Legislature(2009 - 2010)BELTZ 105 (TSBldg)
02/02/2010 09:00 AM Senate STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SJR21 | |
| SB92 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | SJR 21 | TELECONFERENCED | |
| *+ | SB 92 | TELECONFERENCED | |
SB 92-U.S. PRESIDENTIAL ELECTION COMPACT
9:46:36 AM
CHAIR MENARD called the State Affairs Committee meeting back to
order at 9:46 and said the next order of business to come before
the committee was SB 92.
QUINN KENDALL, aide to Senator Davis, sponsor of SB 92, said
that under the National Popular Vote Interstate Compact,
electoral votes, which are based on the number of US
representatives and US senators in each state, would be awarded
to the national winner, not the state winner. He said the US
Constitution gives each state exclusive control over awarding
their electoral votes; the winner-take-all rule is not in the
Constitution. He pointed out that the states of Maine and
Nebraska award electoral votes by congressional district. As of
January 2010, Hawaii, Illinois, Maryland, New Jersey and
Washington joined this interstate compact; their 61 electoral
votes make up 23 percent of the 270 electoral votes needed for
the compact to take effect.
9:49:13 AM
MR. KENDALL said the compact has also passed in the House and/or
Senate in other states and has continued to gain national
support. He explained that the current winner-take-all rule
allows a candidate to win the presidency without winning the
most popular votes nationwide. This has occurred in 4 of 56 US
presidential elections and 1 in 7 of the non-landslide
elections. He pointed out that a shift of fewer than 60,000
votes in Ohio would have defeated President Bush despite his
nationwide lead of 3.5 million votes in 2004. With the winner-
take-all rule, presidential candidates have no reason to poll,
visit, advertise or organize in states where they are far ahead
or behind. He explained that candidates concentrated over 66
percent of their campaign visits and ad money in just 6
battleground states in 2008; 98 percent went to 15 states. He
said voters in two-thirds of the states were essentially
spectators to the election.
MR. KENDALL reported that under the National Popular Vote
Interstate Compact, all electoral votes from participating
states would be awarded to the presidential candidate who
received the most popular votes in all 50 states and Washington
D.C. The Interstate Compact becomes effective when enough states
join that their collective electoral votes add up to a majority,
that is, enough electoral votes to elect a president.
9:51:07 AM
MR. KENDALL said the National Popular Vote Interstate Compact
will increase political efficacy and civic engagement.
TOM OBERMEYER, aide to Senator Davis, said that the Electoral
College would remain intact under the proposed interstate
compact, which is a constitutionally authorized method for
states to address problems. With this compact, the Electoral
College would change from an institution reflecting voters'
state-by-state choices or, in the case of Maine and Nebraska,
district-wide choices, into a body reflecting voters' nationwide
choice. He explained that the proposed compact would require
each member state to award its electoral votes to the
presidential candidate who received the largest number of
popular votes in all 50 states and the District of Columbia. The
interstate compact becomes effective only when it encompasses
states collectively possessing a majority of the electoral
votes. In this manner, the presidential candidate receiving the
most popular votes in all 50 states and the District of Columbia
would be guaranteed enough electoral votes to be elected to the
presidency.
SENATOR PASKVAN asked if the ideal is that each vote count, why
not just count each vote and dispense with Electoral College
completely.
MR. OBERMEYER replied that changing the Electoral College would
be more difficult than implementing an interstate compact. The
Founding Fathers set up the Electoral College in part because
many people were not informed as to who should represent them
and did not know their legislators. The Founding Fathers
determined that locally-known people could carry a vote forward
for the election of the president.
9:54:26 AM
MR. OBERMEYER suggested that changing the Electoral College
itself might not be possible and this national popular vote bill
requires states to agree to "presumably, 888 words in a
compact."
SENATOR PASKVAN said he is concerned that Alaska would be
"contracting away" an essential right by forming a contract with
other states. Perhaps a system of counting each vote on a
nationwide basis would be better and preserve the Constitution,
as well.
MR. OBERMEYER replied that counting each vote might be a good
solution, but it may not have seemed possible to people who
designed the interstate compact.
SENATOR FRENCH said he supports SB 92 and that the person with
the most votes should win. He recognized concerns about SB 92
but supported the idea as basic democracy.
