Legislature(2009 - 2010)BELTZ 105 (TSBldg)
02/19/2010 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| SB257 | |
| SB252 | |
| SB92 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 92 | TELECONFERENCED | |
| *+ | SB 257 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | SB 252 | ||
ALASKA STATE LEGISLATURE
SENATE JUDICIARY STANDING COMMITTEE
February 19, 2010
1:30 p.m.
MEMBERS PRESENT
Senator Hollis French, Chair
Senator Bill Wielechowski, Vice Chair
Senator Dennis Egan
Senator John Coghill
MEMBERS ABSENT
Senator Lesil McGuire
COMMITTEE CALENDAR
SENATE BILL NO. 252
"An Act relating to the crime of failure to appear; relating to
arrest for violating certain conditions of release; relating to
release before trial, before sentence, and pending appeal;
relating to material witnesses; relating to temporary release;
relating to release on a petition to revoke probation; relating
to the first appearance before a judicial officer after arrest;
relating to service of process for domestic violence protective
orders; making conforming amendments; amending Rules 5 and 41,
Alaska Rules of Criminal Procedure, and Rules 206 and 603,
Alaska Rules of Appellate Procedure; and providing for an
effective date."
- HEARD AND HELD
SENATE BILL NO. 257
"An Act relating to funding for youth courts; and relating to
accounting for criminal fines."
- HEARD AND HELD
SENATE BILL NO. 92
"An Act ratifying an interstate compact to elect the President
and Vice-President of the United States by national popular
vote; and making related changes to statutes applicable to the
selection by voters of electors for candidates for President and
Vice- President of the United States and to the duties of those
electors."
- HEARD AND HELD
PREVIOUS COMMITTEE ACTION
BILL: SB 252
SHORT TITLE: FAILURE TO APPEAR; RELEASE PROCEDURES
SPONSOR(s): RULES BY REQUEST OF THE GOVERNOR
02/03/10 (S) READ THE FIRST TIME - REFERRALS
02/03/10 (S) JUD
02/12/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/12/10 (S) <Bill Hearing Postponed>
02/15/10 (S) JUD AT 1:30 PM BELTZ 105 (TSBldg)
02/15/10 (S) Scheduled But Not Heard
BILL: SB 257
SHORT TITLE: YOUTH COURTS AND CRIMINAL FINES
SPONSOR(s): SENATOR(s) EGAN
02/05/10 (S) READ THE FIRST TIME - REFERRALS
02/05/10 (S) JUD, FIN
BILL: SB 92
SHORT TITLE: U.S. PRESIDENTIAL ELECTION COMPACT
SPONSOR(s): DAVIS
02/02/09 (S) READ THE FIRST TIME - REFERRALS
02/02/09 (S) STA, JUD, FIN
02/02/10 (S) STA AT 9:00 AM BELTZ 105 (TSBldg)
02/02/10 (S) Moved SB 92 Out of Committee
02/02/10 (S) MINUTE(STA)
02/03/10 (S) STA RPT 3DP 2NR
02/03/10 (S) DP: MENARD, FRENCH, KOOKESH
02/03/10 (S) NR: MEYER, PASKVAN
WITNESS REGISTER
JESSE KIEHL, staff
to Senator Dennis Egan
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Presented information on SB 257 on behalf
of the sponsor.
SETH RICKY, Advocate
Juneau Youth Court
POSITION STATEMENT: Testified in support of SB 257.
MEGAN STANGELAND, Advocate
Juneau Youth Court
POSITION STATEMENT: Testified in support of SB 257.
SUSAN MCLEAN, Director
Criminal Division
Department of Law (DOL)
Anchorage, AK
POSITION STATEMENT: Provided a sectional analysis of SB 252.
SENATOR BETTYE DAVIS
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Sponsor of SB 92.
QUINN KENDALL, Intern
to Senator Davis
Alaska State Legislature
Juneau, AK
POSITION STATEMENT: Presented SB 92 on behalf of the sponsor.
TRENT ENGLAND, Director
Save our States (SOS) Project
POSITION STATEMENT: Testified in opposition to SB 92.
JOHN KOZA, Chair
National Popular Vote
POSITION STATEMENT: Testified in support of SB 92.
ROBERT M. HARDAWAY, Professor of Law
University of Denver
Sturm College of Law
POSITION STATEMENT: Testified in opposition to SB 92.
