it on. So all your
information is available to them and you get nothing back."
REPRESENTATIVE COGHILL said if you go through the party process,
you would be running your election from June through November, but
the petition candidates would only have to start from the primary
date on. He said they could ask APOC to have them begin reporting
as soon as they start spending money on a petition drive.
CHAIRMAN TAYLOR asked if Judge Fabe's decision was based on the law
that the legislature passed by Senator Sharp to clarify that.
SENATOR THERRIAULT interjected that Senator Sharp's law was passed
afterwards and basically fixed the problem.
CHAIRMAN TAYLOR asked if this bill somehow threw that change out.
MS. FELIX replied yes. The bill removes the requirement that the
petition candidates run in the primary. Under the bill, they will
only run in the general election. If they put petition candidates
in the primary, there is the question of implementing.
CHAIRMAN TAYLOR said they would show up on everybody's ballot.
REPRESENTATIVE COGHILL said that would force a nonpartisan on a
partisan ballot, which is one of the things he has been arguing not
to do.
CHAIRMAN TAYLOR said he would give them until Monday to work out
the differences.
MS. GAIL FENUMIAI, Election Program Specialist, commented, "The
reason for the change in the bill the way it exists now is because
the no party candidates are removed from being on a primary ballot.
In 1995, the law was changed to have them appear on the primary
ballot. Therefore, they had the same filing deadline as candidates
from recognized parties. Prior to 1995, they went straight to the
general election ballot and had a filing deadline of the primary
election date, due to the lawsuit that was filed."
MS. FENUMIAI said she would check on Alaska Public Office's paper
work, but she thought they would fall under the same guidelines as
the candidates do. Petition candidates have to file a letter of
intent before they can start raising money and expending funds.
SENATOR THERRIAULT said he thought petition candidates should have
to make their decision on the same date everyone else does and file
the paperwork just like everybody else does.
CHAIRMAN TAYLOR said, "If they have the means to finance their own
campaign, they don't have to report anything until the day they
file…"
Number 724
CHAIRMAN TAYLOR said he would hold the bill over until Monday.
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