Legislature(2011 - 2012)BELTZ 105 (TSBldg)
02/23/2011 01:30 PM Senate JUDICIARY
| Audio | Topic |
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| Start | |
| SB39 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 39 | TELECONFERENCED | |
| + | TELECONFERENCED |
SB 39-U.S. PRESIDENTIAL ELECTION COMPACT
1:33:42 PM
CHAIR FRENCH announced that the business before the committee
would be to take public testimony on SB 39, the U.S.
Presidential Election Compact.
1:34:29 PM
JUDY ANDREE, representing herself, Juneau, AK, said she is
speaking in support of SB 39. She related that in 1996 she very
nearly missed voting in the presidential election. At 7:30 p.m.
she realized she'd forgotten and she rushed to get to the polls
before it closed. But before she voted she heard that Senator
Robert Dole had conceded the election to President Bill Clinton.
The Alaska polls were still open and she felt that her vote
wouldn't count in an election that had already been decided. In
subsequent elections she voted early in the day so that she
would feel that her vote would count, but then in 2008 she was
disheartened to realize that neither her vote nor any Alaskan's
vote had mattered. At 7:00 p.m. on election night the announcers
were referring to President-elect Barack Obama. Ironically, she
said, Senator Dole stated in 1979 that switching to a direct
election system would change the nature of campaigning.
Candidates would then realize the importance of individual votes
from both small and large states.
Under the current system the Electoral College funnels tens of
thousands of votes down to a handful of electoral votes in a
winner-take-all process. This basically means that the votes for
the losing candidate are counted only at the state level even
though the election is to elect a national leader.
Joining the National Popular Vote Compact would be a big change
and that can be frightening, but we shouldn't fear change any
time it allows each citizen to know that his or her vote really
does count, she concluded.
1:38:53 PM
COURTNEY O'BRIEN, Director, Public Safety and Elections Task
Force, American Legislative Exchange Council (ALEC), Washington,
D.D., said ALEC is a non-partisan membership association of
state legislators that is dedicated to promoting the
Jeffersonian principles of free markets, limited government, and
individual liberty. ALEC is opposed to a national popular vote
system for several reasons. One is based on ALEC's belief that
the founders created the Electoral College to ensure balance
between large and small states and among different interest
groups. The current system respects the founders' strong beliefs
that individual states should have a vital role in electing the
President of the United States. It ensures that an elected
executive has support in different regions and among different
groups and it protects minority interests.
SB 39 would have Alaska ratify an interstate compact to elect
the president by national popular vote. This is an attempted
end-run around the U.S. Constitution because the inventers know
that it would be difficult to change the voting system by
constitutional amendment. She pointed out that in the past
Congress has rejected 1,000 amendments to alter the Electoral
College.
MS. O'BRIEN stated that the ALEC membership of almost 2,000
state legislators has passed resolutions supporting the
Electoral College and opposing the national popular vote. She
added that copies of the resolutions were submitted to the
committee.
1:41:28 PM
DEBBIE JOSLIN, Eagle Forum Alaska, Anchorage, AK, urged the
committee to vote no on SB 39. She understands the struggles in
Alaska with time zones and feeling unimportant, but under the
current Electoral College system Alaska's three electors are
pledged to vote for the winner of the Alaska popular vote. It's
important that this continue rather than having the Alaska
electors vote for the winner in some more populous Lower 48
state, she said. Even though a candidate may have conceded on
the eve of the election, no one really wins or loses the
presidency until the Electoral College votes are cast. It's
important to continue to uphold the Electoral College system
where the Alaska electors are pledged to vote for the winner of
the Alaska popular vote, she concluded.
1:43:16 PM
Dr. GEORGE BROWN, representing himself, Douglas, AK, said he is
speaking in favor of SB 39 to improve the practice of democracy
in Alaska and the nation. He related that he first voted in
Alaska in the 1972 presidential election and was disappointed
that the results were decided by the time he voted and that's
been his experience in every national election since then. Thus
he is strongly in favor of joining an interstate compact so that
the election of the U.S. President and Vice-President will be by
the national popular vote. He disputed the idea that the bill
does away with the Electoral College; it fully abides by the
constitutional requirement that each state decide how its
national electorates are to vote. This rational proposal
promotes the positive evolution of the complicated governance of
democracy, he concluded.
