Legislature(2017 - 2018)BUTROVICH 205
03/22/2018 03:30 PM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| Confirmation Hearing(s): Lieutenant Governor Successor, Board of Fisheries | |
| SB186 | |
| HB31 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | HB 31 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | SB 186 | TELECONFERENCED | |
SB 186-VOTER REGISTRATION & PFD APP REGISTRATION
4:09:04 PM
CHAIR MEYER announced the consideration of SB 186. He noted that
the committee last heard SB 186 on March 8 and there were
numerous questions posed by committee members that the Division
of Elections has returned to address.
4:10:11 PM
JOSIE BAHNKE, Director, Alaska Division of Elections, Office of
the Lieutenant Governor, Juneau, Alaska, announced that the
division had an amendment to offer for SB 186.
CHAIR MEYER noted that there were two amendments for the bill,
one from the Division of Elections and another from Senator
Coghill. He asked that Senator Coghill move his amendment.
4:11:15 PM
SENATOR COGHILL moved Amendment 1, [30-GS2097\A.1]:
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR COGHILL
TO: SB 186
Page 1, following line 2:
Insert a new bill section to read:
"* Section 1. AS 15.07.050(a) is amended to read:
(a) Registration may be made
(1) in person before a registration
official or through a voter registration agency;
(2) by another individual on behalf of the
voter if the voter has executed a written general
power of attorney or a written special power of
attorney authorizing that other individual to register
the voter;
(3) by mail;
(4) by facsimile transmission, scanning, or
another method of electronic transmission that the
director approves; or
(5) by requesting to be registered as a
voter on [COMPLETING] a permanent fund dividend
application form under AS 43.23.015."
Page 1, line 3:
Delete "Section 1"
Insert "Sec. 2"
Renumber the following bill sections accordingly.
Page 1, line 6:
Delete "completing"
Insert "requesting registration on [COMPLETING]"
Delete "with"
Insert "form and including"
Page 1, line 7:
Delete "included"
Page 2, line 1:
Delete "submit a"
Insert "request to be registered on a"
Following "application":
Insert "form submitted"
Page 2, line 4:
Delete "declines to"
Insert "who requests to be registered does not"
Page 2, line 5:
Delete "[AN"
Insert "[SUBMIT AN"
Page 2, line 11, following "notify":
Insert ","
Page 2, line 12, following "applicant":
Insert "who requested registration of the
applicant's registration status"
Page 2, lines 13 - 14:
Delete "of the applicant's registration status"
Page 2, lines 25 - 26:
Delete "[IF AN APPLICANT DOES NOT DECLINE TO BE
REGISTERED AS A VOTER WITHIN"
Insert "If an applicant requests [DOES NOT
DECLINE] to be registered as a voter, the [WITHIN"
Page 2, line 28:
Delete "FORM.] The"
Insert "[FORM. THE]"
Page 3, following line 1:
Insert a new bill section to read:
"* Sec. 6. AS 43.23.015(b) is amended to read:
(b) The department shall prescribe and furnish
an application form for claiming a permanent fund
dividend. The application must include
(1) notice of the penalties provided for
under AS 43.23.035;
(2) a statement of eligibility and a
certification of residency;
(3) the means for an applicant eligible to
vote under AS 15.05, or a person authorized to act on
behalf of the applicant, to request that the applicant
be registered as a voter, to furnish information
required by AS 15.07.060(a)(1) - (4) and (7) - (9),
and to attest [AN ATTESTATION] that the [SUCH]
information is true."
Renumber the following bill sections accordingly.
Page 3, lines 3 - 5:
Delete "Except for a permanent fund dividend
application where the applicant declines to provide
the information required under AS 15.07.060(a)(1) -
(4) and (7) - (9), the [THE] "
Insert "The"
Page 3, line 11, following "who":
Insert "requested to be registered to vote and"
Page 3, line 19:
Delete "secs. 1 - 5"
Insert "secs. 1 - 7"
Page 3, line 27:
Delete "Sections 1 - 5"
Insert "Sections 1 - 7"
Page 3, line 28:
Delete "sec. 8"
Insert "sec. 10"
4:11:27 PM
CHAIR MEYER objected for discussion purposes.