JAMES GILLES, representing himself
Bird Creek, AK
POSITION STATEMENT: Testified in support of SB 92.
JOSEPH F. ZIMMERMAN, Professor of Science
Rockefeller College
State University of New York
Albany, N.Y.
POSITION STATEMENT: Testified in support of SB 92.
DEBBIE JOSLIN, President
Eagle Forum Alaska
Delta Junction, AK
POSITION STATEMENT: Testified in opposition to SB 92.
BARRY F. FADEM, President
National Popular
POSITION STATEMENT: Testified in support of SB 92.
TARA ROSS, representing herself
POSITION STATEMENT: Testified in support of SB 92.
GINNY ESPENSHADE
Anchorage Youth Court
Homer, AK
POSITION STATEMENT: Available to answer question on SB 257.
ACTION NARRATIVE
1:30:06 PM
CHAIR HOLLIS FRENCH called the Senate Judiciary Standing
Committee meeting to order at 1:30 p.m. Senators Coghill, Egan,
and French were present at the call to order. Senator
Wielechowski joined the meeting soon thereafter.
SB 257-YOUTH COURTS AND CRIMINAL FINES
1:31:11 PM
CHAIR FRENCH announced the consideration of SB 257.
SENATOR DENNIS EGAN, sponsor of SB 257, Alaska State
Legislature, explained that SB 257 will provide a sustainable
source of funding for Alaska youth courts. He explained that
young people who are picked up for misdemeanor violations and
alcohol offenses receive a trial by their peers. These courts
work; less that 10 percent of juveniles that go through this
program reoffend, he said. This saves money in the long run and
is beneficial to young people because they receive real
attention and real consequences when they might otherwise not
get a hard look. He noted that highly trained youth corrections
resources are available for hard cases. Another benefit is that
youth volunteers receive training in the basics of criminal law,
research, writing, and public speaking. He highlighted that a
portion of the funding comes from criminal fines, which makes
sense.
JESSE KIEHL, staff to Senator Dennis Egan, Alaska State
Legislature noted that the sponsor statement understates the
recidivism rate for youth court participants. It is 10.6 percent
statewide.
1:34:04 PM
SENATOR WIELECHOWSKI joined the committee.
SENATOR COGHILL asked if youth court fines are limited to a
certain level.
MR. KIEHL explained that youth courts don't levy fines, but they
can assess restitution for offenses. The fines addressed in the
bill are those that are assessed by judges against defendants in
the traditional justice system.
CHAIR FRENCH asked Mr. Kiehl to remind the committee about where
the fines will come from, who will assess the fines, and how
much might be collected.
MR. KIEHL said that Alaska Court System judges assess fines
against criminal defendants and the court system estimates that
the total fines it collects each year amount to approximately $5
million statewide. SB 257 would empower the Legislature to
account for the fines with a designation and appropriate up to
[25 percent] for youth courts. Mr. Kiehl noted that he looks
forward to determining how much is actually needed as the bill
moves through the committee process.
1:36:55 PM
SETH RICKY, Advocate, Juneau Youth Court, said he's been a
participant in the court program since last year. He attributes
the program to helping him become a better public speaker and
feels it has prepared him to pursue a career path within the
American justice system. It's also been a valuable experience to
see the change students undergo when they've gone through the
system. I truly believe that youth court gives kids a second
chance after they've made a bad decision, he said. Peer
administered justice is similar to receiving counseling. The
program shows what teenagers are capable of doing, Mr. Ricky
concluded.
CHAIR FRENCH asked if he intends to continue with the program.
MR. RICKY said yes.
1:39:26 PM
MEGAN STANGELAND, Advocate, Juneau Youth Court, described the
youth court program as important, strong, and effective. The
basis is peers helping peers navigate difficult situations. She
agreed with Mr. Ricky about the importance of having students
look to other students as advocates who have taken different
paths and made better decisions. She related that youth courts
are sentencing hearings rather than trial hearings so the
advocates are able to personalize the sentencing to focus on a
youth's interests and strengths to the benefit of the community.
It's a way of giving back to the community that also helps the
youth, she concluded.
CHAIR FRENCH asked which roles she's taken in youth court.
MR. STANGELAND replied she's taken about all the roles including
the bailiff, the judge, the prosecuting attorney, and the
defense attorney.
