Legislature(2019 - 2020)GRUENBERG 120
02/25/2020 03:00 PM House STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB239 | |
| HB190 | |
| SB80 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | HB 239 | TELECONFERENCED | |
| *+ | HB 190 | TELECONFERENCED | |
| + | SB 80 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 80-INITIATIVE SEVERABILITY
4:21:17 PM
CO-CHAIR KREISS-TOMKINS announced that the final order of
business would be SENATE BILL NO. 80 am, "An Act relating to
proposing and enacting laws by initiative; and prohibiting the
state and its agencies and corporations from spending funds to
influence the outcome of certain ballot propositions and
questions."
4:21:47 PM
SENATOR JOSH REVAK, Alaska State Legislature, presented SB 80 by
paraphrasing from his written statement, which read:
• Good Afternoon, Mr. Chair and members of the House
State Affairs Committee, thank you for hearing SB 80.
For the record, Sen. Josh Revak, District M in South
Anchorage.
• SB 80 seeks to protect the integrity of the ballot
initiative process by ensuring ballot initiative
language that appears before voters at the ballot box
is the same as the language circulated during the
signature-gathering phase and to restore the
legislaturs important role in the initiative
process.
• Alaska's constitution details a very important right
of our residents - the right to enact legislation
through the voter initiative process. The legislature
also has the right to enact legislation substantially
the same as the proposed initiative thus removing it
from the ballot.
• Per our constitution, some issues are off-limits for
ballot initiatives and initiatives can only cover one
subject. But while a cursory legal review of language
occurs before the Lieutenant Governor's certification,
it has sometimes been the case that further review
finds constitutional concerns with proposed language.
In those cases, a party can file a lawsuit to force
the issue through the court system. This can happen
simultaneous to the circulation of signature booklets.
• Under current law, if a court determines that language
in a proposed initiative is unconstitutional and/or
severed, an amended version of the language can appear
before voters. This results in voters seeing a
different initiative than the one they supported with
their signature. Furthermore, if the courts
revise/sever the language after the legislative review
process, they deny the legislature its right to review
the initiative as revised. The net effect of a courts
severance is that an initiative can move forward to
the voters that is substantially different than the
initial version reviewed by the legislature.
• SB 80 restores a "check" in the checks and balances
the constitutional framers envisioned for the
initiative process. Voters should be assured that
language on the ballot has not changed from the
language in the petition booklets supported with voter
signatures and further, it restores the legislature's
right to review and enact substantially similar
legislation to stop an initiative from moving forward.
• SB 80, amended on the Senate floor, affirms that a
state entity may not be used to influence an election
concerning an initiative, referendum, constitutional
amendment, constitutional convention, or recall,
unless the money was specifically appropriated for
that purpose. However, exceptions apply to usual and
customary legislative activity.
• Mr. Chair, again thank you for the opportunity to
present SB 80 and I would appreciate the committees
support.
4:25:43 PM
CO-CHAIR FIELDS asked for the number of initiatives in the
state's history that have been severed versus the number that
have not.
4:26:02 PM
KIM SKIPPER, Staff, Senator Josh Revak, Alaska State
Legislature, indicated that there have been two initiatives
severed.
CO-CHAIR FIELDS asked Ms. Skipper to identify the two
initiatives and describe the differences in language.
MS. SKIPPER stated that the most recent initiative was Ballot
Measure 1 [the Salmon Habitat Protections and Permits
Initiative, 2018]. She offered to provide the committee with
information on any other severed initiatives.
CO-CHAIR FIELDS asked for the substantive difference regarding
Ballot Measure 1.
MS. SKIPPER offered to provide that information.
CO-CHAIR KREISS-TOMKINS asked Ms. Skipper to identify the second
initiative that was severed.
MS. SKIPPER agreed to provide that information.
CO-CHAIR FIELDS asked, "Was the main policy debate ... around
this issue - of whether we can have non-severability of
initiatives - with severability of legislative bills, and
whether that's a constitutional problem?"
