Legislature(2011 - 2012)CAPITOL 106
04/07/2011 08:00 AM House STATE AFFAIRS
| Audio | Topic |
|---|---|
| Start | |
| SB31 | |
| SB93 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | TELECONFERENCED | ||
| + | SB 31 | TELECONFERENCED | |
| + | SB 93 | TELECONFERENCED | |
SB 31-COUNTING OF WRITE-IN VOTES
8:14:54 AM
CHAIR LYNN announced that the first order of business was CS FOR
SENATE BILL NO. 31(JUD), "An Act relating to the counting of
write-in votes."
8:15:18 AM
SENATOR BILL THOMAS, Alaska State Legislature, introduced SB 31
as joint prime sponsor. He said the bill would clarify state
statute by using language recommended in the Alaska Supreme
Court's Miller v. Treadwell decision - a decision supported by
the Alaska State Superior Court, the Federal District Court, and
the 2010 General Election review. He said the language is from
the federal Uniformed and Overseas Citizens Absentee Voting Act
(UOCAVA), which states explicitly that the director of the
Division of Elections will use the determination of the voters'
intent as the guiding principle when counting and judging write-
in votes. He said SB 31 incorporates the concept that the
courts have applied for the last 50 years.
SENATOR THOMAS stated that the goal of SB 31 is two-fold: to
clarify language in statute to ensure that in future elections
as many Alaska voters as possible are enfranchised; and to
clarify existing language and strengthen the public's perception
of Alaska's democratic process. The purpose of SB 31 is to put
into statute language that the courts have already decided and
to ensure that minor misspellings of names on ballots are
counted as long as the Division of Elections can determine the
intent of the voter.
SENATOR THOMAS said the Office of the Lieutenant Governor has
expressed a desire for clarification regarding when someone has
to register as a write-in candidate; however, he said this is a
separate and more complex issue that he does not wish to address
in SB 31.
SENATOR THOMAS, in response to Chair Lynn, said he understands
that there is no silver bullet to address the problem, but
hopefully voters will study the campaign signs or pamphlets in
order to spell a name close enough to its accurate spelling to
be understood.
8:22:00 AM
REPRESENTATIVE SEATON directed attention to page 2, line 22,
which read as follows:
(c) If the director determines that the
requirements of (a) of this section have been met, the
director shall establish the place and date for
counting those write-in votes, and the director, or a
designee of the director, shall count all write-in
ballots under AS 15.15.360(d).
REPRESENTATIVE SEATON asked if this would set up a situation in
which the director might decide that the recount would be
transferred to another regional center.
8:22:55 AM
BRYER HOPKINS, Staff, Senator Joe Thomas, Alaska State
Legislature, speaking on behalf of Senator Thomas, joint prime
sponsor, explained that all ballots are transferred to Juneau
for final write-ballot counting.
REPRESENTATIVE SEATON said he would like to hear feedback from
the Division of Elections regarding the retransfer of ballots.
8:24:31 AM
REPRESENTATIVE P. WILSON directed attention to language on page
1, [lines 5-7], which read as follows:
(1) writing in the name of a candidate
whose name is printed on the ballot does not
invalidate a write-in vote unless the director
determines, on the basis of other evidence, that the
ballot was so marked for the purpose of identifying
the ballot".
MR. HOPKINS explained that "so marked for the purpose of
identifying the ballot" means that the person could go back
later and make a public records request and find his/her own
ballot.
8:26:09 AM
REPRESENTATIVE GRUENBERG asked if there might be another reason
for invalidating a ballot.
MR. HOPKINS deferred to Ms. Fenumiai.
8:27:20 AM
MR. HOPKINS referred to the historical election race of 2010,
which was won by write-in candidate Lisa Murkowski, the first
person to win a write-in race for U.S. Senator since Strom
Thurmond in the 1950s. He echoed Senator Thomas's statement
regarding the support of the courts in enfranchising voters.
Mr. Hopkins directed attention to a one-page handout in the
committee packet, which provides quotes from the 2010 U.S.