SENATOR COGHILL asked what instruction advocates receive with
regard to sentencing.
MS. STANGLAND explained that advocates listen to the defendant's
side of the story and to what the defense says about him or her.
After that the defendant is queried about what he or she likes
to do and how this could give back to the community. The
advocates then convene and try to give the defendant meaningful
and relevant community service hours or a creative project that
will help them reflect and make better decisions in the future.
SENATOR COGHILL commented that it sounds like the defendant has
significant input.
MS. STANGLAND replied advocates want their peers to be
successful and to complete their community service hours;
assessing meaningless community service hours benefits no one.
GINNY ESPENSHADE said she is substituting for Sharon Leon, the
Executive Director of the Anchorage Youth Court and is available
to answer questions.
1:43:23 PM
CHAIR FRENCH closed public testimony and held SB 257 in
committee.
At ease from 1:44 p.m. to 1:46 p.m.
SB 252-FAILURE TO APPEAR; RELEASE PROCEDURES
1:46:15 PM
CHAIR FRENCH announced the consideration of SB 252.
SUSAN MCLEAN, Director, Criminal Division, Department of Law
(DOL), said that SB 252 revises the bail statute. Over the past
40 some years it has been added to and has become somewhat
unwieldy and difficult to reference quickly during court
arraignments. The intent is to revise the statutes and enhance
public safety in Alaska and to give voice to the constitutional
amendment giving rights to crime victims.
SB 252 incorporates concepts from federal bail law and adapts
them to Alaska conditions. The bill generally would do the
following:
· Require the person charged with a serious sex offense to
prove that the release conditions before trial will protect
the victim and the public.
· Adopt standards for persons who may be appointed as third-
party custodians for persons who are released on bail.
· Prohibit a person who is found guilty of a serious sex
offense from being released before sentencing or during an
appeal of a conviction.
· Protect victims of domestic violence by setting standards
that the court must find before allowing a perpetrator of
domestic violence to return to the victim's residence.
· Change the time for arraignment from 24 hours to 48 hours.
MS. MCLEAN asked if the committee would like her to do a
sectional analysis.
1:50:01 PM
CHAIR FRENCH replied it would be helpful.
MS. MCLEAN said Section 1 addresses two issues with failure to
appear. First, it moves the crime of failure to appear from
Title 12 to Title 11. It also addresses the problem that was
raised when a second culpable mental state was added to the
crime of failure to appear. This would provide an affirmative
defense that the defendant, due to unforeseeable circumstances
outside his or her control, was prevented from appearing at the
hearing, and that the defendant notified the court orally and in
writing that he or she was unable to appear. The penalties would
be the same as under the current law, except that the bill adds
a violation for failure to appear if the crime charged was a
violation.
Section 2 includes a conforming amendment to AS 12.25.030(b),
which changes the standard for a law enforcement officer to make
an arrest without a warrant in certain cases from "reasonable
cause" to "probable cause" to clarify that the standard in all
cases is probable cause. It also allows an officer to arrest a
person for violations of conditions of release if they have
probable cause to believe that the person has violated
conditions of release. This allows the officer to arrest a
person without a warrant if the violation of conditions of
release is occurring in the officer's presence.
1:52:12 PM
Section 3 adopts a new section, AS 12.20.006, that describes
release procedures for a person charged with a crime. The
procedures are similar to sections of existing law, but the bill
also includes the following:
· Before a third or subsequent bail hearing, the bill
requires 48 hours notice to any surety involved so that
the surety has an opportunity to attend the hearing.
1:53:01 PM
CHAIR FRENCH reviewed page 4, lines 14-16, and asked what the
provision is getting after.
MS. MCLEAN replied it gets at persons who ask for repeated
subsequent bail interview hearings. It requires the person to
articulate what conditions have changed, other than the
inability to make bail, since his or her last bail interview
hearing. This puts a written record before the court of the
person's prior record and what should be considered before the
court determines whether or not a bail hearing should be set.
CHAIR FRENCH noted that the next provision requires at least
seven days notice for a new request and asked if there's a
provision in current law that keeps a person from coming back to
court every day asking for a new bail review.
MS. MCLEAN replied there's very little, but current law does
require the person to state what has changed in their situation
such that their bail should be changed. What typically happens
is that on a daily basis a person says they have a different
third-party custodian. This makes the prosecutors scramble to
find the victim who has a right to be informed of every bail
hearing. Likewise, the court has to schedule a bail hearing on
short notice when it probably already has all the information it
needs to set bail. It's not unreasonable to ask that a person
give seven days notice, she said.
