Legislature(2001 - 2002)

03/22/2001 03:37 PM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                     ALASKA STATE LEGISLATURE                                                                                   
                  SENATE STATE AFFAIRS COMMITTEE                                                                              
                          March 22, 2001                                                                                        
                             3:37 p.m.                                                                                          
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Senator Gene Therriault, Chair                                                                                                  
Senator Randy Phillips, Vice Chair                                                                                              
Senator Bettye Davis                                                                                                            
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Senator Rick Halford                                                                                                            
Senator Drue Pearce                                                                                                             
                                                                                                                              
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
SENATE BILL NO. 146                                                                                                             
"An Act relating to the primary election; and providing for an                                                                  
effective date."                                                                                                                
     HEARD AND HELD                                                                                                             
                                                                                                                                
SENATE BILL NO. 127                                                                                                             
"An Act providing for a blanket primary system, and permitting                                                                  
political parties to select their nominees by alternative means;                                                                
and providing for an effective date."                                                                                           
     HEARD AND HELD                                                                                                             
                                                                                                                                
SENATE CONCURRENT RESOLUTION NO. 8                                                                                              
Urging Alaska's political parties to use a State of Alaska freedom                                                              
of choice blanket primary election.                                                                                             
     HEARD AND HELD                                                                                                             
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                              
SB 146 - No previous action recorded.                                                                                           
                                                                                                                                
SB 127 - No previous action recorded.                                                                                           
                                                                                                                                
SCR 8 - No previous action recorded.                                                                                            
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
Lt. Governor Fran Ulmer                                                                                                         
P.O. Box 110015                                                                                                                 
Juneau, AK 99811-0015                                                                                                           
POSITION STATEMENT: Introduced SB 146                                                                                         
                                                                                                                                
Avrum Gross                                                                                                                     
Former Alaska Attorney General,                                                                                                 
Primary Election Task Force Member                                                                                              
420 N. Franklin                                                                                                                 
Juneau, AK 99801                                                                                                                
POSITION STATEMENT: Testified on SB 146                                                                                       
                                                                                                                                
Jim Sykes                                                                                                                       
Mat-Su LIO                                                                                                                      
No address provided                                                                                                             
POSITION STATEMENT: Testified on SB 146, SB 127 and SCR 8                                                                     
                                                                                                                                
Ken Clark                                                                                                                       
Global Election Systems                                                                                                         
Dallas, TX                                                                                                                      
POSITION STATEMENT: Answered ballot related questions                                                                         
                                                                                                                                
Larry Dix                                                                                                                       
Global Election Systems                                                                                                         
Dallas, TX                                                                                                                      
POSITION STATEMENT: Answered ballot related questions                                                                         
                                                                                                                                
Randy Ruedrich                                                                                                                  
Primary Election Task Force Member                                                                                              
55 W 13th Avenue                                                                                                                
Anchorage, AK 9950                                                                                                              
POSITION STATEMENT: Testified on SB 146 and SB 127                                                                            
                                                                                                                                
Christian Warren                                                                                                                
104 Muldoon Rd #305                                                                                                             
Anchorage, AK 99504                                                                                                             
POSITION STATEMENT: Testified on SB 127, SB 146 and SCR 8                                                                     
                                                                                                                                
Al Anders                                                                                                                       
1112 W 26th Avenue #2                                                                                                           
Anchorage, AK 99503                                                                                                             
POSITION STATEMENT:  Testified on SB 127, SB 146 and SCR 8                                                                    
                                                                                                                                
Mark Chryson                                                                                                                    
Chairman, Alaska Independent Party (AIP)                                                                                        
No address given                                                                                                                
POSITION STATEMENT:  Testified on SB 127                                                                                      
                                                                                                                                
Senator Kim Elton                                                                                                               
Alaska State Capitol Room 115                                                                                                   
Juneau, AK  99801-1182                                                                                                          
POSITION STATEMENT: Sponsor of SB 127 & SCR 8                                                                                 
                                                                                                                                