Senate race court findings significant to SB 31. He said the
courts have emphasized the importance of determining voters'
intent, and have stated that Alaska statute is vague in this
matter and, thus, open to various interpretations. He said
Lieutenant Governor Mead Treadwell, in an executive summary,
recommended amending Alaska statute to clarify the rules of
write-in votes and to allow the director of the Division of
Elections to disregard misspellings or other minor variations in
the form of the candidate's name if the intention of the voter
can be ascertained, which would conform Alaska law with recent
court rulings on voter intent. He relayed that the lieutenant
governor also recommended a new section be added to state
statute outlining the process for counting write-in votes
currently set out in regulation.
8:30:13 AM
MR. HOPKINS, in response to Representative Keller, said the bill
sponsor considered various options regarding setting the
boundaries of the director of the Division of Elections, and
then decided to stick with the court's recommendations. He said
the courts have said that having one person look at every
[write-in] ballot would make the process objective. In response
to Chair Lynn, he said the counting of write-in ballots is a
public process; each party is allowed one observer who has the
ability to challenge the decision of the director.
8:33:23 AM
CHAIR LYNN remarked upon the difficult nature of determining
someone else's intent.
8:34:35 AM
MR. HOPKINS, in response to Representative Wilson, offered his
understanding that the process used to count write-in ballots
during the aforementioned 2010 U.S. Senate race is one that is
written in regulations, and it is a process that is similar to
that used by other states during a recount. He offered further
details, and he clarified that two election workers count the
ballots, but it is the sole job of the director of the division
to determine the intent of the voter for any write-in votes that
have been questioned. In response to a question from
Representative Keller about statutory authority, he deferred to
Ms. Fenumiai, the division director, and to Ms. Felix of the
Department of Law.
8:39:11 AM
REPRESENTATIVE PETERSEN directed attention to language
pertaining to write-in votes for governor and lieutenant
governor. He said his understanding of that language is that a
voter could "write in the name of the governor candidate and not
... write in the lieutenant governor's name, and the vote would
still count."
MR. HOPKINS said that is also his understanding. He explained
that following the primary election, the candidates for
lieutenant governor and governor run on the same ticket.
8:40:24 AM
MR. HOPKINS, in response to Representative Gruenberg, offered
his understanding that the same rule would not apply in a
situation in which the voter was not able to spell the
gubernatorial candidate's name but did write in the lieutenant
governor candidate's name.
8:41:41 AM
REPRESENTATIVE GRUENBERG opined that the same rule should apply
to both situations; if the lieutenant governor running with the
governor can be counted with only the governor's name written
in, then the candidate for governor should be counted when only
the name of the lieutenant governor with whom he/she is running
is written in. He asked if the bill sponsor would consider an
amendment to that effect.
8:43:40 AM
SENATOR THOMAS reminded Representative Gruenberg that this is
existing law, but said he would have no objection to such an
amendment.
8:44:15 AM
MR. HOPKINS said SB 31 could prevent the type of outcry heard as
a result of the 2010 election from recurring and save the state
hundreds of thousands of dollars by reducing the potential of
future litigation.
8:45:15 AM
MR. HOPKINS stated that Section 1 of the proposed legislation
amends AS 15.15.360 to address the counting of write-in votes
and the determination of voter intent by the division director.
He noted that paragraphs (1)-(4) in AS 15.15.360(d) were
previously paragraphs (9)-(12) in AS 15.15.360(a); paragraph (5)
is added to AS 15.15.360(d) under SB 31. He related that
paragraphs (1)-(8) in AS 15.15.360(a) address the counting and
marking of standard ballots - not write-in ballots.
8:49:01 AM
MR. HOPKINS explained that Section 2 introduces into statute
language that is currently in Regulation 6 AAC 25.085, regarding
standards for counting ballots and the date and time for the
counting to occur. Subsections (1) and (2) address the counting
of write-in ballots.
8:50:44 AM
REPRESENTATIVE PETERSEN directed attention to page 2, line 18,
which refers to the "percentage necessary for a recount at the
state's cost under AS 15.20.450. He asked Mr. Hopkins to
clarify what that percentage is.
MR. HOPKINS said it is one half of one percent. In response to
a follow-up question, he confirmed that the percentage
requirement relates to the time after which all the absentee
ballots and early ballots have been counted. In response to
Representative Wilson, he confirmed that all the language in
Section 2 is new to statute.
8:52:13 AM
REPRESENTATIVE KELLER suggested including the language of 42
U.S.C. 1973ff [in subsection (c) of Section 2] for the purpose
of clarity, rather than just listing the code. He asked for
details regarding the code.