1:56:19 PM
CHAIR FRENCH said the committee will at some point ask Mr.
Wooliver how demanding bail requests are on the court's time.
MS. MCLEAN continued to explain the changes to existing law in
Section 3.
· The bill requires a person being released to sign a release
agreement that describes the terms that the court has set.
· The bill eliminates a current provision that allows a
judicial officer to change, add to, or eliminate
conditions of release at any time. The law already
provides the bail review hearing for making such changes
and the provision sort of leaves the victim in the dark.
They might not be notified and wouldn't have an
opportunity to be heard on the topic.
Section 4 adds new sections that address release before trial
for persons charged with a crime. The proposed AS 12.30.011
adopts standards and conditions for release in general -
including a requirement to obey all laws, appear in court when
ordered, and keep in contact with their attorney. The proposed
AS 12.30.016 adopts standards and conditions for release for
specific crimes. The section is designed to streamline the
procedures for release, and many of the provisions are found in
current law.
1:58:58 PM
CHAIR FRENCH said he's surprised that the drafter didn't choose
to repeal and reenact the provisions rather than adding new
sections.
MS. MCLEAN directed attention to Section 27, which` proposes to
repeal all the discrete conditions of release for different
crimes.
MS. MCCLEAN continued the analysis of Section 4 pointing out
that AS 12.30.011 subsection (d) provides evidentiary burdens
that a court must apply in making a decision about whether to
release a person on bail. The bill proposes a rebuttable
presumption, which may be overcome by a preponderance of
evidence, that no condition or combination of conditions will
assure the defendant's appearance or the safety of the victim
if:
· The person is charged with an unclassified felony, a class
A felony, or a sexual felony;
· The person is charged with a felony and has a previous
conviction for a felony that is less than five years old;
· The offense was committed while the defendant was on
release for another offense; or
· The charge is for a crime involving domestic violence, and
the defendant has been convicted of a crime of domestic
violence within the past five years.
AS 12.30.016 adopts the additional conditions that may be
imposed in particular cases, most of which are found in current
law.
· Subsection (b) provides special conditions for persons
charged with Title 4 violations such as selling alcohol or
bootlegging and charged with drunk driving and refusing to
submit to a breath test. A judicial officer may, for
example, order a person to submit to a breath test when
requested to do so by a law enforcement officer.
· Subsection (c) provides special conditions that may be
imposed on a person charged with a violation of the drug
laws. For example, a person may be prohibited from
entering or remaining in a place where a controlled
substance is being used, manufactured, grown, or
distributed.
· Subsection (d) adopts a mandatory requirement of $250,000
cash bond for a person charged with manufacturing
methamphetamine, unless the defendant proves to the court
that his or her role was only as an aider or abettor and
that they did not stand to gain financially. This is a
provision in current law.
· Subsection (e) adopts specific conditions for a person
charged with stalking when it is not involving domestic
violence. This provision is similar to current law.
· Subsection (f) adopts specific conditions for a person who
is released after having been charged with a sexual
offense. The court may order the defendant to have no
contact with someone under age 18, except that made during
the normal course of business in a public place. The court
is required to notify the victim of the hearing, or make
reasonable efforts to do so, and to consider the victim's
comments when making a release decision. This is in
current law.
2:03:33 PM
Section 5 adopts new standards for the appointment of a third-
party custodian for a person released before trial. The court is
required to ensure that a proposed custodian is physically able
to perform the duties of a custodian, and requires them to
report immediately if the defendant has violated conditions. It
also prohibits a person from acting as a third-party custodian
under certain circumstances, such as being a witness in the
case, having a recent conviction, or having been recently
charged with a crime.
Section 6 attempts to address the issue in the Williams v. State
case relating to general release conditions of a person charged
with a crime involving domestic violence. It contains language
that conforms to the new sections of the bill.
Section 7 is in response to Williams, which held that the
statute prohibiting a person from returning to the home of a
victim was overly broad. That case said that the court could
enter such a prohibition but it must consider specific
conditions. In cases of domestic violence the defendant could
not return to the home of the victim for at least 20 days; the
victim would need to consent to the return; the defendant could
not have a prior conviction for domestic violence; and the
defendant would need to establish by clear and convincing
evidence that his or her return to the residence would not pose
a danger to the victim.
