Legislature(2001 - 2002)

03/22/2001 03:37 PM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                  SB 127-OPTIONAL BLANKET PRIMARY                                                                           
CHAIRMAN THERRIAULT asked  Senator Elton to respond to comments made                                                            
about his bill  during testimony for SB 146. Individuals  testifying                                                            
via teleconference  on SB  146 also included  remarks on SB  127 and                                                            
SCR 8. In particular he  asked whether Senator Elton wanted to speak                                                            
to the issue  of parties picking up  the cost of special  primaries.                                                            
He also planned  to have Assistant Attorney General  Baldwin address                                                            
the issue.                                                                                                                      
SENATOR  ELTON,  Senator  from  District  B, wanted  to  talk  about                                                            
general principles,  move into the  specifics of SB 127 and  finally                                                            
anticipate a question that the committee probably has.                                                                          
   · First, it is important to do no damage to minor parties. There                                                             
     needs to be a system that doesn't encourage people to abandon                                                              
     a party.                                                                                                                   
   · There is a need to avoid chaos, as was the case in Florida.                                                                
   · Non-partisan voters are the majority of voters in the State of                                                             
     Alaska and need to be protected.                                                                                           
   · Realize that there is no finality. Both bill provide that                                                                  
     primary elections may be run differently than the previous                                                                 
The challenge  facing the  legislature is huge.  He can think  of no                                                            
issue  that so combines  partisan  issues with  policy issues.  Each                                                            
legislator  will  be looking  at  the issue  from  their  particular                                                            
viewpoint  be it partisan  or from an ambition  point. Each  elected                                                            
official will ask which  method works to his or her best benefit. Is                                                            
a convention  better for  me than  a caucus or  an open, closed,  or                                                            
blanket  primary? He urged  everyone  to heed the  words of  the Lt.                                                            
Governor  and bring  finality  to this  issue during  this  session.                                                            
Otherwise  the Division of  Elections and  potential candidates  are                                                            
done a great  disservice. They need  to know what the rules  will be                                                            
before they are  able to determine whether they want  to participate                                                            
in the process.                                                                                                                 
Both SB 146 and  SB 127 began with the same general  premise that it                                                            
is important to  preserve the present system to the  greatest extent                                                            
possible. Their ideas diverged  at some point and that anticipates a                                                            
question    committee    members    probably    have    about    the                                                            
constitutionality  and freedom of association. However,  the impulse                                                            
for both is to  try and keep the system close to the  current system                                                            
and  comply with  the  Supreme Court  decision.  This  is what  most                                                            
Alaskans expect.                                                                                                                
SB 127 says  that the State will conduct  a primary election  and it                                                            
will be a blanket primary.  Then it provides that if a party chooses                                                            
not to  participate in  that primary,  they may  opt out. This  gets                                                            
around  the Supreme  Court finding  that the State  cannot compel  a                                                            
party  to  participate  in  a  process   that  they  don't  want  to                                                            
participate  in. Then,  it prohibits  voters from  a party that  has                                                            
withdrawn from the primary  system from participating in the primary                                                            
because you don't want  to give them the opportunity to select party                                                            
candidates twice.                                                                                                               
Most of  the remaining bill  provisions are  quite technical  and he                                                            
would address  them if there were  questions. He did note  that some                                                            
of the  technical issues  were raised by  Mr. Sykes' testimony.  For                                                            
example,  he  is  concerned  about  the  withdrawal  provisions  and                                                            
finding  ourselves  in  the same  situation  as  in 1990.  His  bill                                                            
doesn't change that provision  but the committee should consider it.                                                            
The question  of whether constitutional  problems are being  created                                                            
by associating  a cost to a decision  by a party to not participate                                                             
in a blanket  primary is  a spectrum issue.  Clearly, wherever  that                                                            
cost lines up  on the spectrum may influence the decision  the court                                                            
makes. It isn't a new issue;  Arizona now has a primary system where                                                            
Democratic Party rules  provide a different date for selecting their                                                            
presidential candidate.  The courts have said that the party may opt                                                            