1:45:24 PM
CURTIS GANS, Director, Center for Study of American Electorate
(CSAE), stated that CSAE is a non-partisan non-profit
organization that looks at voter participation issues, and he is
speaking in opposition to SB 39. He said the first person who
testified raised the critical issue because it is true that the
presidential campaign takes place in about 12 states while the
others are ignored. The question is whether that's a function of
winner-take-all or of the Electoral College. He said he would
argue that it's a function of winner-take-all because candidates
don't go to states where they don't think they'll win.
He opined that direct elections would undermine the position of
the first testifier because essentially it would be a national
media campaign. There would be no reason to differentiate a
state or region and you'd essentially hand the campaign to media
consultants, he asserted. This wouldn't help Alaska. Demagogic
television campaigning would increase and there would be no
incentive for grassroots activity, coalition building, and no
reason to take into account regional or state differences.
Finally, a recount would mean recounting 130 million votes,
which would make whatever happened in Florida in 2000 look like
a picnic. We'd be better off with the Electoral College, he
concluded.
1:49:46 PM
ROBERT HARDAWAY, Professor, Sturm College of Law, University of
Denver, Denver, CO, stated that he has written books and
articles on the Electoral College, but he is representing
himself. He said he wouldn't discuss the extent to which SB 39
would undermine federalism or whether a popular vote would be
good or bad, but he would talk about the problems of recounts.
This bill doesn't address a national standard for a recount and
states would address the issue differently. Depending on their
criterion, some states would have no recount while others would
have a recount. This would be much more chaotic than in 2000
with the Florida recount.
1:53:06 PM
DANIELLE CARLSON, representing herself, said she was testifying
in support of SB 39. First and foremost, she stated, this not an
issue of partisanship; a vote for any candidate should count for
something. The Electoral College has historically worked in
favor of different parties, citing the sake of convenience. The
Democratic presidential candidate took the popular vote in 2000,
but the Electoral College elected the republican candidate.
While President George W. Busch took the popular vote in the
2004 election, it was the 20 votes from the state of Ohio that
balanced it in his favor, even though some statistics show that
it might not have gone that way. She said her final point is
that she's has been voting in Alaska since age 18 and she has
yet to see a candidate come to the state to campaign.
1:55:14 PM
TRENT ENGLAND, Director, Constitutional Studies and the Save Our
State Project, Evergreen Freedom Foundation in Washington State,
said he has been studying the Electoral College for about a
decade and he has concerns about SB 39. The national popular
vote compact is an adhesion contract that hands over control to
fix a variety of problems including recounts. It's a take-it-or-
leave-it approach. He added that he's always surprised when the
issue of who gets ignored is used to support the national
popular vote concept because candidates' consultants always have
and always will make the decisions about which voters to focus
on and which interest groups to go after. Finally, he said, the
ideology of the national popular vote is legitimate, but the
rationale is the same as the rationale for abolishing the U.S.
Senate, and that wouldn't be good for Alaska. Some people
believe that it would make voters more mathematically equal, but
that doesn't mean that it's a good idea. He asserted that
political stability, moderation, and having a system that has a
requirement of some national geographic balance rather than
taking the raw popular vote is much more important than the idea
of voter equality that's based on maybe more glad-handling in
states that are currently considered safe states. He urged the
committee to consider all the potential unintentional
consequences of the national popular vote.
1:58:47 PM
CHAIR FRENCH asked why he believes that the Electoral College
guarantees broad geographic support.
MR. ENGLAND responded that the Electoral College System is what
forced the Democratic Party to go national after the Civil War.