                                                                                                                                
Jim Baldwin                                                                                                                     
Assistant Attorney General                                                                                                      
Department of Law                                                                                                               
PO Box 110300                                                                                                                   
Juneau, AK  99811-0300                                                                                                          
POSITION STATEMENT: Answered questions on SB 127                                                                              
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
TAPE 01-15, SIDE A                                                                                                            
Number 001                                                                                                                      
                                                                                                                                
CHAIRMAN GENE  THERRIAULT called the Senate State  Affairs Committee                                                          
meeting to order at 3:37  p.m. Present were Senators Davis, Phillips                                                            
and  Chairman  Therriault.  The  State  primary  issue  was  on  the                                                            
committee  schedule for initial  discussion.  Senator Kim Elton  has                                                            
introduced SCR 8 and SB  127 and Governor Knowles introduced SB 146.                                                            
Discussion  and  testimony will  be  taken but  no final  action  is                                                            
intended at this meeting.                                                                                                       
                                                                                                                                
             SB 146-MODIFIED BLANKET PRIMARY ELECTION                                                                       
                                                                                                                                
LT.  GOVERNOR  FRAN ULMER  thanked  the committee  for  hearing  the                                                            
legislation.  She  appreciated  the opportunity  to  talk about  the                                                            
legislation  because it is an issue  that is important to  the State                                                            
and one that needs action this year.                                                                                            
                                                                                                                                
She said she would discuss  why this legislation is needed and a bit                                                            
about the Task  Force. Then she would  ask Avrum Gross to  talk more                                                            
specifically about  the recommendations and how the  Task Force came                                                            
to those recommendations.                                                                                                       
                                                                                                                                
During the  summer of 2000,  the United States  Supreme Court  ruled                                                            
that  states   with  blanket  primary   systems,  such  as   Alaska,                                                            
California  and Washington,  could  only run  their  primaries as  a                                                            
blanket if  all the parties agree.  If any of the political  parties                                                            
in the state objects to  individuals being able to vote across party                                                            
lines then  the state must  respect those  party rules and  restrict                                                            
access  to the  ballot  for those  party  candidates.  That was  the                                                            
situation the State found  itself in last summer when the Republican                                                            
Party requested  that  the State change  its primary  so as  to only                                                            
permit Republicans  and voters who  are non-partisan or Independent                                                             
to have  access to  those candidates.  Under  emergency regulations                                                             
that she promulgated,  there was a  Republican ballot and  a blanket                                                            
ballot.  The  blanket  ballot  was available  to  anyone  while  the                                                            
Republican ballot  was only available to Republicans,  Independents,                                                            
and non-partisans.  Those emergency regulations were  good until the                                                            
election was  finished and it is now  necessary for the legislature                                                             
to decide how Alaskan primaries  will be structured, consistent with                                                            
the law as articulated by the Supreme Court.                                                                                    
                                                                                                                                
She decided that  it would be helpful for the legislature  to have a                                                            
Task  Force  discuss  the  options  and  make recommendations.   She                                                            
appointed  a Task  Force  comprised  of former  lt.  governors,  two                                                            
former  attorneys general  and  a representative  of  the League  of                                                            
Women Voters.  They had three  meetings and  arrived at a  consensus                                                            
recommendation that was  then delivered to the Lt. Governor's office                                                            
on  March  12,2001.   Governor  Knowles  agreed  to  introduce   the                                                            
legislation at her request and that of the Task Force.                                                                          
                                                                                                                                
