Legislature(2011 - 2012)CAPITOL 120
04/09/2011 12:30 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HJR4 | |
| HB215 | |
| SB31 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HJR 4 | TELECONFERENCED | |
| + | SB 31 | TELECONFERENCED | |
| += | HB 215 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 31 - COUNTING OF WRITE-IN VOTES
1:49:33 PM
CHAIR GATTO announced that the final order of business would be
CS FOR SENATE BILL NO. 31(JUD), "An Act relating to the counting
of write-in votes." [Before the committee was HCS
CSSB 31(STA).]
1:49:58 PM
SENATOR JOE THOMAS, Alaska State Legislature, as one of the
joint prime sponsors, explained that SB 31 would clarify
Alaska's statutes by utilizing language recommended by the
Alaska Supreme Court in its recent Miller v. Treadwell decision;
this language has been "reinforced" by the Alaska Superior Court
and the U.S. District Court, and in the 2010 General Election
Review conducted by the Office of the Lieutenant Governor. He
offered his understanding that the bill's proposed language
comes from the federal Uniformed and Overseas Citizens Absentee
Voting Act (UOCAVA), and that it specifies that the director of
the Division of Elections shall use a determination of a voter's
intent as the guiding principle when counting and judging a
write-in ballot and its validity. Senate Bill 31 incorporates
into statute the concept of favoring voter intent, which
Alaska's courts have done consistently for over 50 years. The
goal of clarifying Alaska's statutes on this issue is twofold:
one, to ensure that in future elections, as many Alaskans as
possible are enfranchised; and two, to strengthen the perception
of Alaska's democratic process. Achieving this goal, and using
inclusive rather than exclusive statutory language, will protect
the fundamental democratic rights of all voting Alaskans
regardless of their backgrounds, abilities, or skills.
1:51:45 PM
SENATOR THOMAS indicated that in Miller, the court focused on
the language of existing AS 15.15.360(a)(11), which says:
(11) A vote for a write-in candidate, other than
a write-in vote for governor and lieutenant governor,
shall be counted if the oval is filled in for that
candidate and if the name, as it appears on the write-
in declaration of candidacy, of the candidate or the
last name of the candidate is written in the space
provided.
SENATOR THOMAS, mentioning that the challenge which was raised
pertained to whether that language meant that the name of a
write-in candidate must be written exactly as it appears on the
candidate's declaration of candidacy, pointed out that the only
declaration of candidacy he has ever seen has been his own. [To
address what the court considered to be an ambiguity in statute
with regard to minor misspellings of write-in candidates' names,
and] in keeping with the court's determination in Miller, [the
bill - via Section 1's proposed new AS 15.15.360(d)(5) -
stipulates that in counting votes for a write-in candidate, if
the intention of the voter can be ascertained, the director of
the Division of Elections shall disregard any abbreviation,
misspelling, or other minor variation in the form of the name of
a candidate]. He offered his understanding that it is the
intent of the Division of Elections to also address [the
purported ambiguity] by providing [to voters] a list of the
names of write-in candidates; this, he ventured, would
substantially reduce the number of potential misspellings to
begin with, though it won't eliminate them altogether.
SENATOR THOMAS, in conclusion, posited that although [the bill]
won't prevent future legal challenges regarding write-in
candidates from being raised, it does clarify the law and
constitutes a move forward in the direction the courts have been
taking for over the last 50 years.
REPRESENTATIVE LYNN asked whether just providing the name of a
write-in candidate but not also filling in the oval on the
ballot would be sufficient to determine voter intent.
SENATOR THOMAS indicated that the Division of Elections could
better address that question.
1:55:41 PM
GRIER HOPKINS, Staff, Senator Joe Thomas, Alaska State
Legislature, on behalf of Senator Thomas, one of SB 31's joint
prime sponsors, explained that Section 1 - which would add a new
subsection (d)(1)-(5) to AS 15.15.360 - addresses the counting
of write-in votes and [subsequent] determinations by the
division director regarding voter intent. Specifically,
proposed new subsection (d)'s paragraphs (1)-(4) contain [along
with some clarifying editorial changes] the provisions of
existing AS 15.15.360(a)(9)-(12), which address write-in
candidates/votes and which would be repealed via SB 31's
Section 3, thereby leaving the remaining provisions of
AS 15.15.360(a) - those being paragraphs (1)-(8) - to address
the marking/counting of standard ballots. Section 2 of SB 31
provides for a proposed new AS 15.15.365, which would
statutorily address the issue of counting write-in votes in a
general election; the language in proposed AS 15.15.365(a)-(e)
mirrors the regulatory language in 6 AAC 25.085.
MR. HOPKINS explained that Section 2's proposed AS 15.15.365(a)
addresses the trigger for counting write-in ballots, adding his
understanding that the Division of Elections doesn't count
write-in ballots unless there is a legitimate [likelihood] that
those ballots could change the outcome of the election. [Under
both existing and proposed AS 15.15.360,] the oval must be
filled in [as specified in AS 15.15.360(a)(1) regardless of
whether a person is voting for a write-in candidate or a
candidate whose name is already on the ballot; this is] because
it's the filled in oval which registers with the voting machine
as a cast vote. He then offered his understanding that under
proposed AS 15.15.365(a)(1)-(2), in order for any write-in votes
to be counted, there must be more total votes cast for all
write-in candidates than for any other candidate, or the
difference between the total write-in votes cast and the number
of votes cast for the leading candidate must be less than
.5 percent. He mentioned that the remainder of Section 2,
proposed AS 15.15.365(b)-(e), addresses the time and place for
counting write-in ballots.