MR. HOPKINS deferred to the Department of Law.
8:53:09 AM
CHAIR LYNN questioned whether there is any language that could
be added to SB 31 to define intent.
MR. HOPKINS indicated that the best answer would be to keep the
recounting of write-in ballots a public process.
8:54:24 AM
MR. HOPKINS stated that the process described in Section 2 was
used successfully during the aforementioned 2010 election.
8:55:04 AM
REPRESENTATIVE GRUENBERG returned to the issue of 42 U.S.C.
1973ff, referenced in Section 2, subsection (d), and he
suggested that the subsection should read as follows: "This
section does not apply to the counting of federal write-in
absentee ballots submitted under federal law." He explained
that U.S. Congress could amend the code and then Alaska Statute
would have to be changed.
MR. HOPKINS indicated that the bill sponsor would be willing to
consider that change of language after first hearing feedback
from the Department of Law.
8:57:05 AM
REPRESENTATIVE KELLER opined that it is "appropriate for a
sovereign state to put guidelines on votes that are also covered
by federal law."
8:57:41 AM
MR. HOPKINS noted that the lieutenant governor had made one
other recommendation to eliminate the requirement for a write-in
candidate to file as an official write-in candidate; however,
the bill sponsor decided not to include that recommendation in
the bill in order to simplify the bill by sticking with the
recommendations of the courts. He offered further details.
9:00:17 AM
REPRESENTATIVE PETERSEN asked if the bill sponsor decided not to
put language in the bill that would make it illegal to solicit
candidates over the airwaves.
MR. HOPKINS asked Representative Petersen to clarify if he is
referring to something that happened on the radio.
REPRESENTATIVE PETERSEN [nodded].
9:01:29 AM
SENATOR THOMAS said he did not consider that situation. He
stated that it seems ridiculous for people to have the ability
to run for office when they would not even be able to serve if
elected.
CHAIR LYNN mentioned freedom of speech and the encouragement
candidates may receive to run.
9:02:35 AM
REPRESENTATIVE SEATON said it could be problematic if there is
no declaration of candidacy and there are two people in the
state with the name of the write-in candidate. He said he would
like to keep the bill the way it is.
9:03:53 AM
MR. HOPKINS, in response to Representative Keller, confirmed
that the lieutenant governor did not cite specific language for
statute. In response to a question from Representative Wilson,
he restated the purpose of Section 3.
9:05:26 AM
REPRESENTATIVE SEATON offered his understand that there is no
language in the bill that contradicts the Supreme Court's ruling
or its interpretation of Alaska's current election law.
SENATOR THOMAS confirmed that is correct.
REPRESENTATIVE SEATON related a conversation between [the
committee] and the chief justice a couple years ago regarding
legislative intent. He said, "It is a presumption that we do
not enact statute willy-nilly or just to duplicate what already
is current law." He said he wants it made clear for the record
that by supporting SB 31, the committee would be verifying the
current interpretations of law, but would not be instituting any
change to the current interpretation of law. In response to
Representative Keller, he emphasized that SB 31 would not change
"the existing way we do it."
9:07:31 AM
CHAIR LYNN remarked that what is currently in regulation would,
under SB 31, be put in statute; therefore, that is a change.
REPRESENTATIVE PETERSEN said that is the point he was going to
make.
9:09:37 AM
CHAIR LYNN, after stating his support for SB 31, passed the
gavel to Vice Chair Keller.
9:10:38 AM
SARAH FELIX, Assistant Attorney General, Labor and State Affairs
Section, Civil Division (Juneau), Department of Law (DOL),
provided an overview of SB 31. Regarding the counting of write-
in votes, she stated that SB 31 would codify the decision of the
Alaska Supreme Court in the Miller v. Treadwell case. The
proposed legislation takes the language of the court decision,
which is taken from federal law. She said the key language in
SB 31 is found on page 2, lines 6-8, which read as follows:
(5) in counting votes for a write-in
candidate, the director shall disregard any
abbreviation, misspelling, or other minor variation in
the form of the name of a candidate if the intention
of the voter can be ascertained.