9:57:02 AM
PAT ROSENSTIEL, National Popular Vote, said SB 92 guarantees
that the candidate who gets the most votes in all 50 states wins
the presidency and that a vote in Ketchikan, Alaska, counts as
much as a vote in Clearwater, Florida. SB 92 solves the problem
of relegating two-thirds of the country to flyover status
because of winner-take-all statutes which are not a
constitutional principal.
MR. ROSENSTIEL offered a different answer to Senator Paskvan's
earlier question about pursuing a constitutional amendment. He
explained that Alaska has the right to allocate its electors in
its best interest and a constitutional amendment would strip
future legislators of their power to do that. However, the
interstate compact preserves the right of future legislatures to
withdraw from it if there is an unintended consequence or a
better choice for Alaska later. States have switched how they
allocate their electors throughout history, he said, and he also
felt that an interstate compact would be the appropriate method
to change Alaska's way of allocating electors.
10:00:30 AM
SENATOR PASKVAN asked if the original intent of the Founding
Fathers was or was not a winner-take-all system. He said if the
goal is to establish a winner-take-all system, which is
different from the original intent, why not go to a winner-take-
all national vote.
MR. ROSENSTIEL said he and Senator Paskvan might have a
different understanding of winner-take-all. He explained that
winner-take-all statutes currently dictate that a candidate who
wins the popular vote in Alaska gets all three of Alaska's
electoral votes. He explained that this compact is enacted when
more than 270 electoral votes are in it. Those electoral votes
are all awarded to the candidate who wins the most votes in all
50 states. He said he opposes abolishing the Electoral College
because those electors give Alaska influence in presidential
elections. The Founding Fathers intended for states to provide a
check on the federal magistrate with their electoral votes, and
Alaska can allocate its three electors in any way, including by
joining this compact.
10:03:30 AM
SENATOR PASKVAN questioned whether or not winner-take-all was
the original intent of the US constitution.
MR. ROSENSTIEL replied that no, the original intent of the
Founding Fathers was not a winner-take-all statute by state, but
rather to give each state electoral votes based on their
representation to allocate in any way. He said that in the first
presidential election, three states operated on a winner-take-
all statute of white property owners; the other ten states had
other systems. The Founding Fathers intended for Alaska to
determine how to exercise its influence through its electors in
Presidential elections and this compact is consistent with that
constitutional principle.
SENATOR PASKVAN said he is troubled by the capacity to sell, as
a commodity, our electoral votes, and thereby the election of a
president. He asked about the consequences of breaching the
compact if, for example, the state had a Governor, a House and a
Senate that wanted to breach the compact and oppose the national
vote.
10:06:23 AM
MR. ROSENTIEL replied that the compact has an enforceability
clause.
10:07:12 AM
Short at ease
10:07:21 AM
CHAIR MENARD called the meeting back to order at 10:07.
MR. ROSENSTIEL referred to clause 2 of Article 4 of the National
Popular Vote compact as follows:
Any member state may withdraw from this agreement,
except that a withdrawal occurring six months or less
before the end of a President's term shall not become
effective until a President or Vice President shall
have been qualified to serve the next term.
He said if Alaska wanted to pull out of the compact because the
vote didn't go the way they wanted it to, that withdrawal cannot
become effective between July 20th of a presidential election
cycle and the inauguration on January 20th of the following
year. A state cannot withdraw from a compact without running
counter to the US Constitution's Impairment clause, Safe Harbor
clause and possibly 200 years of case law that supports the
enforceability of interstate compacts. He reported that no
interstate compact in US history has ever been withdrawn from
without adhering to the clauses within that compact.
LARRY SOKOL, The National Popular Vote, said the enforceability
stems from Article 1 Section 10 of the Constitution, known as
the Impairments Clause, which says no state shall pass any laws
impairing the obligation of contracts. For over 200 years, the
Supreme Court has upheld interstate compacts as contracts that
are enforceable. He said no state has ever successfully
challenged the ability to withdraw from a compact outside the
stated withdrawal provisions contained in that compact.
10:11:24 AM
SENATOR PASKVAN asked if enforcement had ever been applied to
the contractual delegation of authority dealing with Electoral
College votes. He said this is not a matter of commerce but of
the delegation of a constitutional authority to transfer
Electoral College votes, and he is not aware of any case ever
dealing with this subject in the nation's 230-year history.