It  is important  to  act  on this  issue  during  this legislative                                                             
session because  next year  will be a big  election year for  Alaska                                                            
due to  redistricting  and the  potential that  all office  holders,                                                            
except  the Senator  Murkowski  race, will  be on  the ballot.  Most                                                            
probably,  there will  be initiatives  on  the ballot  as well.  The                                                            
sooner  decisions  are  made  about  how  the  primary  system  will                                                            
operate,  the election  equipment  is  changed or  reprogrammed  and                                                            
notice is given  to the public, the parties and the  candidates, the                                                            
better.  The Task  Force discussed  the  importance  of action  this                                                            
session so  the parties can be deciding  what their rules  are going                                                            
to be  this  summer and  they can  give notice  to  the Division  of                                                            
Elections by the  fall so the mechanical changes can  be made so the                                                            
election can be  conducted openly, fairly and with  the least amount                                                            
of surprise to everyone.                                                                                                        
                                                                                                                                
CHAIRMAN  THERRIAULT said that  he flew to  Anchorage and sat  in on                                                            
the  last   Task  Force  meeting   but  not  during  the   statewide                                                            
teleconference or previous meetings.                                                                                            
                                                                                                                                
A number of  Senate Majority Caucus  members have asked for  a clear                                                            
discussion  on whether  the  passage  of legislation  is  absolutely                                                            
required or whether  there are regulations that could  be used to go                                                            
ahead  with   the  next  elections   without  the  passage   of  new                                                            
legislation.                                                                                                                    
                                                                                                                                
LT. GOVERNOR  ULMER said that  was a good  question but not  an easy                                                            
one to  answer. When she  noticed the public  last summer after  the                                                            
Supreme Court  ruling, and  in light of the  fact that there  really                                                            
wasn't  enough   time  for  a  special  session,  the   parties  and                                                            
interested  individuals who follow  elections said, "Okay,  it's all                                                            
right if you do it by emergency  regulations." However, there were a                                                            
few individuals  representing two  parties that indicated  that they                                                            
didn't feel she  had enough statutory authority to  promulgate those                                                            
regulations  and the only reason they  didn't sue her was  that they                                                            
recognized  the practical constraints  associated with the  lateness                                                            
of the Supreme  Court decision and  the inability to have  a special                                                            
session.  During the  second meeting  of the Task  Force, it  became                                                            
apparent  that there are  people that will  probably sue her  if she                                                            
conducts an election and  uses regulation without statutory changes.                                                            
                                                                                                                                
Although not specifically  discussed at the Task Force meetings, the                                                            
minimalist  approach could  remove the provisions  from the  statute                                                            
that are inconsistent  with the law  and give the Lt. Governor  more                                                            
authority  to structure a  ballot consistent  with party rules.  The                                                            
Department  of Law would  have to  be consulted  to determine  which                                                            
specific  statutes  would  have to  be  removed  to do  the  minimum                                                            
necessary to  avoid a lawsuit or the  uncertainty associated  with a                                                            
possible lawsuit.                                                                                                               
                                                                                                                                
CHAIRMAN  THERRIAULT  asked whether  there  was a  challenge to  the                                                            
emergency regulations that was ruled on by the courts.                                                                          
                                                                                                                                
LT. GOVERNOR  ULMER  responded that  there was and  Mr. Gross  would                                                            
speak to the challenge.                                                                                                         
                                                                                                                                
AVRUM  GROSS, former  attorney  general  and Primary  Election  Task                                                            
Force  Head, read  the following  paragraph from  the Supreme  Court                                                            
decision which  upheld the emergency regulations:  "By acknowledging                                                            
that  the validity  of  the  challenged regulations  turned  on  the                                                            
unconstitutionality   of   present  law,   'I'm  paraphrasing,'   we                                                            
implicitly  determine  that  the  division's  power  to  abrogate  a                                                            
clearly  unconstitutional   statute  triggered  it's   authority  to                                                            
regulate, on  a temporary basis, in  an emergent situation  like the                                                            
situation  we face here  'This is  the Division  of Elections  we're                                                            
talking about  here.' the U.S. Supreme Court issued  Jones less than                                                            
two  months  before Alaska's  primary  scheduled  date.  The  Alaska                                                            
Legislature is  out of session and will not reconvene  until January                                                            
2001. Given these  circumstances, we conclude that  the division has                                                            
authority  to  promulgate  emergency   regulations  to  implement  a                                                            
primary election  that complies with the constitutional  mandates of                                                            
the Jones' case. We find  the division's power to take the temporary                                                            
action  needed to  ensure  a timely  and constitutional  primary  is                                                            
solidly rooted  in the principle of necessity and  in the division's                                                            
statutory power of supervision over elections."                                                                                 
                                                                                                                                