They moderated their message in the South and reached outside
their geographic base to nominate candidates and build party
infrastructure. This actually weakened the party in the Deep
South, but it produced moderation and incentivized parties to
seek just over 50 percent plurality in as many states as
possible, rather than 80 percent to 90 percent in a handful of
states. The national popular vote system doesn't produce that
sort of incentive, he said. In fact, it has the potential to
create geographic divisions and radical politics.
2:01:07 PM
SENATOR COGHILL asked him to speak to the issue of battleground
states versus battleground population areas because it seems
that under the national popular vote the battleground would be
in population bases that were split rather than states that were
split.
MR. ENGLAND said over half the country's population lives in the
40 largest urban statistical areas and political consultants
understandably would focus on those population centers in a
presidential campaign. Obviously, state borders are
ideologically neutral, but the swing states change dramatically
over time. The good thing about the way it works under the
Electoral College, he said, is that it drives the national
politics to whatever state is in the middle in a particular
election. This is compared to the national popular vote that
creates a "may the best demographer win" situation. There's
benefit to having arbitrary borders rather than borders drawn
according to population density or political ideology, he
stated.
2:04:32 PM
RANDY RUEDRICH, Chair, Alaska Republican Party, stated that he
views SB 39 as an attack on the constitution and Alaska's
sovereignty. The constitution is a compromise between large and
small states and it created a representative republic. It did
not create a democracy and it didn't establish a parliament. It
created an Electoral College to select a U.S. President. The
presidential electors represent their individual states and
their voters. Alaska has three votes in the Electoral College
and that is 300 percent of the state's representation in
Congress. Allowing SB 39 to become the guiding force, Alaska's
impact and selection of a president will be significantly
reduced, he warned. In fact, Alaska electoral voters may be
required to cast their votes for a candidate that lost the
election in Alaska. Worse yet, it could change the election
outcome in the Electoral College that was created by the
constitution.
Today 66 percent of Alaskans have voted in the last two
presidential elections. As proof that the presidential process
motivates people to come vote, statistics show that only 52
percent of Alaskans voted in the last two governor elections,
but switching to the more meaningless process prescribed by the
compact could decrease turnout. Under the current process about
20 states attract 90 percent of the campaign money in the
presidential race. The larger states that are clearly republican
or democrat are ignored and the smaller states that are clearly
republican or democrat are ignored. The operating concept for
the current process is further limited by the funds under
federally funded campaigns, which have been used by all
presidential candidates, save one, since 1974. The national
popular vote will destroy this process, he asserted. The
battleground states will drop from the campaign radar and future
campaigns will focus on the population-rich states. All small
states will become invisible. As population shifts to major
cities the national popular vote process will drive the
campaigns to the population-rich coastal states. SB 39 will
ultimately subvert the representative republic into a mega-city
democracy. The interior of the nation will be stripped of
political relevance and SB 39 will drive future campaigns to the
likes of Boston, Houston, Miami, New York, Seattle, and possibly
Washington D.C. He again claimed that the bill is an attempt to
destroy the constitution and damage Alaska's sovereignty.
2:08:41 PM
SENATOR COGHILL asked if he believes that Alaska voters would
receive more attention in presidential campaigns if it were to
sign into the compact.
MR. RUEDRICH answered he doesn't believe the state would gain
anything in terms of visibility because the focus would shift to
the major cities. He added that in the 2000 election either
Alaska's three votes or Wyoming's three votes made the material
difference in the outcome, which proves that small states matter
in the current process.
CHAIR FRENCH asked what was right or just about the outcome in
the 2004 election when 60,000 votes switching sides in Ohio
produced a George Busch presidency in the face of a three
million vote deficit nationally.
MR. RUEDRICH expressed the view that it is a state-by-state
process for winning or losing an election. He added that the
constitution doesn't recognize the importance of a national
popular vote, and that was well founded.
CHAIR FRENCH pointed out that the U.S. Constitution does speak
on the subject, and it gives state legislatures the power to
decide how to award their electors. He added that rather than an
attack on the constitution, it's another step in trying to find
out what it means, and every generation has to do that.