2:05:54 PM
Section 8 rewrites the provision for appeal from conditions of
release, but it does not reenact the current provision that
allows the court to amend the release order at any time. Rather,
it requires the person to follow the procedures adopted for
asking the court to amend conditions of release. The appeal
procedure of the trial court's bail decision is similar to
current law.
Section 9 adds a new section to address the temporary release of
a person for an emergency such as the death of a family member.
This is similar to the current law under AS 12.30.010(a).
Section 10 addresses the release of a person who has been found
guilty but not yet sentenced or whose conviction is being
appealed. It allows the release under the general provisions of
AS 12.30, but the person seeking release is required to
establish by clear and convincing evidence that the release
would reasonably assure the person's appearance and would
reasonably assure the safety of the victim and the community.
The bill would prohibit the release of a person found guilty of
all sexual felonies, and a person found guilty of a class B
felony or class C felony who has been convicted of a felony in
the prior 10 years. This avoids the equal protection of law
problems in Bourdon v. State.
2:08:29 PM
Section 11 makes clarifying changes to the law pertaining to the
release of a material witness who is not responding to a
subpoena to appear; he or she may be arrested. After the witness
has been deposed, he or she may be released under the bail law
unless his or her presence is required at trial.
Section 12 specifies that a person who is in custody with a
petition to revoke probation does not have an automatic right to
be released under AS 12.30, but he or she may seek release. The
bill provides that the probationer must establish by clear and
convincing evidence that conditions on his or her release will
reasonably assure the appearance of the probationer and the
safety of the victims, other persons, and the community.
[Section 13 is a conforming amendment to current law.]
Section 14 clarifies that for purposes of the bail statute, a
conviction occurs at the time a person is found guilty, either
by verdict or by plea.
Sections 15-29 are either definitions or conforming amendments
with the exception of Section 26 that amends Rule 603(b), Alaska
Rules of Appellate Procedure, to clarify that the release of a
person whose conviction is being appealed may be allowed under
the provisions of AS 12.30.
2:10:33 PM
CHAIR FRENCH focused on the new subsection (d) on page 7 that
addresses a person who has been charged with a crime and is
seeking release from jail ahead of trial. He observed that to
some extent the bill tracks the federal bail statutes, but the
U.S. Constitution and the Alaska Constitution articulate the
right to bail differently. Under the Eighth Amendment the right
to bail is a right to be free of excessive bail, whereas the
Alaska Constitution is much more emphatic. It says that a person
has a positive right to be released on bail ahead of trial.
MS. MCLEAN said that's correct provided the victim and the
community will be protected and that the person will appear at
trial.
2:13:49 PM
CHAIR FRENCH asked if she's had occasion to ask for a memo on
this because he foresees potential problems.
MS. MCLEAN offered to provide a memo at the next hearing based
on research that Ms. Carpeneti has done.
2:15:05 PM
CHAIR FRENCH found no further questions and announced he would
hold SB 252 in committee.
SB 92-U.S. PRESIDENTIAL ELECTION COMPACT
2:15:16 PM
CHAIR FRENCH announced the consideration of SB 92.
2:15:37 PM
SENATOR DAVIS, sponsor of SB 92, said her intern would present
the bill.
QUINN KENDALL, Intern to Senator Davis, read the following
sponsor statement for SB 92 into the record:
Under the National Popular Vote Interstate Compact,
electoral votes, which are based on the number of U.S.
representatives and U.S. senators in each state, would
be awarded to the national winner, not the state
winner. The U.S. Constitution gives the states
exclusive and plenary control over the matter of
awarding their electoral votes. The winner-take-all
rule is not in the Constitution. The fact that Maine
and Nebraska award electoral votes by congressional
district, is a reminder that an amendment to the U.S.
Constitution is not required to change the way the
president is elected.
As of January 2010, this interstate compact has been
joined by Hawaii, Illinois, Maryland, New Jersey, and
Washington. Their 61 electoral votes amount to 23
percent of the 270 votes needed for the compact to
take effect. The bill has also passed in one or both
houses in many states and has continued to gain
support nationally.
