Legislature(2001 - 2002)
03/22/2001 03:37 PM STA
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 primary. 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 decision. 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 date. 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.