From the court's  decision, they recognize the division's  authority                                                            
to issue emergency  regulations. If  the legislature fails  to adopt                                                            
any legislation, there  are two options. First, the division can try                                                            
to adopt permanent  regulations based  upon its general supervision                                                             
over  elections.  This  will,  unquestionably,  be  challenged.  The                                                            
second option is that the  court will make the decision. He reminded                                                            
committee  members that  the court  made  reapportionment  decisions                                                            
when the legislature  failed to act so there's no  reason to believe                                                            
they wouldn't  do the same here. Although  there are no guarantees,                                                             
the obvious intent  of the court was to have the legislature  act on                                                            
the issue.                                                                                                                      
                                                                                                                                
CHAIRMAN THERRIAULT  commented that  the wording indicates  that the                                                            
court expects  the legislature to  make the policy call for  how the                                                            
regulation should  be drafted. However, if no legislation  is passed                                                            
and another  election is to be held,  the Lt. Governor would  not be                                                            
barred from "putting  together something" so the election  could run                                                            
in an orderly fashion.                                                                                                          
                                                                                                                                
MR. GROSS said  that if the legislature  doesn't make the  decision,                                                            
it  will be  allowing  the  primary election  system  to  go to  the                                                            
vagaries  of  the  court  system.  They   will  either  approve  the                                                            
decisions of the Division  of Elections or they'll do it themselves.                                                            
One way or another,  they will "have the call on it,  whereas if you                                                            
do it, you'll have the call on it."                                                                                             
                                                                                                                                
CHAIRMAN THERRIAULT asked  Mr. Gross to explain the decisions of the                                                            
Task Force.                                                                                                                     
                                                                                                                                
MR. GROSS  said that the  Task Force was  unanimous in its  decision                                                            
and he believes this was  possible because they began with the basic                                                            
principle  that they  wanted  to keep  the system  as  close to  the                                                            
existing system  as possible and still comply with  the U.S. Supreme                                                            
Court decision.  They  knew that all  parts of  the system  wouldn't                                                            
work but they wanted to  preserve those that would. Therefore, there                                                            
was no wholesale revision of the primary election laws.                                                                         
                                                                                                                                
CHAIRMAN  THERRIAULT asked  Mr. Gross to talk  about the Task  Force                                                            
discussion regarding  the Supreme Court ruling and  the fact that it                                                            
spoke to how you operate a primary.                                                                                             
                                                                                                                                
MR.  GROSS explained  that  the U.S.  Supreme  Court  in Jones  said                                                            
"states can not  compel parties to participate in  blanket primaries                                                            
where  people they  don't want  to select  their  candidates get  to                                                            
select their  candidates." In other  words, if Democrats  want their                                                            
candidates  to be nominated only by  registered Democrats  they have                                                            
the  right to  do that.  The  same applies  to Republicans;  it's  a                                                            
constitutional right under the right of association.                                                                            
                                                                                                                                
CHAIRMAN THERRIAULT said  that the point that needs to be emphasized                                                            
is that you can't force  a party to participate in a blanket primary                                                            
but  you  can  make the  public  policy  call  that  you  will  have                                                            
primaries.                                                                                                                      
                                                                                                                                
MR. GROSS  said that's  correct, the  Supreme Court  has ruled  that                                                            
states  do have  the legal  right to  insist that  parties  nominate                                                            
their candidates  by means  of a primary but  the Jones case  didn't                                                            
direct itself to that issue.                                                                                                    
                                                                                                                                
