Legislature(2019 - 2020)Anch LIO Lg Conf Rm
10/16/2020 01:00 PM House JUDICIARY
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| Audio | Topic |
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| Presentation(s): Alaska's Election Procedures and Practices | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
ALASKA STATE LEGISLATURE
JOINT MEETING
HOUSE JUDICIARY STANDING COMMITTEE
SENATE JUDICIARY STANDING COMMITTEE
Anchorage, Alaska
October 16, 2020
1:06 p.m.
MEMBERS PRESENT
HOUSE JUDICIARY STANDING COMMITTEE
Representative Matt Claman, Chair
Representative Chuck Kopp (via teleconference)
Representative Harriet Drummond (via teleconference)
Representative Louise Stutes (via teleconference)
Representative Gabrielle LeDoux (via teleconference)
Representative Sarah Vance (via teleconference)
SENATE JUDICIARY STANDING COMMITTEE
Senator John Coghill, Chair (via teleconference)
Senator Peter Micciche, Vice Chair
Senator Shelley Hughes (via teleconference)
Senator Jesse Kiehl (via teleconference)
MEMBERS ABSENT
HOUSE JUDICIARY STANDING COMMITTEE
Representative Laddie Shaw
SENATE JUDICIARY STANDING COMMITTEE
Senator Lora Reinbold
OTHER LEGISLATORS PRESENT
HOUSE MEMBERS
Representative Bryce Edgmon (via teleconference)
Representative Ivy Spohnholz (via teleconference)
Representative Sara Hannan (via teleconference)
SENATE MEMBERS
Senator Tom Begich (via teleconference)
Senator Elvi Gray-Jackson (via teleconference)
COMMITTEE CALENDAR
PRESENTATION(S): Alaska's Election Procedures and Practices
- HEARD
PREVIOUS COMMITTEE ACTION
No previous action to record
WITNESS REGISTER
GAIL FENUMIAI, Director
Division of Elections
Office of the Lieutenant Governor
Juneau, Alaska
POSITION STATEMENT: Answered prepared questions and presented
information related to Alaska's election procedures and
practices.
CORI MILLS, Assistant Attorney General
Civil Division
Labor and State Affairs Section
Department of Law
Juneau, Alaska
POSITION STATEMENT: Responded to questions related to Alaska
elections.
SENATOR ELVI GRAY-JACKSON
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Asked questions during the presentation on
election procedures and practices in Alaska.
SENATOR TOM BEGICH
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Asked questions during the presentation on
election procedures and practices in Alaska.
ACTION NARRATIVE
1:06:52 PM
CHAIR MATT CLAMAN called the joint meeting of the House and
Senate Judiciary Standing Committees to order at 1:05 p.m.
Present at the call to order were Representatives LeDoux (via
teleconference), Drummond (via teleconference), Vance (via
teleconference), Stutes (via teleconference), Kopp (via
teleconference), and Chair Claman; and Senators Hughes (via
teleconference), Kiehl (via teleconference), Micciche, and Chair
Coghill (via teleconference).
^PRESENTATION(S): Alaska's Election Procedures and Practices
PRESENTATION(S): Alaska's Election Procedures and Practices
1:08:33 PM
CHAIR CLAMAN announced that the only order of business would be
a presentation on Alaska's election procedures and practices. He
opened invited testimony and explained that the presenters would
first respond to the list of questions he prepared regarding
election procedures and practices. He noted that copies of the
questions were also distributed to the members.
1:10:04 PM
GAIL FENUMIAI, Director, Division of Elections, Office of the
Lieutenant Governor, stated that she would answer the questions
that Chair Claman provided, but she would start with a snapshot
of the division and its work to provide some context to her
answers.
She said the 28 fulltime staff at the Division of Elections have
been working tirelessly to conduct an election that is as safe
and efficient as possible during a pandemic and given a record
number of absentee by-mail ballots. She said the division also
must be prepared to have voting in all 441 precincts, which
entails recruiting over 2,500 election workers, testing voting
equipment, preparing supplies, processing absentee applications,
mailing ballots, logging ballots, working with the various
boards, troubleshooting, and reviewing and counting ballots.
1:11:55 PM
MS. FENUMIAI read question 1:
1. What are the procedures for counting absentee
ballots and early voting ballots?
MS. FENUMIAI explained that absentee ballots, which include by-
mail ballots, ballots sent by FAX or online delivery, absentee
in-person ballots, and special-needs ballots, are logged and
batched when they are received. Division staff then assign an
initial accept or reject code to each ballot based on the
registered voter's information. The bipartisan absentee review
board, which is authorized by AS 15.20.190-205, convenes not
less than seven days before the election to review all absentee
ballots and determine whether the absentee voter is qualified to
vote in the election and whether the ballot has been properly
cast.
She advised that an absentee ballot may not be counted if the
voter failed to sign and provide an identifier on the
certificate; if it's postmarked after Election Day; if it was
delivered after the election by a means other than mail; and if
it was not received by the statutory deadline set in AS
15.20.203. For the general election, that would be ten days
following the election if postmarked within the United States
and 15 days after if postmarked outside the United States.