2:11:25 PM
GRANT HUNTER, representing himself, said people in other states
have no place in determining how Alaska casts its votes in
presidential elections. Since the Jacksonian revolution of the
1830s, these decisions have been made by the votes of people
entitled to vote in the various states according to the
electoral procedure set out by law in those states. The
Legislature has no moral right to give away by interstate
compact the votes of future Alaskan electorates in future
Alaskan elections, particularly since this state has
consistently voted Republican in presidential elections, he
stated. He further stated that this is the moral equivalent of a
lawyer or accountant embezzling funds that have been entrusted
in his care. The Republican Party supports states rights,
natural resource development, a strong defense, and the Second
Amendment. Awarding electoral votes as proposed by SB 39 would
result in Alaska voting for the Democratic Party in the
Electoral College when Alaska voters had in fact voted for the
Republican Party.
2:15:29 PM
SENATOR PASKVAN commented that it's interesting that the speaker
relies upon the word "morals" in his statement.
SENATOR WIELECHOWSKI added that that is probably the most
hateful statement he's heard in four years of listening to
public testimony.
2:16:12 PM
DERRICK KITTS, National Popular Vote, testified in support of SB
39. He pointed out that the U.S. Constitution grants two
specific points that are relevant to the bill. First, states
have the right and authority to enter into compacts with other
states. Second, all state legislatures are granted specific
authority to pattern and cast their electoral votes in the
manner determined to be in the best interest of the particular
state.
MR. KITTS explained that the bill doesn't address a national
recount because that is a state's rights issue. Alaska and the
other 49 states each determine how to conduct their own
recounts. Correlating the national popular vote to the debacle
in Florida blurs the issue because what happened in Florida was
a concentration of importance in one state that did determine
that election. He noted that time zones have been mentioned and
this was the issue that arose in Florida during the presidential
election of 2000. Most political pundits didn't know that
Florida has two zones. The majority of the state is in the
Eastern Time Zone while the panhandle is in the Central Time
Zone. When the national networks called the election for Al
Gore, they didn't realize that the polling locations in the
extremely conservative panhandle weren't closed. Once they
figured that out, they recalled the election for George W.
Busch. When they realized that the turnout wasn't nearly as
great and strong as it would have been based on the "I might as
well not vote because it's over" mentality, the national media
again changed course and went undecided. That was the start of
the 36-day post election drama.
MR. KITTS said the caller that determined that the effort to
ensure that every vote is equal and counted was idiotic is the
same person that defines a broad coalition of states as five
competitive states. This is the same person that thinks that 35
states that don't get polled in presidential elections is a
broad coalition. He said he would suggest that it is a broad
coalition, but it's a broad coalition of states that are
completely ignored. He then corrected the state Republican Party
Chair's statement that 20 states get 90 percent of the campaign
funds. It is actually 16 states that receive 99 percent of the
campaign funds for presidential elections and five of those
states receive 75 percent of the funds. None of those states are
west of the Mississippi.
MR. KITTS pointed out that in 1960 both John Kennedy and Richard
Nixon visited Alaska as presidential candidates, and no
presidential candidates have visited since then. President Nixon
in 1971 created the issues of the Arctic and the Arctic National
Wildlife Refuge (ANWR), and Alaska has been battling those since
then. Ironically, both Barack Obama and John McCain were against
drilling in ANWR yet neither visited Alaska. That highlights the
problem, he said. Finally, he said, the Alaska Time zone
increases the state's relevance for the national popular vote.
Presidential candidates couldn't afford to ignore Alaska because
of its time zone and votes it has.
2:22:58 PM
SENATOR COGHILL asked if the compact states would be held
accountable with a compact administrator or some other legal
means.
MR. KITTS explained that the national popular vote compact does
not encroach on federal supremacy so an administrator is not
required.
SENATOR COGHILL asked what the accountability is for states that
enter into and then break this contract.
MR. KITTS said it would be the same as it is now. Each state
appoints a slate of electors who take an oath to vote as the
popular vote dictates. Once in awhile a rouge elector pops up,
but 22 states have already passed legislation to criminalize
that breach of good faith and Alaska could do that.