MS. FELIX announced that she would respond to previous
questions. She said AccuVote is used to count ballot votes, but
cannot [determine names on] write-in votes. Once the threshold
for write-in votes is met - [as shown on page 2, lines 13-19] -
those write-in votes are hand counted. The authority for that
procedure, which was used in the 2010 General Election, was set
out in AS 15.15.360, combined with write-in statute AS 15.15.105
and regulation 6 A.A.C. 25-085. She said DOL worked closely
with the division to establish the process, which was validated
by the Alaska Supreme Court and the Federal District Court.
9:15:32 AM
VICE CHAIR KELLER asked where in statute the requirement for
having a public process for write-in vote counting is.
Following comments from Ms. Felix, he clarified that he would
like the citation.
MS. FELIX indicated that she could provide the citation later.
9:17:52 AM
MS. FELIX, in response to a question from Representative
Petersen, confirmed that the AccuVote machine can only count
those votes where the voter has filled in the oval, which means
that if a voter wrote in a name of a candidate on the write-in
line but did not fill in the oval next to that line, then that
vote would not be counted.
9:18:41 AM
REPRESENTATIVE GRUENBERG cited a reference regarding public
process in AS 15.15.350, [within subsection (a), paragraph (4)],
which read as follows:
The election board, in hand-count precincts, shall
count the ballots in a manner that allows watchers to
see the ballots when opened and read.
REPRESENTATIVE GRUENBERG said he does not see anything in state
law that would allow the public to observe the counting of
write-in votes, which, he ventured, is what [Vice Chair Keller]
had in mind.
[VICE CHAIR KELLER] responded yes.
9:20:29 AM
MS. FELIX pointed out that under AS 15.20.470 there is a
requirement for public notice of recounts.
REPRESENTATIVE GRUENBERG offered his understanding that the next
committee of referral was the House Judiciary Standing
Committee, and he suggested that the matter could be pursued
there.
VICE CHAIR KELLER concurred.
9:22:53 AM
MS. FELIX next addressed the previously discussed issue of the
listing of 42 U.S.C. 1973ff [on page 2, line 25]. She explained
that 42 U.S.C. 1973ff is the overall section of UOCAVA, and
including it makes it clear that the federal write-in ballots
would be counted.
9:24:37 AM
REPRESENTATIVE GRUENBERG asked Ms. Felix if there is any other
section of federal law that should be included in SB 31.
MS. FELIX said she is not aware of any. She noted that the
language regarding "abbreviation, misspelling, or other minor
variation" is language from federal law that has been used in
paragraph (5), on page 2, lines 6-8.
REPRESENTATIVE GRUENBERG emphasized the importance of citing
federal law for the record.
MS. FELIX said the language in paragraph (5) is from 42 USCS Sec
1973ff-2(c)(3).
9:27:35 AM
REPRESENTATIVE GRUENBERG suggested that since Ms. Fenumiai has
authority under existing law to promulgate regulations, she may
want to look to do so in conjunction with existing federal law.
9:28:10 AM
REPRESENTATIVE SEATON directed attention to language on page 2,
line 23, regarding the establishment of the place and date for
counting write-in votes, and he asked if there would ever be a
situation in which the director of the Division of Elections
would choose to hold the count in Nome instead of in Juneau.
9:28:45 AM
GAIL FENUMIAI, Director, Division of Elections, Office of the
Lieutenant Governor, answered that she cannot imagine that
happening, because the ballots are sent to Juneau in a secure
fashion, following the counting at the precincts and the
counting of the ballots at the regional offices for "absentee in
question." She explained that it would not be a good security
measure to ship ballots back and forth throughout the state for
recounts or write-in vote counts. She related that the ballots
come to Juneau for the State Review Board to use during its
audit of the election and are kept in one secured, locked
facility.
REPRESENTATIVE SEATON questioned whether it would not be better
to establish in statute where the ballots will be counted,
leaving the date to the discretion of the director.
MS. FENUMIAI responded that if the committee wants to name, in
statute, a specific location, it should be the place where the
ballots are shipped, which is in Juneau. In response to a
follow-up question, she said such a change should specify that
the location in Juneau is the director's office, which is where
the State Review Board convenes. She said she would not use the
term, "regional office," because that means one of the
division's five sites throughout the state.
REPRESENTATIVE SEATON asked for clarification that Ms. Fenumiai
is saying that the place should be the director's office so that
if that office changes location, it would still be clear where
the ballots would be sent. He explained that he wants to avoid
a debate about discretion.