MS. FENUMIAI stated that the absentee review board must complete
its duties by the 16th day after the election. She explained
that ballots that go through the review process are counted once
duplicate voter research is completed. The division must have
all 441 precinct registers in hand and processed to compare and
reject absentee ballots from voters who also voted in person.
She posited that duplicate voting is likely to increase with an
increase in absentee voting. The absentee review and counting
process doesn't start for seven days to accommodate more rural
locations where it takes longer to get the registers back.
Counting will continue through November 18, which is the last
day to receive ballots by mail if they were postmarked outside
of the United States.
She said early voted ballots do not require any post-voting
review, because voter eligibility is determined at the time of
voting. The voter signs an early voting certificate that states
the information appearing on the certificate is true and
correct. Early ballots that are cast through the Thursday before
Election Day will be counted on election night. Early voted
ballots cast Friday through Election Day will be counted with
other absentee ballots on the seventh day following the
election.
MS. FENUMIAI read question 1a: [Original punctuation provided.]
1.a. If a voter requests an absentee ballot, but then
votes in-person instead, is the in-person ballot
always considered a "questioned" ballot?
MS. FENUMIAI answered no. A questioned ballot is voted for the
following reasons: a person's name does not appear on the
precinct register, the information in the precinct register is
not correct and the voter wants to correct it, someone
challenges the eligibility of a voter, or if it is noted on the
precinct register that the person has already voted. During a
primary election, a voter has to vote a questioned ballot if
they request a ballot for which they are not qualified to vote,
based on party bylaws.
MS. FENUMIAI read question 1b: [Original punctuation provided.]
1.b. How many people requested absentee ballots, but
then voted in-person in November 2018?
MS FENUMIAI answered that the division does not have a report
that can produce this information.
MS. FENUMIAI read question 1c: [Original punctuation provided.]
1.c. Can a voter vote early in-person at a regional
election office (even if is not [in their]
region)? If so, are those ballots counted at the
same time as other early voting ballots or with
the absentee ballots?
MS. FENUMIAI explained that a person can vote early in person at
any regional election office. The ballot will be counted
according to when the vote was cast.
1:16:52 PM
CHAIR CLAMAN asked what day of the month the Thursday before the
election falls on this year.
MS. FENUMIAI replied Election Day is October 29, 2020. She added
that the ballots cast at the early voting locations from October
19 through October 29 will be counted on Election Day. Early
voted ballots cast on October 30 through November 3 will be
counted seven days following the election.
1:17:30 PM
MS. FENUMIAI paraphrased question 2a that read as follows:
2.a. How many drop boxes for absentee ballots are set
up in Anchorage, Fairbanks, Juneau, and the
MatSu?
MS. FENUMIAI said there are 10 drop boxes in those locations and
one at the Kenai Peninsula Borough office.
MS. FENUMIAI paraphrased question 2b that read as follows:
2.b. Which communities have drop boxes in rural
Alaska?
She answered that there are no drop boxes in rural Alaska, and
continued to the third section of questions.
1:18:04 PM
CHAIR CLAMAN asked her to respond to questions 2c and 2d that
read as follows: [Original punctuation provided.]
2.c. Will there be opportunities to add additional
drop boxes before November 3, 2020?
2.d. Has the Division partnered with local government
for drop boxes and locations (municipalities,
boroughs, and cities)?
1:18:47 PM
MS. FENUMIAI said the logistics of shipping secure drop boxes
around the state is not feasible due to the many other duties
the division is currently overseeing. Regarding partnering with
local governments, she restated that the Kenai Peninsula Borough
has a drop box and is monitoring it for the division. The drop
box in the MatSu Borough is shared with the borough whose local
election is also on November 3.
MS. FENUMIAI turned to the next section of questions regarding
the schedule for counting absentee and early voting ballots.
Question 3a read as follows:
3.a. Are early in-person ballots counted on election
day? [Original punctuation provided.]
MS. FENUMIAI explained that early voted ballots cast
through October 29th will be counted on Election Day. Early
voted ballots cast after October 29 and absentee in-person
ballots will be counted seven days after the election.
MS. FENUMIAI read question 3c:
3.c. Is there a recommendation for when a voter should
put an absentee ballot in the mail?
She said the division encourages voters to return their voted
ballots as soon as possible.
1:20:45 PM
MS. FENUMIAI read question 4 regarding the history of voter
fraud in Alaska and asked to defer it to Ms. Mills with the
Department of Law.
CHAIR CLAMAN replied that is acceptable.
MS. FENUMIAI read question 5: [Original punctuation provided.]
5. What steps is the Division taking to prevent voter
fraud in 2020?
MS. FENUMIAI said fraud prevention starts at the registration
level when a person's identity is verified before they are
registered. Verification can occur when a person registers in
front of a registrar, at a Division of Motor Vehicles (DMV)
office, or via the division's online voting system. Verification
is done as required by Help America Vote Verification (HAVV)
through the Social Security Administration. Verification is also
done when a voter applies for an absentee ballot and provides
their date of birth and another identifier. This information is
then checked against what appears in the state's voter
registration system to ensure that the voter is authentic and
eligible to receive a ballot. When a person goes to vote, they
provide identification to the election worker or the election
worker can note that they know the person. If the voter does not
present identification and is not personally known by the
election worker, the voter must vote a questioned ballot. The
process for reviewing a questioned ballot is the same as for an
absentee ballot.