Because of the current winner-take-all rule, a
candidate can, and has won the presidency without
winning the most popular votes nationwide. This has
occurred in 4 of the nation's 56 presidential
elections (and 1 in 7 of the non-landslide
elections).In 2004, a shift of fewer than 60,000 votes
in Ohio would have defeated President Bush despite his
nationwide lead of 3.5 million votes.
Another shortcoming of the winner-take-all rule is
that presidential candidates have no reason to poll,
visit, advertise or organize in states where they are
comfortably ahead or hopelessly behind. In 2008,
candidates concentrated over two-thirds of their
campaign visits and ad money in just six closely
divided "battleground" states. A total of 98 percent
went to just 15 states. In other words, voters in two-
thirds of the states were essentially spectators to
the election.
Under the National Popular Vote Interstate Compact
bill, all the electoral votes from the enacting states
would be awarded, as a bloc, to the presidential
candidate who receives the most popular votes in all
50 states and Washington D.C. The bill would take
effect only when enacted by possessing a majority of
the electoral votes - that is, enough electoral votes
to elect a president (270 of 538).
2:19:14 PM
MR. KENDALL said that enacting the National Popular Vote
Interstate Compact will increase political efficacy and civic
engagement in Alaska and throughout the U.S.
CHAIR FRENCH posed a hypothetical situation to show that if just
270 electoral votes were committed to the National Popular Vote
system, a candidate could receive a clear electoral majority
despite the fact that within the states that opted for NPV there
was an overwhelming majority for the other candidate. Some folks
are likely to comment on this possibility, he said.
2:22:28 PM
TRENT ENGLAND, Director, Save our States (SOS) Project,
Washington State, said SOS is dedicated to protecting the
institutions of federalism, one of which is the Electoral
College. He relayed that he often analogizes the Electoral
College to the keel on a sailboat. A self-appointed nautical
reformer may decide that the boat would function very well
without a keel. That would only happen until the wind blows, he
said. The Electoral College does two important things; it has a
nationalizing and unifying affect on politics and it has a
moderating affect.
MR. ENGLAND pointed out that all credible candidates and
political parties start campaigning in the states where they
have significant support and later focus on the swing states.
NPV considers this a problem, but the reality is that swing
states draw politics in toward the center for a unifying affect.
Grover Cleveland learned about the moderating affect of the
Electoral College in 1888 when he won the most votes nationwide
and lost the presidency. The NPV would claim he became a poster
child for how terrible the Electoral College is, but the 1884
vote was based on intense regional popularity rather than having
a broad national coalition. In the four years that Mr. Cleveland
was out of the presidency he rebuilt the democratic coalition
and then recaptured the presidency in 1892, winning both the
national popular vote and the electoral vote. If the national
popular vote system had been in existence at the time, the
Democratic Party might never again have become a national party
or the civil rights coalition that it did. That is all owed to
the Electoral College process, he stated.
2:29:47 PM
JOHN KOZA, Chair, National Popular Vote, point out that voters
in two-thirds of the states are totally ignored by presidential
candidates. Candidates spend 98 percent of their time and money
in just 15 states. States like Alaska are simply ignored when
presidential candidates or a sitting president considers issues,
he said.
2:30:43 PM
ROBERT M. HARDAWAY, Professor of Law, University of Denver,
Sturm College of Law, said he is the author of "The Electoral
College and the Constitution: The Case for Preserving
Federalism." He said his comments would center on the particular
problems with "Koza scheme" and whether or not it's a good idea
to do away with the Electoral College. He asked the following
questions: about what would
1. What would happen under the "Koza scheme" if a recount was
required, but just a handful of states engaged in the
recount?
2. Who would decide what the national popular vote is and what
would happen if a national official and a state officer
disagreed on the vote tally?
3. Would Alaska be bound to accept the popular vote tallies
from states whose voting standards violate Alaska public
policy?
4. Which state officer would be empowered to overrule the will
the voters of Alaska and instead allocate votes to the
other candidate?
5. What would happen if some states decided to withdraw from
the [NPV]?
6. What provision is there in the "Koza scheme" for a runoff
election?
7. If "Koza scheme" supporters want to undermine federalism,
wouldn't the first step be to abolish the U.S. Senate since
it is the more violative of the "one man one vote"
principle?
8. Would the Koza supporters claim that the British system was
undemocratic?