SENATOR COGHILL said he does not entirely agree with an earlier
statement by the director that the form would be better off to
have someone opt-in. He pointed out that the ballot measure
meant to register people to vote during the process of applying
for their Permanent Fund dividend (PFD). He noted that page 1 in
the initiative gives six reasons for the intent of the
initiative and specified that the fourth reason says:
In the intent that the permanent fund dividend
applicants who wish to register to vote or update
their voter registration must submit information to
the state the second time using a different form.
He commented on the initiative's language as follows:
It starts off with the kind of permission and I think
that's a big deal to me, but it says it can relieve
the voters of a burden by having them complete that on
a permanent fund dividend application; I think that's
okay and I think that the opt-in/opt-out is two very
different ways of looking at it and here's how I see
the difference. The way that it was written is you
would be automatically registered unless you opted out
and the division is asking for.
4:13:53 PM
At ease.
4:14:59 PM
CHAIR MEYER called the committee back to order.
SENATOR COGHILL continued as follows:
There were two things that I was going to refer to,
the ballot measure itself and the intent. The intent,
as people read it, was to relieve qualified voters who
apply for a PFD from the burden of having to complete
additional paperwork. I think an opt-in still does
that and so it's well within the reason of our
initiative.
I was going to read the constitution to you on that
particular issue because we have court cases, I get
that, but we also have a constitution and I'm willing
to challenge it, it says in Article XI, section 6,
about halfway down, it says, "It's not subject to veto
and may not be repealed by the Legislature within two
years of the effective date, it may be amended at any
time;" very explicit language in the constitution,
very clear, very plain, it may not be repealed, but it
may be amended and I see this as an amendment, you can
look at their answer, they see this as a "more than
that," it would probably go to court and I have a
legal opinion that says we think that it might and we
think that it might not, so that's an open question.
If you look at the initiative language the opt-out
doesn't even come until page 3, and it's at the top of
page 3 and subsection 3, "If applicant does not
decline to be registered and failure to respond to the
notification on subsection (b)." So, for those who see
the intent have to dig pretty deep to get to that.
4:17:05 PM
He continued as follows:
Now, it is true that in the ballot measure language
they combine two things in the last sentence, "New
voters will receive a notification in the mail to
either declare a political affiliation or opt out of
the voter registration process." So, it does say that
after two pretty good significant paragraphs, but it
also says for a small change our state can reap huge
benefits and these benefits are three:
1. Make government more efficient and save
taxpayer dollars.
2. Voter databases become more accurate and
secure.
3. Every eligible voter gets an equal opportunity
to have their voice heard in our democracy.
That's what people are going to pay attention to, so I
think it is well within our reason. So, the courts
have several different tests that they are going to go
through, I get that. I just wanted to make the case
that the burden should, the burden of the willingness
to vote, still belongs to the voters. There should not
be a presumption on a government that they are
registered to vote, there should be a presumption that
the individual chooses to vote.
The next thing we are going to talk about is sending
notices back and forth, all you have to do is say, "I
want to register to vote," just like you do on your
car registration, it's just a simple, "I want to
register to vote;" this way you have to actually get
information back and they are trying to change that to
say, "I want to opt out," it's an awkward way of doing
it.
So, to me the burden if you will or the least
restrictive means to the individual would be to just
opt-in. The least restrictive to the government is
you've got to opt-out. I just error on the side or I
fall on the side of having the least restrictive means
to the individual, that's just me, so that's my
argument.
4:19:13 PM
CHAIR MEYER asked if he had a legal opinion.
SENATOR COGHILL replied that his legal opinion said, "We think
it may and we think it may not." He opined that his amendment
may not be a problem.
SENATOR GIESSEL asked Senator Coghill to explain Amendment 1.
SENATOR COGHILL summarized that the amendment changes the opt-
out in the bill to an opt-in. He conceded that the amendment
might be litigated but emphasized that an individual should have
the right to say, "I want to vote," instead of saying, "I'm
already registered, I don't want to be registered." He opined
that his amendment is a better civics concept where the burden
is placed on the voter to register rather than a presumption
that goes to the state.