In  Alaska, parties  do  nominate  their candidates  by  means of  a                                                            
primary and the  Task Force didn't want to change  that. Whether you                                                            
wanted to try to change  that and nominate candidates by conventions                                                            
rather than  primaries is another  issue. It's not unconstitutional                                                             
to do that  but the State has the  right to disallow it.  In Alaska,                                                            
political  parties  have  always nominated  their  candidates  in  a                                                            
public process.                                                                                                                 
                                                                                                                                
The Task Force wanted to  retain the blanket primary to the greatest                                                            
extent possible  because it was the legislative choice  in the past.                                                            
They  started   with  the   assumption  that   if  parties   had  no                                                            
restrictions there would be a blanket primary.                                                                                  
                                                                                                                                
The second  step was  to incorporate  the necessary  element  of the                                                            
U.S.  Supreme Court  decision  in  Jones by  saying  that any  party                                                            
wanting to limit those  persons who may vote for its candidates in a                                                            
primary election  may do so and the statute must reflect  that fact.                                                            
                                                                                                                                
In explanation, he said  to consider candidates for all offices from                                                            
both parties.  If the Republicans notify the lt. governor  that only                                                            
Republicans  may  participate  in their  primary,  then Republicans                                                             
would  get a  blanket primary  ballot  listing all  the candidates.                                                             
Every other voter  would get a ballot listing all  candidates except                                                            
Republicans.                                                                                                                    
                                                                                                                                
The blanket primary is  retained but it's not a blanket primary that                                                            
includes Republicans because  Republicans only wanted Republicans to                                                            
be  able  to  vote  for  them.  However,  this   doesn't  mean  that                                                            
Republicans are restricted  from voting for other candidates if they                                                            
want to  do so. It's one  thing to say that  a party may choose  who                                                            
may select  their candidates  but  it's a different  matter for  the                                                            
party to say  that if you want to  choose our candidate you  have no                                                            
right to choose anybody else's candidate.                                                                                       
                                                                                                                                
In  retaining  the  blanket  primary  and  incorporating  the  Jones                                                            
decision, several  issues were raised and resolved.  The first asked                                                            
when parties wanting  to restrict the primary should  notify the lt.                                                            
governor of  their decision. The Task  Force consulted the  Division                                                            
of  Elections   and  the   political  parties   before  making   the                                                            
determination  that  September 1  of the  previous year  would  be a                                                            
reasonable period for notification.                                                                                             
                                                                                                                                
The second  issue was that if a party  wants to limit access  to its                                                            
ballot based upon an individual's  party registration, when does the                                                            
registration  becomes effective?  During the  last election,  people                                                            
were allowed  to change their  party affiliation  on the day  of the                                                            
election.  This wasn't satisfactory  for two  reasons. For  right of                                                            
association  to work well,  there should be  some mechanism  to stop                                                            
numerous party  crossovers on election day. There  are Supreme Court                                                            
cases,  which  have approved  periods  up  to  ten months  before  a                                                            
registered individual  may participate in a particular  primary. The                                                            
Task  Force  decided  that 30  days  before  a primary  was  a  more                                                            
appropriate  time frame to fix party  affiliation. That period  also                                                            
coincides  with  the  last  day  you may  register  to  vote  in  an                                                            
election.                                                                                                                       
                                                                                                                                
Finally,  they  addressed  what the  ballot  would look  like.  They                                                            
concluded  that constructing  a ballot form  wasn't possible  due to                                                            
the  many variables.  With  this  in  mind, they  started  with  the                                                            
blanket  and   then  said  that  the   lt.  governor  will   prepare                                                            
appropriate ballots  reflecting the parties' wish  as of September 1                                                            
of the preceding  year. The ballots  will then be available  30 days                                                            
in advance of the election.                                                                                                     
                                                                                                                                