out but they must  pay for the alternate selection  process. This is                                                            
a system that was compelled  by court decision. He cautioned against                                                            
throwing out other  alternatives because it has been  suggested that                                                            
we're abridging the constitution  by associating a cost with a party                                                            
CHAIRMAN THERRIAULT  asked if the Arizona case didn't  say, "We will                                                            
pay for it along  with everybody else if you opt.  Otherwise you can                                                            
choose  to pay  for  your primary."  This  isn't  the  same as  what                                                            
Senator  Elton is  suggesting. The  difference is  that they  aren't                                                            
trying to direct  the way the party  conducts the primary,  just the                                                            
Tape 2                                                                                                                          
SENATOR ELTON  read the following:  "Because the state conducts  its                                                            
election  prior  to  the  date  allowed  under  the  bylaws  of  the                                                            
Democratic  Party, Arizona  allows political  parties to opt  out of                                                            
participation." This is  because their presidential primary statutes                                                            
don't comport  with Democratic  Party bylaws.  "Parties that  do opt                                                            
out of  the state run election,  bear the  cost of conducting  their                                                            
own presidential preference election."                                                                                          
He doesn't see the distinction  between what they have done and what                                                            
SB 127 suggests  which is  that the State  of Alaska will provide  a                                                            
blanket primary.  If party bylaws don't comport with  State statutes                                                            
then the parties  may opt out. SB 127 does not suggest  that parties                                                            
pay for the alternative  selection process but that is probably what                                                            
ends  up happening,  which is  the same  as in  Arizona. Again,  the                                                            
Arizona model is a model suggested by the courts.                                                                               
CHAIRMAN THERRIAULT asked  for questions from the committee members.                                                            
There were none.                                                                                                                
He asked Mr. Baldwin to come forward.                                                                                           
JIM BALDWIN,  Assistant  Attorney  General, said  he isn't  familiar                                                            
with  the Arizona  case but  can speak  to  the effect  of having  a                                                            
political party pay for  holding a different primary, it's electoral                                                            
process of choice.                                                                                                              
The U.S.  Supreme  Court ruled  on a  Texas statute  that said  that                                                            
parties who  wanted to participate  in the state primary  system had                                                            
to pay for the  portion of the cost related to their  participation.                                                            
It was a graduated fee  charged for various offices with the charges                                                            
for statewide  offices being  less than for  local offices.  In that                                                            
instance, the  court applied an equal  protection analysis.  This is                                                            
common  in this  type  of election  case,  which  is a  third  party                                                            
charging  that  they  are  being  treated  differently.  Looking  at                                                            
different state  precedents, it's  difficult to predict an  outcome.                                                            
This is because  the courts will look at the specific  circumstances                                                            
of Alaska  and determine  whether a  good case may  be made  for the                                                            
direction  that  was chosen.  If the  court  is employing  a  strict                                                            
standard, is there  some compelling reason for the  system? Or, will                                                            
the  basis be  more rational  and  ask whether  there  is some  good                                                            
reason why  the State has done what  it has done? It's difficult  to                                                            
predict whether  you'll be faced with  a strict compelling  interest                                                            
standard or a more rational basis.                                                                                              
In the area of  First Amendment rights, and a system  that adversely                                                            
affects those  rights, the State has been faced with  the compelling                                                            
interest standard. That standard was applied in the Jones case.                                                                 
In other  areas, the  State has  been confronted  with the  rational                                                            
basis  standard.  For  example,  states  have  not been  held  to  a                                                            
compelling  interest  standard   when  justifying  the  decision  to                                                            
nominate by election rather  than by convention. In the case where a                                                            
statute says  that the norm is the  blanket primary, you  must leave                                                            
the State system  and do it on your own if you want  to do something                                                            
other than  the blanket primary. "This  presents the problem  of the                                                            
State having  to justify  what it has done  by whatever interest  it                                                            
has in promoting  the blanket primary. We all know  where that ended                                                            
up. It was not a good result  for the State of California and hence,                                                            
applicable for  us. So we start out on the lower end  of that burden                                                            