MS. SKIPPER answered that there are issues surrounding the
potential unconstitutionality of SB 80; however, the proposed
legislation also addresses that the constitution provides the
legislature the right to review [the initiative] and provides
the public the right to sign a petition based on ballot language
- not of a concept but of an actual bill. She maintained that
when a court severs that initiative, the public is faced with
something different than what they signed. She said that there
is a pending advisory opinion on the constitutionality of [SB
80] based on elimination of the severability clause but added
that there is a vetting process in the legislature that does not
occur with the public.
4:29:09 PM
CO-CHAIR KREISS-TOMKINS asked for the chronology of events
surrounding Ballot Measure 1 and stated his understanding that
it consisted of: the initiative qualifying for the ballot;
litigation; the Alaska Supreme Court ruling that some provisions
of the initiative were unconstitutional; and the court amending
the substance of the initiative. He stated that if a component
of a bill is found unconstitutional, it is severed and
eliminated as opposed to changed. He asked for comment on that
distinction, on the court's role, and what severability means in
the context of initiatives.
SENATOR REVAK mentioned that a legal opinion may be warranted;
however, supporters of the bill believe that what happened with
the initiative for Ballot Measure 1 "opened the door for a bait-
and-switch" type of policy surrounding initiatives. He offered
that putting enticing language in a ballot initiative - maybe
even unconstitutional language - to get the public to sign it,
knowing that it would be struck down [by the court]
simultaneously while the legislature is reviewing it, would a)
take away from the legislature's ability to review the final
language on a ballot initiative, and b) result in substantially
different language [than signed on to in the initiative
process]. He maintained that the concern is that people will
use [the initiative process] as a tool against the legislature
and the voters, and the proposed legislation attempts to address
that concern.
CO-CHAIR KREISS-TOMKINS asked for more information on the
distinction between severing or eliminating a provision of an
initiative versus modifying through the court review process.
REPRESENTATIVE HOPKINS referred to page 2, line 5, of SB 80,
which read, "An initiative petition may not contain a
severability clause." He asked whether currently a ballot
initiative has a severability clause and how the clause reads.
MS. SKIPPER responded that the severability clause tries to
mimic what the legislature allows in its [bill-making] process;
if a bill passes and the court deems part of the bill
unconstitutional, then the court can strip that part of the bill
and leave the remainder of the bill to become law. She said
that the ballot initiative process allows for that same process.
The concern is that when the court severs [an initiative] so
that it changes dramatically from what the public saw at the
onset of the petition process, the change is on the ballot and
the legislature cannot rereview the initiative, because the
legislature's review process is over and the court has made the
change prior to the election cycle.
CO-CHAIR KREISS-TOMKINS commented that from his experience with
legislative review of initiatives, the substantial similarity
between legislation passed by the legislature that might preempt
a ballot initiative is extremely liberally construed.
REPRESENTATIVE VANCE asked for the number of states that allow
for a citizens' initiative like Alaska's.
SENATOR REVAK offered to provide that information to the
committee.
REPRESENTATIVE STORY acknowledged that the citizens' initiative
is important to Alaskans. She expressed her belief that
citizens are adequately informed of changes to the initiatives.
She asked whether the thinking behind the proposed legislation
is that the ballot measure would be so different from what is on
the petition that citizens would not be informed about the
changes.
SENATOR REVAK answered yes. He maintained that in recent
history, the ballot measure was substantially different. He
stated that there are several issues involved - legislative
review and a bait-and-switch policy in which the public does not
know the substantial change in the initiative. He offered his
hope that through SB 80, people who draft ballot initiatives
would be more vigilant regarding the initiative language; it's
good for the public, for the legislature, and for the civic
process.
4:35:58 PM
CO-CHAIR KREISS-TOMKINS asked for information on which of the
states allowing a constitutional ballot initiative process
prohibit severability clauses versus allow them.
CO-CHAIR FIELDS asked whether any of the states among those
identified have analogous language saying that every initiative
appearing on the ballot that is altered by the court must be
substantially like what voters originally signed. He asked
whether in the Senate there was discussion about "severability"
versus "substantially similar."
MS. SKIPPER replied that issue did not come up in the Senate.
The discussions in the Senate revolved around the legislative
review process, restoring the rights of the legislature,
bringing integrity back to the process, and making sure the
public sees the ballot initiative as originally intended.
[SB 80 was held over.]