Of course there are other  options that could be tried; this is just                                                            
what the Task Force decided  upon in an effort to vary from existing                                                            
law as little  as possible while reflecting  the theory of  the U.S.                                                            
Supreme Court decision.                                                                                                         
                                                                                                                                
CHAIRMAN  THERRIAULT  asked  whether a  party  could select  a  time                                                            
greater than 30 days if it was in their bylaws.                                                                                 
                                                                                                                                
MR.  GROSS  said that  although  the  State  has  the right  to  set                                                            
reasonable standards, that  point hasn't been specifically addressed                                                            
by the courts.                                                                                                                  
                                                                                                                                
CHAIRMAN THERRIAULT  said the Task  Force also dealt with  the issue                                                            
of having a blanket party  and allowing parties to opt for something                                                            
else if they were willing to pay for it.                                                                                        
                                                                                                                                
MR. GROSS  said he  would have  Mr. Baldwin  address specific  cases                                                            
dealing with this issue  but that the general constitutional theory,                                                            
which bars  that kind of  system, is as  follows. The Supreme  Court                                                            
has decided that parties  have the associational right to decide who                                                            
will participate  in their primaries. The Task Force  didn't feel it                                                            
was sound  theory for the  legislature to  impose a penalty  for the                                                            
utilization  of  a constitutional  right  and having  to  pay for  a                                                            
change from the blanket party is indeed seen as a penalty.                                                                      
                                                                                                                                
SENATOR  PHILLIPS asked  whether a  primary was  necessary or  could                                                            
there be a general election with a runoff three weeks later.                                                                    
                                                                                                                                
MR. GROSS said yes, you  could have a non-partisan primary but using                                                            
that system you  don't necessarily get the top two  candidates. When                                                            
there are  lots of candidates  in a non-partisan  primary,  it's not                                                            
unusual for a  candidate from a tightly knit extremist  group to get                                                            
into the runoff and still  have garnered less than 20 percent of the                                                            
popular  vote. He  used Louisiana's  election  of David  Duke as  an                                                            
example.                                                                                                                        
                                                                                                                                
SENATOR  PHILLIPS asked about  Nebraska, which  is non-partisan  and                                                            
supposedly has no primary.                                                                                                      
                                                                                                                                
MR. GROSS didn't  know for sure but  he thought that Nebraska  has a                                                            
primary for governor and lt. governor.                                                                                          
                                                                                                                                
He asked whether they were non-partisan or unicameral.                                                                          
                                                                                                                                
SENATOR PHILLIPS said they were unicameral and non-partisan.                                                                    
                                                                                                                                
MR. GROSS  questioned  that there  are no Democrats  or Republicans                                                             
because  he remembers a  Democratic or  Republican attorney  general                                                            
from Nebraska when he was the Alaska Attorney General.                                                                          
                                                                                                                                
SENATOR PHILLIPS said he was talking about the legislature.                                                                     
                                                                                                                                
CHAIRMAN THERRIAULT said  that to the credit of the Task Force, they                                                            
decided that  there were  many options but  that is a public  policy                                                            
call that  the legislature  should make and  they tried to  restrict                                                            
themselves  to suggestions  that were  as close  as possible  to the                                                            
current system  and still  comply with the  Supreme Court  decision.                                                            
However,  it is  a legislative  policy  call to  consider the  "full                                                            
gambit" of options.                                                                                                             
                                                                                                                                
SENATOR  PHILLIPS said  that  eliminating  the primary  would be  in                                                            
compliance with the Supreme  Court ruling. "You have an election and                                                            
have a bunch  of guys run  and may the two  best people win.  If the                                                            
top  two don't  get a  50 percent  plus  one vote  then  you have  a                                                            
runoff."                                                                                                                        
                                                                                                                                
MR. GROSS  said  that, to  his knowledge,  there is  only one  state                                                            
doing that and the reviews aren't very good.                                                                                    
                                                                                                                                
SENATOR PHILLIPS  asked Mr.  Gross to check  on the Nebraska  system                                                            
for him.                                                                                                                        
                                                                                                                                