MS. FENUMIAI read questions 6 and 6a: [Original punctuation
provided.]
6. What steps is the Division taking to increase the
availability of early in-person voting?
a. What is the number of early voting
locations state-wide?
MS. FENUMIAI stated that there are eight true early voting
locations: two in Juneau, two in Anchorage, one in Wasilla, one
in Palmer for Districts 7-12, one in Fairbanks, and one in Nome.
The University of Alaska Anchorage and the University of Alaska
Fairbanks will also have early voting locations open on November
ndrd
2 and 3.
MS. FENUMIAI read question 6b: [Original punctuation provided.]
6.b. What is the relationship if any, between the
number and location of early voting locations in
Alaska and settlement of the earlier lawsuit
about voting options in rural Alaska?
MS. FENUMIAI advised that all other early voting locations are
conducted as absentee in-person voting.
1:24:20 PM
CHAIR CLAMAN asked what the difference is between early in-
person voting and absentee in-person voting.
MS. FENUMIAI explained that early voting typically takes place
in a regional elections office. However, the division may also
designate other locations where elections officials have access
to the statewide voter registration system and are able to print
early voting certificates that voters sign to verify that the
information on the certificate is accurate. The voter can then
vote a ballot and no further review of that ballot is needed.
MS. FENUMIAI continued to explain that absentee in-person voting
is usually conducted in single-site districts where ballots for
just one district are available and just one or two voting
officials are onsite. The voter must complete an absentee in-
person oath and affidavit envelope. The voter votes the ballot
for the district, it is sealed in the envelope, and the ballots
are returned to the division. Once the division receives the
ballots, they are batched and logged and later reviewed by the
absentee voter review board to determine the voters' eligibility
to cast that ballot.
CHAIR CLAMAN asked her to respond to the question about the
lawsuit.
1:27:01 PM
MS. FENUMIAI answered that there was a significant push in 2014
to increase the number of absentee in-person voting locations
statewide. Since then, the division has reached out to
communities each year to solicit continuing and new interest in
having an absentee in-person voting location in the community.
She noted that a new location was added this year at the Cook
Inlet Tribal Corporation building. It will be an absentee in-
person location that will have ballots for all 40 House
districts.
1:28:12 PM
CHAIR CLAMAN asked her to speak to the Native American Rights
Fund lawsuit regarding the number of towns, particularly in
rural Alaska, that have absentee in-person voting locations. He
specifically asked how many locations were added and about the
efforts to maintain those locations.
1:28:37 PM
MS. FENUMIAI said she would defer to Cori Mills with the
Department of Law because she didn't recall that the settlement
required a specific number of locations. She added that she
would do some research and follow up with her findings.
CHAIR CLAMAN asked how many absentee in-person voting locations
are outside of Anchorage.
1:29:22 PM
MS. FENIUMIAI estimated that there are about 140 and said she
would follow up with the exact number.
1:29:41 PM
MS. FENUMIAI read question 7: [Original punctuation provided.]
7. How long has Alaska counted absentee ballots after
election day and what is the reason to count ballots
after election day?
MS. FENUMIAI said the process began with the 2008 general
election and continued through the 2014 general election. It was
reimplemented with the 2020 primary election to ensure that no
voter has more than one ballot counted in an election. Once the
division receives and processes the in-person precinct
registers, they will run duplicate voter reports and pull any
absentee or question ballots of voters who might also have voted
at the polls on Election Day.
1:30:47 PM
CHAIR CLAMAN offered his understanding that Alaska has long had
the statutory requirement to continue to count absentee ballots
post-election as they arrive in the mail. He asked if there was
a statutory change in 2008 and if that was the practice for many
years prior to 2008.
MS. FENUMIAI replied there is no statutory requirement for when
the division can start counting ballots, when the review boards
begin, or how long the ballots must be received.
CHAIR CLAMAN said he included the question because discussion on
the national level has suggested that states should not count
any ballots that arrive after Election Day. He offered his
understanding that Alaska has long counted ballots that arrive
after the election as long as they are postmarked by Election
Day.
MS. FENUMIAI replied state law provides that ballots in a
general election that are postmarked by Election Day and
determined eligible can be counted up until 10 days after
November 3 and 15 days after if postmarked outside the United
States.
1:32:19 PM
CHAIR CLAMAN asked if she knew when the law took effect.
MS. FENUMIAI replied she would have to do some research before
answering.
1:32:47 PM
MS. FENUMIAI turned to question 8 that read as follows:
8. Why did the community of Mertarvik not receive
primary ballots?
MS. FENUMIAI suggested that members refer to the October 12,
2020 letter that she sent to Senator Olson and distributed to
all members of the legislature. In summary, it said that on
August 7, 2020 the division sent a letter to every voter in
Newtok with information about absentee voting and informed them
that the division had no [election] workers and that they did
not know about the relocation until two weeks before the
election.