MR. SOKOL said to his knowledge Senator Paskvan is correct that
there has never been a proposed interstate compact dealing with
allocation of electoral votes; however the Contract and
Impairment clause of the Constitution has successfully governed
all interstate compacts, not just those dealing with commerce.
He noted that one of the country's foremost legal authorities on
interstate compacts, Professor Joseph Zimmerman of New York, was
integral in drafting this compact and wrote a book that contains
all the assorted legal precedents and cases.
10:14:02 AM
SENATOR PASKVAN asked Mr. Sokol if the most efficient way to
make sure each vote counts is to eliminate the Electoral
College.
MR. SOKOL said he viewed the process of states deciding how to
use their electoral votes as the appropriate and historically
consistent method. Past changes, such as extending the right to
vote for president to the people or eliminating property
ownership requirements to be able to vote, have come about
through states acting on their own and not through a
constitutional amendment. He said that National Popular Vote
believes state action, using state rights and the 5th Amendment,
is the historically consistent way that the Founding Fathers
intended these changes be made.
10:16:07 AM
SENATOR PASKVAN asked why he wants to change anything if the
original intent of the US Constitution was the advancement of an
Electoral College system. If the goal is to change the
Constitution so each vote counts, why not just change the
Constitution?
MR. SOKOL replied that the Founding Fathers intended for states
to determine how they can best allocate their electoral votes.
In National Popular Vote's proposal, states agree through an
interstate compact, that the candidate who receives the most
popular votes in all 50 states should receive the electoral
votes of each individual state that signed onto the compact. He
said he could not say that the Founding Fathers' intention was
to have a national popular vote, but their intention clearly was
for each individual state to determine how to allocate its
electoral votes.
10:17:47 AM
SENATOR FRENCH said Article 2, Section 1 of the Constitution
says: "each state shall appoint in such manner as the
legislature there of may direct, a number of electors…" It is
complex, but it is clear that it is within the province of the
legislature to determine.
SENATOR MEYER said the Electoral College needs to be abolished
and a national popular vote system is needed if every vote is to
truly count. He mentioned that even if Alaska joined the
compact, it would still be a flyover state; candidates would
still focus on major population centers.
10:19:31 AM
CHAIR MENARD said she would be interested in Professor
Zimmerman's expertise.
MR. ROSENSTIEL clarified that Senator Meyer's question was about
candidates ignoring Alaska during elections due to its location
and small population.
SENATOR MEYER agreed and pointed out another frustration in
Alaska is that a winner is often declared before many Alaskans
have voted. He would like to make sure all votes count and that
Alaskans realize how important each vote is.
MR. ROSENSTIEL said that the compact is intended to make sure
that the candidate who wins the most votes in all 50 states
wins, and that a vote in every state counts equally. When an
Alaskan writes a check to a political party in the presidential
campaign, all the money is spent in 6 or 15 battleground states.
The compact rectifies Alaska's exportation of this political
economy every four years.
10:22:49 AM
MR. ROSENSTIEL said the interstate compact will keep resources
in Alaska because the votes in Alaska will count toward the
national total. He pointed out that the 1960 presidential race
came down to 110,000 votes; with the system proposed in the
interstate compact, all eyes would have been on Alaska and
Hawaii, the last polls to close. He suggested Hawaii entered the
compact because a winner would not be declared hours before
their polls close. Alaskans feel their votes are undervalued and
a poll showed that 70 percent think this proposal is a good
idea.
10:25:03 AM
CHAIR MENARD opened public testimony.
SENATOR FRENCH commented that this is a big-picture bill that
triggers thought about democracy.
SENATOR PASKVAN said he is troubled by not changing to a system
in which each vote counts and the president is elected by a
majority across all 50 states. He was troubled by the
legislative branch of each state being given the ability to
direct the state's Electoral College. He worried that Alaska
under this language would be delegating its electoral votes to
another state's population. He said he can foresee a state being
rewarded by breeching the compact in some circumstances and
creating litigation.
10:27:30 AM
SENATOR Meyer moved to report SB 92 from committee with
individual recommendations and attached fiscal note(s). There
being no objection, the motion carried.
10:28:16 AM
Finding no further business to come before the committee, Chair
Menard adjourned the meeting at 10:28 a.m.
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