and I tend to  think that we will be, more than likely,  confronting                                                            
a compelling interest standard  more than a rational basis standard.                                                            
We could  argue Arizona,  California or Texas  but I think  we'll be                                                            
facing a  compelling interest  standard if  this is litigated.  We'd                                                            
have to prepare  for that and record would have to  be made in these                                                            
committees  that are hearing  this bill as  to what particularly  is                                                            
our interest  in maintaining  the system that  we maintain  if we're                                                            
going  to require  that  parties  choose,  and  have there  be  some                                                            
consequences  to  that  choice, without  the  State-there  being  an                                                            
unequal benefit  or an unequal State  benefit being provided  there.                                                            
I'm not saying  it absolutely can't be done; appropriate  case would                                                            
have to be made for it though."                                                                                                 
Number 547                                                                                                                      
CHAIRMAN THERRIAULT said  that he hasn't had the opportunity to read                                                            
the Arizona  case  and he and  his staff  intend to  track down  the                                                            
actual  case  documents  mentioned.   However,  it  seems  that  the                                                            
decision to  participate on the day  that the state selects  for its                                                            
primary or the decision  to not participate on that day and bear the                                                            
expense of  selecting an  alternative date  is different than  being                                                            
required to  bear the expense because  the party wanted to  exercise                                                            
its right to the methodology.                                                                                                   
ASSISTANT  ATTORNEY GENERAL  BALDWIN agreed  but said that  there is                                                            
also  "a  big  difference  between   a  case  that  deals  with  the                                                            
presidential primary and  a case that deals with a state primary for                                                            
a state office. The cases  have been different in how they deal with                                                            
primaries  for national  office. Different  rights  are accorded  to                                                            
those  kinds of electoral  processes  as opposed  to primaries  that                                                            
deal with local  state office. So  I would read that case  carefully                                                            
with that in mind."                                                                                                             
CHAIRMAN  THERRIAULT said that  if a party  chooses to exercise  its                                                            
constitutional  right  they shouldn't  be  preempted  from doing  so                                                            
because they might not have the ability to pay for it.                                                                          
ASSISTANT ATTORNEY  GENERAL BALDWIN  said that the Texas  case dealt                                                            
with candidates  and their party who had to help defray  the cost of                                                            
the election.  In that instance, the  court found that there  wasn't                                                            
sufficient justification  to sustain that burden on  the exercise of                                                            
the right to run  for office or put forward candidates.  He believes                                                            
that's what  Chairman Therriault  is speaking  to and said  the case                                                            
could be made  but the burden for that is heavy along  with the fact                                                            
that  the federal  court  might hold  the  State to  the  compelling                                                            
interest standard.                                                                                                              
In  the Alaska  Constitution,  there  is a  provision  in the  title                                                            
dealing with elections  that says that the legislature shall provide                                                            
the method  of voting.  It doesn't  say that a  primary election  is                                                            
necessary but  if there is voting  going on then it's arguable  that                                                            
the  legislature  shall  regulate   how  that  voting  takes  place.                                                            
Therefore,  if  the legislature  says  there  must be  elections  by                                                            
primaries then there is  a question of whether they must say how the                                                            
voting is conducted.                                                                                                            
CHAIRMAN THERRIAULT said  that the courts can not compel legislative                                                            
action due to separation  of powers so potentially the court and the                                                            
administration   would   work  together   to  determine   what   the                                                            
legislature intended or might do.                                                                                               
ASSISTANT  ATTORNEY GENERAL  BALDWIN said  the legislature  would be                                                            
facing a declaration  that they should do something  and it would be                                                            
up to them to do it.                                                                                                            
CHAIRMAN THERRIAULT  asked whether there were any  questions for Mr.                                                            
Baldwin. There were none.                                                                                                       
He said the  committee would be taking  the matter under  advisement                                                            
and tracking down  information on the court cases  mentioned. SB 127                                                            
was held in committee.                                                                                                          

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