MR. HARDAWAY cited the final committee vote in the Colorado
Legislature and noted that once these problems were pointed out,
Colorado did not adopt the National Popular Vote system. He
further pointed out that national recounts would be particularly
problematic because all 50 states would have to participate.
"Multiply the problems we had in Florida by 50 times," he said.
Minorities have testified against NPV because it dilutes their
voting power, particularly in swing states.
MR. HARDAWAY concluded that the most essential feature of the
Electoral College is that it requires broad-based support.
2:37:34 PM
JAMES GILLES, representing himself, Bird Creek, said he believes
that the National Popular Vote is a good way to go. It's a
system that would finally help Alaska.
2:38:39 PM
JOSEPH F. ZIMMERMAN, Professor of Science, Rockefeller College,
State University of New York at Albany, relayed that when the
Electoral College was established, the assumption was that the
electives in each state would vote for the best candidate, but
that's not the way it has worked. This is a nation of majority
rule yet voters are not allowed to vote directly for
presidential and vice-presidential electives. Furthermore, major
candidates only campaign actively in the so-called swing states.
These are democratic deficits. Former U.S. Justice Felix
Frankfurter and James Landis wrote that the U.S. Constitution
encourages creativeness "to devise a variety of legal
alternatives to cope with the diverse forms on interstate
interests." The National Popular Vote proposal is a creative way
to ensure that this nation has majority rule when it comes to
the selection of the president and vice president of the United
States, he stated.
MR. ZIMMERMAN noted that he is the author of about 40 books,
many on federalism and several on interstate compacts.
2:42:21 PM
DEBBIE JOSLIN, President, Eagle Forum Alaska, Delta Junction,
said that as a patriotic Alaska she opposes SB 92 because it
would make the state irrelevant in the election of the president
and vice president. She recognizes that Alaska has just three
electoral votes, but they have far greater influence than they
would under the National Popular Vote system.
2:44:30 PM
BARRY F. FADEM, President, National Popular Vote, said he enjoys
going state to state having discourse on this issue, but he
finds it somewhat offensive for Professor Hardaway to refer to
this proposal as the "Koza scheme." He noted that some people
have been working on this project for up to four years. Also,
the book he co-authored on the subject has forwards by three
former congressmen and a former senator so he would hope that it
would rise above the level of a scheme. He further noted that
the book deals with much of the misinformation that is
circulating about the NPV proposal.
CHAIR FRENCH asked him to address the question of whether or not
a national recount might be necessary.
MR. FADEM said that under the NPV system recounts would be far
less likely than under the current system. It's the current
system that causes the crises that result when there's a very
close count in just one state as in Florida in 2004. He noted
that in the last 56 presidential elections, just five were close
enough that legal challenges were brought. He reported that the
Washington D.C. based organization called Fair Vote studied
7,645 statewide elections and found that the probability of a
recount was one every 332 elections. Using those statistics, the
chances of a recount occurring under NPV would be once every
1,328 years. But what's more important, he said, is that under
the current system there are literally 51 separate elections
each time there's a national election.
2:49:00 PM
CHAIR FRENCH asked him to respond to the argument that changing
to the NPV system would require an amendment to the U.S.
Constitution.
MR. FADEM replied the founding Fathers gave state legislatures
the right to determine how to award electoral votes so it's a
state's rights issue. If a state feels that the president should
be elected by the NPV, it has the right to do that. He noted
that 70 percent of the 800 some voters polled in Alaska said
they favored the National Popular Vote. He opined that it's a
landslide if 70 percent of voters agree on anything today.
2:51:22 PM
SENATOR COGHILL asked him to read the poll question.
MR. FADEM said the question asked, "How do you think we should
elect the president? Should it be the candidate who gets the
most votes in all 50 states or the current Electoral College
system?"
CHAIR FRENCH commented that he almost asked each witness if they
believe that the candidate with the most votes should be
elected, but it seems rather unfair because who would oppose
that.
SENATOR COGHILL remarked that he thinks people might have a
different response if they understand that the majority vote of
the nation might take their state's votes.
CHAIR FRENCH said he doesn't disagree.
MR. FADEM said that a recent focus group asked if whoever gets
the most votes in all 50 states should become president. The
answer was, "Well, duh; it's the American way, it's the
democratic system."
2:53:39 PM
CHAIR FRENCH asked how many different state compacts there are
since the issue is whether or not this can be done by state
compact.