MS. FENUMIAI said the Region IV Elections Office received a
verbal report the day before the election that a community
member was willing to travel between [Newtok and Mertarvik] to
give people an opportunity to vote absentee in person. That did
not happen, but the division didn't learn that until the day
after the election. Ballots were only available in the precinct
the division was aware of, which was the community of Newtok.
1:34:05 PM
MS. FENUMIAI read question 8a: [Original punctuation
provided.]
8.a. How is the Division addressing this issue in
Mertarvik for the general election?
MS. FENUMIAI said an absentee voting official in Mertarvik will
th
start working on Tuesday, November 20 at the Pioneer School and
there will be a precinct for Election Day voting in Newtok.
Right now, there are two election workers and the division is
looking for more.
MS. FENUMIAI read question 8b: [Original punctuation provided.]
8.b. If there is potential for this issue to arise in
other communities for the general election, how
is the Division addressing this potential issue?
MS. FENUMIAI said election worker recruitment has always been
problematic. Today, the division has an adequate workforce in
most areas but is still working to secure workers in Clark's
Point, Sleetmute, Deering, and Wainwright. Voters in these
communities were informed this week of their voting options,
sent an absentee by-mail application, and asked to become an
election worker. She said the division is continuing to work
with the cities, tribes, and Native corporations to find workers
in those communities.
1:35:50 PM
MS. FENUMIAI deferred question 9 to Cori Mills with the
Department of Law, and read question 10: [Original punctuation
provided.]
10. How is the Division planning to spend federal
pandemic relief funds specific to the general
election?
MS. FENUMIAI recounted that the division has: hired additional
personnel in the regional offices to help procure and mail PPE
(personal protective equipment); hired additional staff in the
absentee office to process the record number of absentee
applications and send ballots to voters who timely applied;
procured additional office space to allow adequate social
distancing of staff and boards; and increased ballots, by-mail
ballot materials, and PPE of various sorts for the precincts.
1:37:07 PM
MS. FENUMIAI read question 10a:
10.a. Is there an option to have pre-paid postage for
ballot return envelopes?
MS. FENUMIAI answered no; the envelopes for the 2020 election
have already been printed. Because they are a specialty envelope
that is not easily reprinted, it would not be possible to
reprint them with pre-paid postage just 17 days before the
general election.
1:37:42 PM
MS. FENUMIAI turned to the next section regarding communications
with the public and read question 11a: [Original punctuation
provided.]
11.a. Has the Division hired additional staff to do voter
communication?
MS. FENUMIAI replied the division hired a communications manager
during the summer to help get messages out to the public. She
said that has been successful.
1:38:01 PM
MS. FENUMIAI read question 11b: [Original punctuation provided.]
11.b. What steps is the Division taking to ensure
transparency and knowledge about changes in
election administration and oversight?
MS. FENUMIAI recounted that the division keeps its website
updated, extensively uses social media, and regularly
communicates with the press through a special press email
account.
1:38:33 PM
MS. FENUMIAI read questions 12 and 12a: [Original punctuation
provided.]
12. How is the Division communicating information to
let voters know that:
a. The USPS will deliver their ballot to the
Division of Elections, even if it has
insufficient postage.
MS. FENUMIAI said the division has heard that it may be USPS
policy to deliver ballots that have insufficient postage but it
is up to that agency to notify voters if this really is their
policy.
1:39:18 PM
MS. FENUMIAI read question 12b: [Original punctuation provided.]
12.b. Witness signatures are no longer required.
square4 How many absentee ballots did the
Division reject for lacking the
witness signature in the primary
election?
MS. FENUMIAI advised that the division rejected 458 absentee
primary election ballots for witnessing in the first round of
review. She added that it is not clear how many of these ballots
may have been rejected for other reasons.
1:39:46 PM
MS. FENUMIAI read question 13: [Original punctuation provided.]
13. During the primary election what COVID-19
protection measures did the Division implement
(masks, social distancing,
handwashing/sanitizer, etc.) to protect
election workers, volunteers, and observers as
they monitored poll stations and counted
ballots?
MS. FENUMIAI said the division provided a significant supply of
PPE, including masks, face shields, gloves, hand sanitizer, and
disinfectant cleaning supplies. Furthermore, the division
enforced social distancing, provided signs in polling stations
encouraging votes to wear masks, and required all election
workers and staff to wear masks.
1:40:28 PM
MS. FENUMIAI read question 13a: [Original punctuation provided.]
13.a. Will the Division employ the same procedures
for the 2020 general election?
MS. FENUMIAI answered, "Yes we will." and continued to question
13b: [Original punctuation provided.]
13.b. Will the Division employ any additional
procedures for the 2020 general election?
MS. FENUMIAI advised that the division is following the CDC
recommendations, just as it did for the primary election. Masks
are available for voters and they are encouraged to use them.
1:40:56 PM
MS. FENUMIAI read statement 14 and question 14a: [Original
punctuation provided.]