MR. GROSS said  he would check. He  then restated the fact  that the                                                            
Task Force intended  to make few changes and to keep  the process as                                                            
non-contentious as possible.                                                                                                    
                                                                                                                                
Number 1882                                                                                                                     
                                                                                                                                
SENATOR PHILLIPS  commented that during a primary  several elections                                                            
ago, there were  many problems in his district because  "they wanted                                                            
freedom to  express their will to  pick whoever they want  when they                                                            
want." This made him think  that it would be a good idea to skip the                                                            
primary election."  If the  person doesn't  get 50 percent  plus one                                                            
then have a runoff."  In addition, he has philosophical  objections.                                                            
                                                                                                                                
MR. GROSS  said that's why  the Task Force  stayed with the  blanket                                                            
system.                                                                                                                         
                                                                                                                                
CHAIRMAN  THERRIAULT pointed  out that  any change  from status  quo                                                            
brings discontent.  Seemingly forgotten  is the fact that  primaries                                                            
are for the  purpose of choosing party  standard bearers  by members                                                            
of a particular  party and whoever  they want to participate  in the                                                            
process.                                                                                                                        
                                                                                                                                
MR. GROSS  first  addressed Senator  Phillips'  statements and  said                                                            
he's correct,  all the polls indicate that everyone  wants the right                                                            
to vote  on all  candidates but  as Senator  Therriault points  out,                                                            
that denies freedom of  association to the extent that a party wants                                                            
to  limit itself.  This  has  a self-controlling  effect.  The  more                                                            
restrictions  the  party  places  on  its  membership  in  order  to                                                            
participate  in a primary,  the more  pure its  membership will  be.                                                            
However, that party won't  win in the general election. Parties must                                                            
make compromises  in  order to get  a candidate  who represents  the                                                            
party views and is also able to win support from the majority.                                                                  
                                                                                                                                
SENATOR PHILLIPS said that, "The perfect ruins the good."                                                                       
                                                                                                                                
SENATOR DAVIS  said that  the committee should  consider that  there                                                            
are individuals  that do not want  to declare any party affiliation                                                             
and candidates  must  rely on  those voters  because  there are  not                                                            
enough Republicans or Democrats to win any election alone.                                                                      
                                                                                                                                
Although  the Task Force  determined that the  State should  pay for                                                            
primaries that  limit participation  because it is a constitutional                                                             
right, it  is her understanding  that Washington  State charges  for                                                            
such primaries.                                                                                                                 
                                                                                                                                
MR. GROSS   said that some disagree  with Task Force interpretation                                                             
but that is their view.                                                                                                         
                                                                                                                                
SENATOR  PHILLIPS  asked whether  that  was  argued in  the  Supreme                                                            
Court.                                                                                                                          
                                                                                                                                
MR. GROSS said  no, there are circuit  court cases that are  against                                                            
it but no Supreme  Court case. The  general doctrine says  the state                                                            
cannot burden the exercise of a constitutional right.                                                                           
                                                                                                                                
CHAIRMAN THERRIAULT  thanked Mr. Gross for his time  and for serving                                                            
on the Task Force.                                                                                                              
                                                                                                                                
MR. JIM  SYKES, testified  via teleconference  and said that  he had                                                            
successfully  challenged ballot  access law in  1990 and in  1991 he                                                            
presented  the idea  of instant  runoff  voting to  the House  State                                                            
Affairs  Committee but  no bill  resulted. Legislation  for  instant                                                            
runoff voting  was introduced  in the last  legislature but  did not                                                            
pass.                                                                                                                           
                                                                                                                                