MS. FENUMIAI said she agrees but is currently at a loss for
wording. She suggested the language could read, "at the
location to where the ballots are shipped following the
election."
REPRESENTATIVE SEATON said he would like to know if the bill
sponsor finds that suggestions acceptable.
9:33:35 AM
VICE CHAIR KELLER said he wonders if the place that is specified
should be "where most of the people are."
REPRESENTATIVE SEATON said he wants to preserve the security of
the system; therefore, he suggested the language could be
changed to specify the place where the ballots are shipped
following the election.
9:34:54 AM
MS. FENUMIAI cited regulation 6 AAC 25-200, pertaining to
recounts, which states that all recounts will be conducted at
the director's office or at another site in Juneau.
9:35:21 AM
MS. FENUMIAI, in response to a question from Representative
Petersen, explained that on election night, in the optical scan
precincts where the ballot tabulators are, if the oval is filled
in next to the line for a write-in candidate, it triggers a vote
to go to the overall write-in category. In the hand-count
precincts, those votes are also counted as a write-in vote -
there is no individual identification as to whom those votes
belong. The determination as to whether the threshold set out
in statute is met is done post election.
9:36:17 AM
MS. FENUMIAI, regarding Representative Gruenberg's previously
stated concern regarding the disparity in counting write-in
votes for governor and lieutenant governor based on which name
has not been entered correctly, said she could foresee a problem
with amending that language. She explained that the intent may
not be so clear. For example, she said a person may write in
the name of someone running for lieutenant governor, but really
want that person as governor.
REPRESENTATIVE GRUENBERG said a person has to register to run
for a particular office; therefore, he/she could not be counted
as a write-in for another office.
MS. FENUMIAI said this is uncharted territory that needs time to
be considered.
9:38:38 AM
MS. FENUMIAI noted that the lieutenant governor provided an
amendment that would amend AS 15.25.105(c) so that a letter of
intent could be filed up to the day of the General Election.
Currently statute allows a letter of intent to be filed up to
five days before the election.
VICE CHAIR KELLER suggested the amendment could be considered by
the House Judiciary Standing Committee.
9:40:44 AM
REPRESENTATIVE SEATON restated his concern regarding the
conflict that could arise if one person filed as a write-in
candidate and there was someone else in the state with the same
name.
MS. FENUMIAI responded that if it became a voluntary issue to
run as a write-in candidate, there could potentially be some
difficulties related to determining voter intent if there were
two people with the same name. However, she clarified that the
lieutenant governor's proposal would be to change the filing
deadline from five days prior to the general election up through
the day of the General Election.
VICE CHAIR KELLER offered his understanding that two topics were
brought up: one was regarding a letter of intent conceptual
amendment and the other was "using just one last name." He said
both issues would be discussed by the House Judiciary Standing
Committee.
9:43:03 AM
VICE CHAIR KELLER, after ascertaining that there was no one else
who wished to testify, closed public testimony.
9:43:52 AM
REPRESENTATIVE SEATON moved to adopted Conceptual Amendment 1,
as follows:
Page 2, line 23:
Delete "place and"
Page 2, line 24, following "votes":
Insert "which shall occur at the place where the
ballots are physically shipped following the
elections"
9:44:24 AM
REPRESENTATIVE KELLER objected for the purpose of discussion.
9:44:43 AM
SENATOR THOMAS said he does not oppose Conceptual Amendment 1.
He suggested using the phrase, "an appropriate public place",
would also work. He indicated that in the past [the counting of
write-in ballots] has been a public event; however, he said
specifying that in statute is not a problem.
9:45:32 AM
REPRESENTATIVE GRUENBERG moved to amend Conceptual Amendment 1,
to insert "public" between the words "at the" and "place".
REPRESENTATIVE SEATON said he would accept that as a friendly
amendment.
9:46:42 AM
VICE CHAIR KELLER removed his objection to Conceptual Amendment
1, as amended. He asked if there was any further objection.
[No further objection was stated, and Conceptual Amendment 1, as
amended, was treated as adopted.]
9:46:59 AM
REPRESENTATIVE WILSON moved to report CSSB 31(JUD), as amended,
out of committee with individual recommendations and the
accompanying fiscal notes. There being no objection, HCS CSSB
31(STA) was reported out of the House State Affairs Standing
Committee.
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