14. The Division has historically allowed observers
to watch the counting of absentee ballots.
a. Why didn't the Division allow for in-
person or virtual ballot count observers
following the primary election?
MS. FENUMIAI said observers were present for the primary
election in the Region II and Region III offices. The division
did not ban observers in other locations, but made it clear that
due to COVID-19 it was not possible to have the volume of
observes as in past elections.
1:41:25 PM
MS. FENUMIAI read question 14b: [Original punctuation provided.]
14.b. Will the Division allow in-person or virtual
ballot count observers following the general
election? If not, why?
MS. FENUMIAI explained that the division notified the different
parties and ballot measure groups of the estimated number of
observers who could watch the review at any one time in each of
the regional offices. The division is working with each party
and group to try to accommodate their numbers. She said
[absentee ballot] vote reviewing will not be available because
the absentee ballot envelopes contain personally identifiable
information and voter secrecy and privacy must be maintained.
Nor is there space onsite for a separate viewing room where the
division could track who is observing. She said the review
cannot be held in just any location because the ballots must be
secured and transporting batches of ballots from one location to
another is problematic.
1:43:22 PM
CHAIR CLAMAN asked the members if they had questions for Ms.
Fenumiai.
REPRESENTATIVE KOPP referenced question 8, and commented that
"It is striking" that it wasn't common knowledge throughout the
division that the community of Newtok was relocating to
Mertarvik since the process started in 2017. He pointed out the
significant number of articles, particularly in 2019, that have
documented the process. He asked how the division can prevent
such an information breakdown from occurring in the future
because it speaks directly to the perception in rural Alaska
that they don't matter.
1:45:56 PM
MS. FENUMIAI restated that the division did not have any
knowledge of the matter until two weeks before the election. She
said nobody in Newtok brought the relocation to the division's
attention, even during recruitment. She added that the division
can certainly do better and will check with the Division of
Community and Regional Affairs and reach out to the regional
Native corporations asking to be kept abreast of this type of
situation in the future.
1:46:53 PM
CHAIR CLAMAN noted that Senator Gray-Jackson, Senator Begich,
Representative Edgmon, and Representative Spohnholz were present
via teleconference.
1:47:39 PM
CHAIR COGHILL referenced question 1, and asked if staffing was
sufficient to handle the volume of absentee ballots.
MS. FENUMIAI replied the division added 15 new staff in the
absentee office to ensure timely processing of absentee
applications and enlisted the services of a vendor to help
process the increased mailings. She said the regional offices
also have increased the size of their review boards so more
ballots can be reviewed at one time. Thus, meeting the statutory
deadline to process all ballots should not be a problem.
1:49:28 PM
CHAIR COGHILL asked if there were any glitches with the new in-
person voting machines.
MS. FENUMIAI replied the equipment was used for the first time
in the primary election and it worked very well. Several
recounts were conducted and the results exactly matched the
Election Day numbers.
CHAIR CLAMEN noted that Senator Hughes joined the committee via
teleconference soon after the meeting convened and
Representative Hannan was also listening.
1:51:00 PM
SENATOR MICCICHE asked if the division initiated extra steps to
ensure [absentee] ballot integrity when the requirement for a
witness signature was dropped.
MS. FENUMIAI replied the division still requires each voter to
provide a signature and unique identifier on the voter envelope.
There is also a validation process in the absentee office to
ensure that the voter is a valid voter and eligible to receive a
ballot.
1:52:10 PM
CHAIR CLAMAN asked if there are procedures for a candidate to
challenge a voter, suggesting they no longer reside in the
district.
MS. FENUMIAI replied any ballot can be challenged for any reason
during the review process.
1:52:44 PM
REPRESENTATIVE VANCE asked for a description of the personal
identifiers on the ballot envelope and if there is any
indication of party affiliation.
1:53:04 PM
MS. FENUMIAI replied the voter provides their signature and a
personal identifier such as voter number, date of birth, last
four digits of their Social Security number, or driver's license
number on the ballot envelope that has a sealed security flap to
conceal that information. She said she didn't recall whether or
not party affiliation is included on the envelope.
1:53:49 PM
REPRESENTATIVE VANCE asked what responsibility the voter has to
notify the division of a change of address and what
responsibility the division has to track that information.
MS. FENUMIAI replied it is solely the voter's responsibility to
notify the Division of Elections about a change of residence or
mailing address. The division has no authority to research or
investigate the accuracy of voter addresses.
1:54:51 PM
REPRESENTATIVE LEDOUX said her question is a follow-up to an
earlier response that a vote may be challenged for any reason
during the absentee review process. She asked if a ballot [cast
at a precinct on Election Day] can be challenged on a residency
basis.
MS. FENUMIAI answered that someone who is in the precinct at the
time the ballot is cast may challenge a ballot based on
residency.
1:56:24 PM
SENATOR KIEHL asked for a brief description of the security of
drop boxes, how often the division empties them, and if they are
secure against vandalism.