4:24:29 PM
LIBBY BAKALAR, Assistant Attorney General, Alaska Department of
Law, Juneau, Alaska, addressed Amendment 1 as follows:
I have reviewed the memo from legislative counsel and
I agree with it overall. The germane sentence in Mr.
Bullard's memo is that, "There exists a possibility
that requiring an applicant to opt-in could be
interpreted by a court as so significant a change to
the initiated law that it functions as a repeal of
15PFVR," which is the ballot initiative that was
enacted in the 2016 general election. In my view, that
outcome is more likely than not because the core
intent behind the initiative was to create an
automatic voter registration process, the opt-out
provisions are sort of the heart of that process and I
think that the Supreme Court would more likely than
not reach the conclusion that this type of amendment
prior to March of 2019 would constitute an
unconstitutional repeal of the bill.
So, Mr. Bullard has correctly identified the core
legal issue. I think that yes, he is saying "maybe,
maybe not." I think more "maybe yes" based on what I'm
reading and specifically in section 5 of the
initiative what I understood the sponsors' intent to
be. My understanding from working with the sponsors'
post enactment that this is really all about the opt-
out process and with respect to Senator Coghill's
concerns about where the burden falls on the state
versus the government, this is something that the
people enacted, the people voted for it. So, we have
no choice really but to assume this is what the people
want is to have this automatic opt-out process. Now, I
think were Senator Coghill's amendment to be adopted I
think the amendment is sufficiently deviant from the
core of the intent of the initiative that a court, if
this were litigated, would more likely than not find
this to be affectively a repeal of the measure, that's
my legal opinion.
4:26:58 PM
SENATOR COGHILL responded to Ms. Bakalar's response
We had this conversation and as you can see from the
legal opinion a lot of it is what-if language, it's
not very emphatic and so I get that and I don't see it
going to the heart of it because the heart of it was
to make it easier for people to register; in fact, if
you go back and listen to all of the advertisements
that happened, it was really centered on, it makes it
easy for you to register to vote and it should be on
the your PFD and then to simply say, "Okay, I want to
register on the PFD," seems cleaner, clearer, and less
expensive. So, I don't think it goes outside of the
realm of either the ballot measure language or the
actual legislative intent in the language of the
thing. So, it does change some of it, but I think our
constitutional duty is very, very clear, that we may
amend it at any time. I think this is a proper
amendment, it does speak to a court issue, but it
doesn't change, I think, the core of the expectation
of the initiative. So, that's just my argument, we
just fundamentally disagree on this, it's a reasonable
argument both ways, but that's where I fall.
4:28:19 PM
CHAIR MEYER asked Ms. Bakalar to verify that the initiative
cannot be amended for two years.
MS. BAKALAR specified as follows:
You may amend it at any time, you may not repeal it
before two years, but what the case law says is that
some amendments are so significant that they
"vitiate," is the word that the Supreme Court uses, so
vitiate the initiative as to constitute effectively a
repeal of the initiative.
CHAIR MEYER asked if she believes that the amendment effectively
repeals the initiative.
MS. BAKALAR replied yes.
SENATOR COGHILL responded as follows:
I think that it falls right square in the intent and
this idea of using a permanent fund dividend as a
place to apply for a voter registration, that was the
core intent, and this makes it so easy all you have to
do is say, "Yes, I want to register to vote." So, that
is the difference of opinion we have.
4:29:15 PM
CHAIR MEYER agreed with legal counsel and maintained his
objection. He asked for a roll call vote.
A roll call vote was taken. Senators Wilson, Giessel, Egan, and
Coghill voted in favor of Amendment 1 and Chair Meyer voted
against it. Therefore, Amendment 1 passed by a 4:1 vote.
4:30:34 PM
CHAIR MEYER asked Director Bahnke to proceed with Amendment 2.
4:30:56 PM
SENATOR GIESSEL moved Amendment 2. She noted that the amendment
does not have a legal drafting number and simply states on the
top of the document: AM - to SB 186, 03/07/2018.