MR. FADEM replied there are literally thousands; it's a very
common vehicle for states to use when they agree upon something.
He knows that every state is in at least one compact with all 50
states. The issues include environmental, juvenile justice,
education, and child support.
MR. FADEM concluded saying the states that have very few
electoral votes are the poster child for how bad the current
system is; that's why Hawaii was one of the first states to join
the compact. They understood that, just like Alaska, their votes
as a non-battleground state do not count.
2:55:48 PM
TARA ROSS, representing herself, said she is the author of
"Enlightened Democracy: The Case for the Electoral College." The
NPV proposal asks states like Alaska to give their electors to
the winner of the national popular vote rather than the winner
on their own state's vote. This plan would practically eliminate
the Electoral College, which would do more harm than is
generally appreciated. She noted that she outlined her reasoning
in written testimony she submitted.
MS. ROSS expressed the view that eliminating the Electoral
College by implementing SB 92 carries special logistical
dangers. She supports the Electoral College but if it is to be
eliminated it should be done through the constitutional
amendment process. The compact contemplated by SB 92 would
require participating states to award their electors to the
candidate winning the largest National Popular Vote total. Under
this scheme, Alaska could be forced to commit its electors to a
candidate who was not on the ballot. There are other
inconsistencies among states ballots that could skew election
results. For example, some states allow felons to vote, whereas
Alaska does not. Inevitably Alaska would have to abide by
national election results derived from policies with which it
does not agree.
MS. ROSS said it's a big assumption that recounts wouldn't
happen under the popular vote scheme as has been claimed. If
there were recounts, huge problems would result because of the
differences in state recounting statutes. Voters would
inevitably be disenfranchised and there would be chaos and
litigation each and every election year. She said she focused on
the logistical problems because they aren't given enough
attention, but the proposal has philosophical problems as well.
She believes that formally eliminating the Electoral College in
any manner would be unhealthy for the country.
3:00:46 PM
SENATOR WIELECHOWSKI asked if under the current system a
candidate could win with just 15 percent of the nationwide vote.
MS. ROSS replied she doesn't see how that could happen because
of the current, strong two-party system, which forces political
parties and candidates to compromise. She noted that a professor
once said that nobody gets their first-choice candidate, but
lots of people get their second choice because presidential
candidates have to build concurrent majorities to win.
SENATOR WIELECHOWSKI said it's also the case that under the
current system a candidate who is not on the ballot in Alaska
could win.
MS. ROSS disagreed; the case today is that Alaska's three
electorates will cast their votes for whomever qualifies for the
ballot.
CHAIR FRENCH announced he would hold SB 92 for a future hearing.
3:03:36 PM
There being no further business to come before the committee,
Chair French adjourned the meeting at 3:03 p.m.
| Document Name | Date/Time | Subjects |
|---|---|---|
| SB_257_Sponsor_Statement.pdf |
SFIN 3/12/2010 9:00:00 AM SJUD 2/19/2010 1:30:00 PM |
SB 257 |
| SB 257 Juneau DistCourt LOS.pdf |
SFIN 3/12/2010 9:00:00 AM SJUD 2/19/2010 1:30:00 PM |
SB 257 |
| SB257 Letter of Support.pdf |
SFIN 3/12/2010 9:00:00 AM SJUD 2/19/2010 1:30:00 PM |
SB 257 |
| SB257 Ketchikan Magistrate LOS.pdf |
SFIN 3/12/2010 9:00:00 AM SJUD 2/19/2010 1:30:00 PM |
SB 257 |
| SB257 JYC Bd LOS.doc |
SFIN 3/12/2010 9:00:00 AM SJUD 2/19/2010 1:30:00 PM |
SB 257 |
| SB92 Sponsor Statement.pdf |
SJUD 2/19/2010 1:30:00 PM |
SB 92 |
| SB 92 Sectional.pdf |
SJUD 2/19/2010 1:30:00 PM |
SB 92 |
| SB92 Press.pdf |
SJUD 2/19/2010 1:30:00 PM |
SB 92 |
| SB92 Letters of Support.pdf |
SFIN 3/26/2010 1:30:00 PM SJUD 2/19/2010 1:30:00 PM |
SB 92 |
| Wasilla PD LOS.pdf |
SFIN 3/12/2010 9:00:00 AM SJUD 2/19/2010 1:30:00 PM |
SB 257 |