MS. FENUMIAI replied the drop boxes are relatively secure from
being casually moved because they are extremely heavy. Each box
is locked with a security lock and has a fire-suppressant
inside. The boxes are checked every morning and evening by two
people who log the time of pickup, the number of ballots picked
up, what the security seal is on arrival, and what new security
seal is placed on the box before departure.
1:57:44 PM
SENATOR KIEHL referred to question 10, and asked for more detail
on how much of the federal pandemic relief money the division
has spent, how much is obligated, and the plans to spend what
money remains.
1:58:25 PM
MS. FENUMIAI said she would have to follow up with the
information.
1:58:33 PM
CHAIR CLAMAN asked her to send the follow-up data to both his
and Senator Coghill's offices and they would distribute the
information to the committees.
MS. FENUMIAI agreed to do so.
1:58:43 PM
SENATOR KIEHL referenced question 14 and the earlier statement
that it isn't a good idea to move ballots and registers from one
community to another. He recalled a 2020 election in which large
numbers of write-in votes from all over the state were counted
in one large room. He further noted that recounts are often
conducted at election headquarters, and asked why it would be
different in this election if there were some reason to count
significant numbers of ballots with the appropriate number of
observers appropriately distanced.
MS. FENUMIAI clarified that her comments were directed to the
review process, not the counting process. She explained that
each regional office has a district absentee review board to
review the ballots specific to the House districts within a
particular region's jurisdiction. The ballot reviews require
access to the voter registration database, and while a 2010
recount did take place in a large warehouse on Thane Road [in
Juneau,] that is not the preferred scenario. The division has
since secured additional space in Juneau and MatSu and the
absentee review board in Region II now has a larger room to
accommodate more observers when ballots are reviewed.
2:00:55 PM
SENATOR KIEHL asked if she thinks the division has the capacity
and space to get the ballots counted and reviewed, with
appropriate observers, for the upcoming election cycle.
MS. FENUMIAI replied the division is working hard to make the
process open and transparent while being cognizant that the
review board members have to feel it is safe to be present. If
they don't feel safe, that jeopardizes completion of the
process. She reiterated that the division has expanded the
spaces and is working with all parties and groups to accommodate
observers.
2:02:37 PM
CHAIR CLAMAN offered his understanding that in-person observers
were not allowed when primary ballots were counted. He asked if
the division would accommodate observers from an unaffiliated
candidate's campaign to observe ballot counting during the
general election.
2:03:20 PM
MS. FENUMIAI replied observers typically are present during
ballot review, but not when ballots go through the scanner and
are counted. She clarified that she had been talking about the
actual ballot review by the ballot review boards. When the
bipartisan regional counting board scans the ballots, people
typically observe this from a distance. But when ballot review
takes place, people have to be close together to look at
envelopes and reports and hear what is being said.
CHAIR CLAMAN asked if an independent candidate would be allowed
to observe when ballots from their district are being reviewed.
MS. FENUMIAI answered that certain statutory provisions allow
candidates not represented by a party to be present during
ballot review.
2:05:20 PM
CHAIR CLAMAN asked if it is the division's position that the
Democratic and Republican parties can have someone present, but
the individual candidates do not have a right to be present
during ballot review for their particular district.
MS. FENUMIAI replied the division is trying to resolve that
issue, but it would be difficult in all situations. For example,
a District 1 review with Republican, Democratic, and Independent
candidates would account for six observers. She said that takes
up a lot of space when there are four other teams reviewing
ballots and the room can only accommodate 20 people. She said
it's difficult to accommodate people while keeping everyone safe
and ensuring the process is transparent, but the division is
working to that end.
2:07:16 PM
REPRESENTATIVE LEDOUX posited that most elections aren't that
close. She asked if the division couldn't solve some of the
problems by counting the close elections separately.
MS. FENUMIAI replied that is dependent on locating additional
space and allowing the regional supervisor to manage the
process. Also, it's difficult to allocate a specific activity to
a particular room
2:08:18 PM
REPRESENTATIVE LEDOUX asked whether the statute requires the
division to allow each candidate to have observers.
MS. FENUMIAI deferred the question to Cori Mills with the
Department of Law.
2:08:41 PM
CORI MILLS, Assistant Attorney General, Civil Division, Labor
and State Affairs Section, Department of Law, Juneau, Alaska,
explained that under AS 15.10.170, the Division of Elections is
required to allow poll watchers. The division historically has
interpreted that language to apply to Election Day poll
watchers. The statute talks about who can appoint a poll watcher
and the identification the person must provide in order to watch
the counting in a particular precinct. That statute does not
address the absentee review process which is when observers
become part of the process.
MS. MILLS stated that the absentee review process requires an
absentee ballot review board to have bipartisan representation
when a review is conducted. She said there is no statutory
requirement for candidates or political parties to be present
during a recount, but people are allowed to challenge if they
are present. She agreed with Ms. Fenumiai that the division
historically has allowed this and is trying to accommodate it in
the upcoming election.
MS. MILLS further advised that AS 15.10.170 states that
individual candidates who are nominated by parties for the
general election must work with their political party to
determine who will be a poll watcher. They do not have a right
in and of themselves to have a poll watcher.