SENATOR COGHILL asked how much variation would be allowed under
Article IV, which says that states must enact an agreement that
is in "substantially the same form."
MR. KITTS explained that it doesn't say "exact" because a change
in punctuation could lead to a lawsuit. Using the phrase
"substantially the same form" allows variation in the
terminology while keeping the effect intact.
SENATOR COGHILL asked for an explanation of the provision on
page 3, lines 2-7. It states:
If, for any reason, the number of presidential
electors nominated in a member state in association
with the national popular vote winner is less than or
greater than that state's number of electoral votes,
the presidential candidate on the presidential slate
that has been designated as the national popular vote
winner shall have the power to nominate the
presidential electors for that state and that state's
presidential elector certifying official shall certify
the appointment of such nominees.
CHAIR FRENCH asked Ms. Ross to give her testimony while Mr.
Kitts read the provision.
2:28:03 PM
TERA ROSS, representing herself, stated that SB 39 would
effectively eliminate the Electoral College and that would do
more harm than is generally appreciated. Doing so without a
constitutional amendment would be particularly problematic.
National popular vote proponents will claim that their proposal
is best because "every vote should be equal," but it actually
makes voters more unequal than they are perceived to be today,
she said. In fact, the proposal may bring equal protection
problems during presidential elections. She explained that right
now the president is elected in a process that blends federalist
and democratic principles. The U.S. holds 51 separate democratic
elections each presidential election year. Local election laws
impact the manner in which each election is held, but any
differences among state election codes don't matter. The unique
laws of a particular state impact only voters within that state.
The country holds 51 separate elections and achieves 51
different sets of results. Under the national popular vote there
would still be 51 separate elections, but the attempt would be
to derive a single result. She questioned how Alaskans could be
equal to voters in other states when their election operates
under a different set of laws than other voters in the same
election pool.
State differences also include: whether or not felons can vote;
how a candidate qualifies for the ballot; and what serves as a
recount. Furthermore, this is a non-permanent solution since a
constitutional amendment isn't proposed and it could result in
flip-flopping as states sign on and then withdraw from the
compact. She said she doesn't believe the Electoral College
should be eliminated, but if that is the decision it should be
achieved through the constitutional amendment process. She urged
the committee to vote against SB 39.
MR. KITTS deferred to Laura Broad to answer Senator Coghill's
earlier question.
2:33:31 PM
LAURA BROD, representing herself, said she is a former
representative from Minnesota. She asked if the question relates
to the "at least" language.
CHAIR FRENCH said Senator Coghill's question pertains to the
provision on page 3, lines 2-7. It states:
If, for any reason, the number of presidential
electors nominated in a member state in association
with the national popular vote winner is less than or
greater than that state's number of electoral votes,
the presidential candidate on the presidential slate
that has been designated as the national popular vote
winner shall have the power to nominate the
presidential electors for that state and that state's
presidential elector certifying official shall certify
the appointment of such nominees.
MS. BROD said it's a fail-safe measure to ensure that every
state has a full slate of electors. She added that the
suggestion that a candidate would choose an elector from outside
the state is ridiculous. A candidate that's working for votes in
a state would do just as any other candidate does, which is to
select a slate of electors that represents that state.
MS. BROD said she wanted to clarify for the record that the U.S.
Constitution establishes strict overall national schedules for
finalizing presidential election results. Under both the current
system and the national popular vote system all counting,
recounting, and judicial proceedings must reach final
determination prior to the mid-December meeting of the Electoral
College. The safe harbor provision in Title 3.5 of the U.S. Code
establishes that a legal battle cannot be waged beyond the time
that electors cast their ballots. The U.S. Supreme Court has
made it clear that states are expected to make this final
determination six days before the Electoral College meets, which
proves false the notion that the winner wouldn't be known for
months.