REPRESENTATIVE GRUENBERG [although HCS CSSB 31(STA) was already
properly before the committee] moved to adopt HCS CSSB 31(STA)
as the working document.
REPRESENTATIVE HOLMES objected for the purpose of discussion.
[Although the objection was never removed, the committee treated
HCS CSSB 31(STA) as having been adopted as the working
document.]
2:01:16 PM
MR. HOPKINS, in response to a question, indicated that due to a
change made in the bill's prior committee of referral, proposed
AS 15.15.365(c) and (e) together now stipulate, respectively,
that if the requirements of subsection (a) have been met, the
director of the Division of Elections shall establish the date
for counting the write-in votes, and the director - or his/her
designee - shall count all write-in ballots [under the rules
outlined in proposed AS 15.15.360(d)]; and that those write-in
ballots shall be counted - by the director or his/her designee -
in a public place at the location where write-in ballots are
sent to be counted after an election. This change is intended
to provide for a more secure ballot-transfer process; proposed
AS 15.15.365(e) would eliminate the need for those ballots to be
transferred again, thereby mitigating the risk of damage, loss,
or tampering. Currently, after all the voting precincts across
the state tally their results, all of the ballots are sealed and
shipped to the director's office in Juneau.
REPRESENTATIVE GRUENBERG offered his understanding that
Section 2's proposed AS 15.15.365 could apply to any "write-in
election."
MR. HOPKINS concurred.
REPRESENTATIVE GRUENBERG questioned whether, in situations
involving a local election, the language of proposed
AS 15.15.365(e) would provide the division with the flexibility
to ship the write-in ballots back to that local precinct for
counting.
MR. HOPKINS indicated that such could occur after the timeframe
currently provided for absentee ballots to arrive at the
director's office in Juneau. In response to a question, he
offered his understanding that ballots arriving after the
deadline are only counted if a recount is authorized. In
response to further questions and comments, he concurred that
[under both existing and proposed AS 15.15.360,] writing in the
name of a candidate whose name is already printed on the ballot
would not invalidate that write-in vote unless it is determined
that the ballot was so marked for the purpose of identifying it
later on; and reiterated that [under both existing and proposed
AS 15.15.360,] the oval must be filled in as specified in
AS 15.15.360(a)(1) [regardless of whether a person is voting for
a write-in candidate or a candidate whose name is already on the
ballot, because it's the filled in oval which registers with the
voting machine as a cast vote,] and that before any write-in
votes are counted, the criteria outlined in proposed
AS 15.15.365(a)(1)-(2) must be met. He added that in Miller,
the court upheld the statute requiring the oval to be filled in.
2:14:36 PM
MR. HOPKINS mentioned that page 21 of the aforementioned 2010
General Election Review contains a specific reference to SB 31,
and that when crafting the latest version of the bill, Senator
Thomas worked closely with the Division of Elections. In
response to a question, he concurred that SB 31 would codify the
court's ruling in Miller regarding voter intent; relayed that
all the courts which got involved in that case are urging that
the existing statutes pertaining to write-in votes be clarified;
and mentioned that members' packets include a handout containing
quotes from those various courts. In response to a question
regarding how voter intent would be ascertained by the director
under proposed AS 15.15.360(d)(5), he offered his understanding
of the process used by the Division of Elections when the write-
in votes for Alaska's 2010 U.S. Senate race were counted, and
indicated that ultimately, if a race's write-in ballot results
are challenged, it would be the court that would determine the
correctness of the director's decisions regarding voter intent.
2:23:26 PM
GAIL FENUMIAI, Director, Central Office, Division of Elections,
Office of the Lieutenant Governor, in response to further
questions, provided more details regarding the process used by
the division when it counted the write-in ballots for Alaska's
2010 U.S. Senate race.
MR. HOPKINS reiterated that in Miller, the challenge raised was
whether the language of [existing AS 15.15.360(a)(11)] means
that the name of a write-in candidate has to be written exactly
as it appears on the candidate's declaration of candidacy; the
court ruled that it did not, surmising that if the legislature
had intended differently, it would not have used the word,
"appears" in [existing paragraph (11)]. Senate Bill 31 is
intended to rectify this purported ambiguity in existing
statute, but won't preclude someone from challenging the results
of a write-in election. He mentioned that no state requires the
exact spelling of a write-in candidate's name, and ventured that
to do so, even in part, would raise a number of implementation
issues.
MS. FENUMIAI, in response to comments and questions, said that
the law is very clear that the oval must be filled in, and that
the court has agreed with the division's interpretation of that
law.
MR. HOPKINS mentioned that AS 15.15.360(a)(1) says:
(1) A voter may mark a ballot only by filling in,
making "X" marks, diagonal, horizontal, or vertical
marks, solid marks, stars, circles, asterisks, checks,
or plus signs that are clearly spaced in the oval
opposite the name of the candidate, proposition, or
question that the voter desires to designate.
2:35:16 PM
REPRESENTATIVE THOMPSON moved to report HCS CSSB 31(STA) out of
committee with individual recommendations and the accompanying
fiscal notes. There being no objection, HCS CSSB 31(STA) was
reported from the House Judiciary Standing Committee.
| Document Name | Date/Time | Subjects |
|---|