MS. MILLS continued to state the following:
The primary is different, of course, because at that
point you don't have nominees. But it's only the
political party that can appoint a poll watcher, and
all of their candidates that are nominated by that
party have to work with the party on that. If you are
a no-party candidate, that is different and you get
your own poll watcher, again, under AS 15.10.170.
2:11:29 PM
REPRESENTATIVE LEDOUX asked if every candidate is allowed to
appoint a poll watcher during a primary election. She further
asked if the political parties play a role in selecting poll
watchers during the primary.
MS. MILLS read the first sentence of AS 15.10.170(a) that says a
political party is covered by any election. It reads as follows:
Sec. 15.10.170. Appointment and privileges of
watchers.
(a) The precinct party committee, where an organized
precinct committee exists, or the party district
committee where no organized precinct committee
exists, or the state party chairperson where neither a
precinct nor a party district committee exists, may
appoint one or more persons as watchers in each
precinct and counting center for any election.
REPRESENTATIVE LEDOUX indicated that she had a follow-up
question.
CHAIR CLAMAN said he wanted Ms. Mills to proceed with her
presentation, starting with the history of voter fraud in
Alaska.
2:13:21 PM
MS. MILLS referred to Chair Claman's earlier question about the
lawsuit regarding the number of absentee in-person voting
locations in rural areas and explained that Toyukak v. Treadwell
was about language assistance under Section [203] of the Voting
Rights Act. The only reference to absentee voting, other than to
make sure that oral translations were available, was to
permanent absentee voting. That is conducting voting entirely by
absentee by-mail with no option for in-person voting. She said
the only reference to permanent absentee voting in the
settlement was that the plaintiffs had to be notified if
permanent absentee voting was ever set up in their census areas
within the settlement timeframe. She posited that that is
because the preference in most of rural Alaska is to have in-
person voting locations rather than by-mail elections. She
offered to do follow up if the committees wanted more
information.
CHAIR CLAMAN said he would like more information because he
understood that the settlement included specific numbers for
early voting locations.
MS. MILLS replied she was happy to follow up and that perhaps a
case other than Toyukak may have been involved.
2:15:30 PM
MS. MILLS turned to question 4 regarding the history of voter
fraud in Alaska and advised that Kaci Schroeder, the Criminal
Division legislative liaison, and John Skidmore, the deputy
attorney general, would follow up with this history. Neither
were available to talk to the committee today. She noted that
most of the irregularities that were caught in the 2018 election
were caught in the absentee ballot application part of the
process. Those were flagged for the division to follow up and
criminal charges are pending in some of those cases.
CHAIR CLAMAN said he sent a question to the Department of Law
yesterday about the Heritage Foundation website that identified
three cases since 2000 that had convictions for voter fraud. He
asked if it was her understanding that those were the only cases
of voter fraud at the present time.
2:17:56 PM
MS. MILLS answered yes.
CHAIR CLAMAN asked her to respond to question 9.
MS. MILLS said she would discuss four lawsuits, all of which are
preliminary injunction cases. The only matter that has been
decided is whether the court should halt some process in this
election and later make a final determination on the merits. The
only case that has changed the election rules is the witness
ballot case. The court declined to issue any change to the
election in the other three cases. The superior court decided
one of the cases yesterday and it is in the appeal period. That
is the only case of the four that is outstanding for the 2020
election.
2:20:25 PM
MS. MILLS addressed question 9.a. that read as follows:
9. The status of the three existing 2020 lawsuits
related to the general election:
a. Mailing of absentee ballot applications to
seniors.
She explained that the Disability Law Center v. Meier is a
federal case in which the plaintiffs asserted that the Division
of Elections needed to send by-mail absentee ballot applications
to every registered voter instead of just those voters age 65
and older, as the lieutenant governor had directed. The federal
district court declined to grant the injunction and the
emergency appeal to the Ninth Circuit Court of Appeals was also
refused. The issue is decided for the 2020 election, so all
voters younger than age 65 who want to vote absentee by-mail
must request an application to do so. She listed the different
ways that voters can make the request.
2:22:30 PM
MS. MILLS addressed question 9.b. about the status of an
existing 2020 general election lawsuit. It read as follows:
9.b. Party identification on the general election
ballot.
MS. MILLS explained that the issue in the case of Galvin v.
State was whether the Division of Elections violated either
statute or the state constitution by not listing a
candidate's voter registration affiliation on the general
election ballot. The candidates instead are listed by name
and the political party that nominated them. No-party
candidates who are petition nominees are listed by name and
"petition nominee" as the affiliation.
The Alaska Superior Court denied the request to have the
Division of Elections reprint the election ballots with the
candidates' voter affiliation added. The court findings were
that there may be substantial and serious legal questions about
whether the statute was followed, but the plaintiffs did not
show probable success on the merits. The court denied the
injunction saying that agreeing with the plaintiff would impose
a severe burden on the Division of Elections. The Alaska Supreme
Court upheld the lower court's finding on appeal based on the
standard that the lower court did not abuse its discretion in
finding that a preliminary injunction should not issue. She
noted that the majority of the argument is about the statute.