MS. BROD said the idea that recounts would be problematic under
the national popular vote blurs the issue because states already
run their own recounts and that wouldn't change. She added that
it's important to understand that there are two avenues for
recounts. One is the automatic recount, and 17 states already
have automatic recount laws. The other is by petition, and right
now 42 states have opportunities for candidates to petition for
a recount.
She disputed the suggestion that the proper way to change how
presidential elections are done is through a constitutional
amendment because that would revoke a state's right that is
clearly set out in the constitution. This nation is a
representative republic and the national popular vote retains
that and doesn't touch the balance of powers that the founders
envisioned, she stated. Rather than a quiet attack on Alaska
sovereignty, the national popular vote actually utilizes Alaska
sovereignty to Alaskans' best interest.
MS. BROD said the suggestion that big cities would decide the
presidency ignores the reality of electoral demography. The
largest 50 cities in the country have just 18 percent of the
population. That means that the many people who don't live in
population centers would have ample opportunity to ensure that
their views were represented in a national popular vote.
The constitution explicitly authorizes sovereign states to enter
into legally enforceable contractual obligations. That includes
compacts. These interstate compacts are legally enforceable due
to the impairments clause in Article I, Section 10, and they
have the force and effect of statutory law.
MS. BROD informed the committee that she was a co-author of this
legislation in Minnesota, and similar legislation is moving
across the country in a non-partisan fashion. The bill is about
Americans who are interested in preserving the Electoral College
and the republic that the founders intended, and fixing the
shortcomings that have evolved over time under the winner-take-
all state statutes. Those state statutes have led to the
concentration of effort that focuses on a few states at the
expense of many. To ensure that everyone's voice is counted in
every election in every state, broadening coalitions and
involving all 50 states is the right direction.
2:42:10 PM
SENATOR PASKVAN asked if the outcome of any state's recount is
relevant only if it would change the national popular winner;
his understanding is that the compact wouldn't be triggered if
the national popular winner wasn't known.
MS. BROD explained that the trigger occurs once states totaling
217 electoral votes enact the compact. She added that a recount
would matter in every state where a recount is needed and in
every state where a candidate requests a recount. Alaska would
never lose the identity of who Alaskans voted for because the
state laws and the state recount laws govern what is sent
forward as the certified total for Alaska.
CHAIR FRENCH asked if she agrees that there would still be a
month interval between the first Tuesday in November and the
time that the electors cast their ballots in the Electoral
College.
MS. BROD agreed. The only thing that changes under the national
popular vote is the pool of votes on which you determine which
slate of electors you send to cast those votes, she said.
SENATOR COGHILL asked if the assertion is true that Alaska could
end up casting electors for someone who did not win the popular
vote in Alaska.
MS. BROD said that's true.
2:45:57 PM
SENATOR COGHILL asked if Alaska could potentially have to cast
its electoral votes for someone who wasn't on the Alaska ballot.
MS. BROD replied there is nothing in the current system that
guarantees that a candidate will be on the ballot in any
particular state, but she believes that any serious presidential
candidate would be on the ballot in all 50 states.
SENATOR COGHILL asked what the tensions might be if the compact
has 270 electors, but other states equaling just under half of
the total electors haven't joined.
MS. BROD pointed out that there are tensions under the current
system, but she believes that more states than not will join the
compact because they'll see the advantages of being part of that
group. However, regardless of whether or not a state joins the
compact, they retain their state's right to award their elector
as they see fit.
SENATOR COGHILL clarified that he was referring to legal
tension.
SENATOR PASKVAN asked how she envisions that this might change
TV reporting on election night.
MS. BROD replied it's exciting that under the national popular
vote TV reporters would actually have to wait and pay attention
to what was happening in all 50 states as opposed to just the
battleground states. They couldn't call a winner until after the
people in Alaska and the West Coast states had voted. Right now
the TV looks at the election of the president taking into
account only the battleground states.
2:51:58 PM
SENATOR WIELECHOWSKI commented that this is a fascinating study
on state's rights versus individual rights.
CHAIR FRENCH closed public testimony and announced he would hold
SB 39 in committee.
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