AMENDMENT 2
OFFERED IN THE SENATE
TO: SB 186
Page 2, line 2, following "treat":
Delete "an eligible"
Insert "a"
Page 2, line 3, following "applicant":
Insert "under AS 43.23.016"
Page 2, line 9:
Delete "Upon"
Insert "The director shall establish procedures
to allow a permanent fund dividend applicant under AS
43.23.015 to decline voter registration under AS
43.23.016 when applying for a permanent fund dividend
under AS 43.23.015. The procedures may include a form
prescribed by the director. For a permanent fund
dividend applicant that does not decline voter
registration through the permanent fund dividend
application, upon[UPON]"
Page 2, lines 12 - 13:
Delete "[NOT ALREADY REGISTERED TO VOTE]"
Insert "not already registered to vote"
Page 3, line 5, following "(9)":
Insert "under the procedures developed by the
director of the division of elections under AS
15.07.070(k)"
4:31:20 PM
CHAIR MEYER objected for discussion purposes.
MS. BAHNKE explained Amendment 2 as follows:
Page 2, line 2:
Delete "an eligible;" this is to provide an area of
clarity and to streamline the voter registration
process with regards to eligibility of a PFD applicant
and a registered voter; this was needed because we
don't know if one is eligible at the time they come in
the door to apply for a PFD, so we saw as a necessary
change to clarify that.
Page 2, line 3:
Following "applicant" we inserted reference to a PFD
statute and that was for conformity by adding
reference to AS 43.23.016.
Page 2, line 9:
Delete "Upon" then insert how the opt-out process will
work in practice and sets opt-out standards for the
director and allows the director to come up with
procedures.
Page 2, lines 12-13:
We added this back in, it was originally deleted, but
we added it back in, "not already registered to vote,"
because the division will want to provide newly
registered voters a voter card, so it eliminated the
necessity of a mailer but we want to add back in "not
already registered to vote" because we still will want
to mail them a new voter card.
Page 3, line 5:
Allows the division director to adopt regulations.
4:33:23 PM
SENATOR COGHILL commented as follows:
Because of the opt-in/opt-out debate, certainly the
lines 8-14 are not going to work in this bill. So,
what is necessary in this particular amendment for you
to manage, for example, the not already registered
vote. So, let's go through this and find out based on
the amendment we just did, what is absolutely
necessary for you to do to make it smoother or is
there anything, based on the amendment, nothing, right
at this point?
MS. BAKALAR responded as follows:
I do think the passage of the previous amendment will
probably sort of moot the reason for this piece of the
amendment, it's hard for me to visualize without a CS
in front of me, I kind of need to look at the CS with
both amendments together to see what works and what
doesn't work because it's hard for me to picture it
all in pieces; but, certainly this part of the
amendment that we are looking at that Senator Coghill
has identified, lines 8-14 on page 1 of our amendment,
certainly is implicated by the amendment that just
passed and because it goes to the opt-out procedures
if there is no opt-out procedure in the bill anymore
then I don't know that this piece is needed because
the whole reason for this piece was to facilitate and
streamline the opt-out procedure. So, if the amendment
is to do away with the opt-out then I don't
necessarily, and again, I will qualify my response by
saying I would need to see the CS and consult with
Legislative Legal and my colleagues, etcetera, but I
don't think this piece of the amendment would be
necessarily needed anymore because it does go to the
whole opt-out concept and if that concept is removed
from the bill then I don't think we will likely need
that piece.
4:35:28 PM
SENATOR COGHILL replied as follows:
Based on that, I would like to reject the amendment,
but have them come back to things that they think they
needed to have for the better operation because it
looks like there are pieces in here that may be
helpful to them, I just don't know the answer to that.
CHAIR MEYER suggested that he hold the bill in committee and
order a committee substitute (CS) with the new Amendment 1. He
confirmed that Amendment 1 changed the bill significantly. He
opined that cleanup was needed for Amendment 2 and noted that
the proposed amendment was different than what the division had
previously offered.
SENATOR GIESSEL asked if she should withdraw her motion to adopt
Amendment 2 or to make a motion to table Amendment 2.
CHAIR MEYER replied that the amendment would be left as moved
with no action taken and be picked up when the committee has a
CS.
4:36:55 PM
CHAIR MEYER held SB 186 in committee.