She said this is an existing question and pending case that the
plaintiff could ask the court to address post-election to
determine the underlying legal merits of the claim.
2:25:11 PM
MS. MILLS addressed question 9.c. about the status of an
existing 2020 general election lawsuit. It read as follows:
9.c. Second signature requirement for absentee
ballots.
MS. MILLS explained that the Arctic Village Council v. Meyer
case addressed the issue of whether the witnessing requirement
for absentee ballots was unconstitutional under the specific
circumstance of the existing COVID-19 pandemic. The argument was
not that the witness requirement is unconstitutional under any
circumstances; the question was whether the pandemic changed
that analysis.
She said the Alaska Superior Court holding, which the Alaska
Supreme Court upheld, was to grant the preliminary injunction on
the grounds that the plaintiffs had shown probable success on
the merits. That is that the pandemic has made the witnessing
requirements a severe burden on the right to vote that was not
justified by the state's interest in integrity and trust in the
election. The court struck down the witnessing requirements in
just this very narrow circumstance. She said the state will go
back to court in December for a status conference to see if the
plaintiffs think there are any remaining issues post-election.
2:27:25 PM
MS. MILLS addressed question 9.d. related to the status of an
existing 2020 general election lawsuit. It read as follows:
9.d. Any 2020 lawsuits that are not listed above.
MS. MILLS said the last lawsuit she would discuss is Alaska
Center for Education Fund v. Fenumiai. The legal question in
this state court case is whether it is unconstitutional for the
Division of Elections to prevent voters from curing any
deficiencies on their absentee ballot before the election is
certified. This would include the lack of voter signature or
identifier and the lack of witnessing if witnessing is found
enforceable. She noted that the statute currently provides that
the voter is informed post-election that their ballot was not
counted and for what reason.
She related that the superior court yesterday denied the
plaintiff's request to have the Division of Elections develop a
new cure process for the 2020 election. The ruling from the
bench was that the request was not justified. The primary
grounds for the rejection was that this was a policy question
for the legislature. The case could be appealed before the
election or after because this is an open question that is not
dependent on the pandemic. The issue could be decided more fully
post-election with evidentiary hearings.
2:29:31 PM
CHAIR CLAMAN asked if any members had questions for Ms. Mills.
2:29:59 PM
SENATOR KIEHL asked if anything in statute or regulation
prevents the state, either itself or in partnership with a non-
partisan group, from contacting a voter and providing an
opportunity to cure a problem with their absentee ballot.
MS. MILLS replied that was one of the arguments in the case and
the state's position was that the statutes don't provide for
that. The voter certificate is signed and cannot be changed
after that.
2:32:01 PM
SENATOR ELVI GRAY-JACKSON, Alaska State Legislature, Juneau,
Alaska, referred to a letter she received from Lieutenant
Governor Meyer advising her that a ballot drop box would be
placed at Clark Middle School in Anchorage today. She asked Ms.
Fenumiai if that already happened or if it would happen sometime
today.
MS. FENUMIAI answered that the drop box was put in place
yesterday.
CHAIR CLAMAN suggested that she update the division's website to
reflect that Cook Inlet Tribal Council is open for in-person
absentee voting on Monday through Saturday. The site currently
shows just Monday through Friday.
MS. FENUMIAI said she asked staff to update the site this
morning and she would follow up to make certain it happened.
2:33:07 PM
SENATOR TOM BEGICH, Alaska State Legislature, Juneau, Alaska,
said he requested an absentee ballot earlier and now has decided
to vote absentee in person. He asked if he should take his
absentee by-mail ballot when he goes to vote tomorrow so he
doesn't have to vote a question ballot.
MS. FENUMIAI answered that he would not need to vote a question
ballot. The division asks people in this situation to destroy
their absentee by-mail ballot at home and then proceed to vote
at an early voting location or their precinct on Election Day.
2:33:53 PM
MS. MILLS added that anybody who has posted their voted absentee
ballot should not vote again, either early or on Election Day.
2:34:35 PM
CHAIR CLAMAN closed invited testimony
CHAIR CLAMAN said he wanted to take a moment of personal
privilege to thank Senator Coghill for his long service to the
state in both the House and Senate. "I like to think of him both
as a man of his community, a man of the people, [and] a man of
Alaska." He noted that Senator Coghill would also like to remind
him that he thinks of himself as a man of God. He said he's also
a friend. They put their political differences aside and focus
on what is good for Alaska. "I really can't say enough about how
much respect I have for the work that he has done over the time
that I've been in the legislature - the guidance you've given
me, the mentoring, and the friendship."
2:36:12 PM
CHAIR COGHILL replied, "Thank you; it's been a privilege serving
with all of you and I've enjoyed the friendship."
2:36:17 PM
ADJOURNMENT
There being no further business before the committee, the House
and Senate Judiciary Standing Committees meeting was adjourned
at 2:36 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| Topics and Questions for Joint Judiciary Committee Meeting on Oct 16, 2020.pdf |
HJUD 10/16/2020 1:00:00 PM |