Senator  Phillips  is  right  to  raise   the  idea  of eliminating                                                             
primaries and  there is an alternative  to having a runoff.  "If you                                                            
would choose  to have instant  runoff voting,  whether you  had four                                                            
candidates  runoff  or  thirty,  people  would  be  able  to  select                                                            
candidates by  preference in the order of the number.  The State has                                                            
already produced  sample ballots for just such an  election and it's                                                            
always billed  the majority of 50 percent plus one  without the need                                                            
for  a runoff  election.  This  is  election  reform  that  actually                                                            
recognizes  the  multi-party   aspect  of  Alaska."  He  urges  this                                                            
consideration  rather that the current  system that isn't  compliant                                                            
with the Supreme Court decision.                                                                                                
                                                                                                                                
Although he has  enormous respect for members of the  Task Force, it                                                            
troubles him that  Independent voters will be given  unequal primary                                                            
access  if  parties  are  able to  limit  access  to  their  primary                                                            
ballots.  The  modifications  recommended  by  the Task  Force  will                                                            
"inevitably  realize  inequalities  that we  now do  not have."  The                                                            
party  that he  belongs  to has  opted to  participate  in the  open                                                            
blanket primary  because no  other legal options  are open  to them.                                                            
There is no legal  option for a mail in ballot or  to choose a party                                                            
convention  and he  believes those  options should  be available  to                                                            
parties.                                                                                                                        
                                                                                                                                
On page 2,  lines 22-26, deals with  providing separate ballots  for                                                            
parties limiting  access to their primaries. This  could become very                                                            
expensive  and  confusing   and  therefore  would  provide   greater                                                            
opportunity for errors.                                                                                                         
                                                                                                                                
He likes  parts  of SB 127  because  it allows  parties options  but                                                            
restricts write  in candidates those whose names will  not appear on                                                            
the general  election ballot. It's  unclear to him whether  petition                                                            
candidates   are  discriminated  against   for  receiving   campaign                                                            
contributions.  In addition, it's  unclear whether a mail  in ballot                                                            
would be accepted.                                                                                                              
                                                                                                                                
Perhaps the  primary election process  should be eliminated.  Alaska                                                            
is unique  in that a majority  of its voters  are not registered  to                                                            
any political  party. For  this reason, instant  runoff voting  is a                                                            
good idea.                                                                                                                      
                                                                                                                                
Side B                                                                                                                          
                                                                                                                                
On page  4, SB 127 addresses  filling a  vacancy by party  petition.                                                            
This  allows  questionable  party  switching  such  as in  the  1990                                                            
election, which is another argument for not having a primary.                                                                   
                                                                                                                                
He challenged  lines  10-12 on  page 8 of  SB 127,  which says  that                                                            
candidates  who  file nominating  petitions  without  designating  a                                                            
political group  name will all be treated as candidates  of the same                                                            
political group.  It is his feeling that this would  not withstand a                                                            
constitutional challenge.                                                                                                       
                                                                                                                                
He  urged  the committee   "to open  your  minds  and  consider  the                                                            
possibilities." The system  does not need to stay the way it is; the                                                            
prime consideration  is that the voters  are treated with  equality,                                                            
which is not the case with the modified blanket primary.                                                                        
                                                                                                                                
CHAIRMAN THERRIAULT thanked Mr. Sykes for his participation.                                                                    
                                                                                                                                
He recognized Ken Clark  who was on an off net site and asked him to                                                            
comment on  the technical possibility  and expense of modifying  the                                                            
optical  scanning systems  the  State of  Alaska uses  to deal  with                                                            
multiple ballots without  actually having to print multiple separate                                                            
ballots.                                                                                                                        
                                                                                                                                
KEN  CLARK,  Software  Development  Manager  with  Global  Elections                                                            
Systems of  Dallas, Texas,  said his company  is the primary  vendor                                                            
for election  equipment in  the State of  Alaska. All their  systems                                                            
are software  based. The voting systems  have firmware or  ROM chips                                                            
in them that drive  the control of the system. The  systems scan the                                                            
ballots  and  then  the  software   takes  over.  Next  there  is  a                                                            
centralized GEM system  that tallies the votes that are sent in from                                                            
each of the tabulation units.                                                                                                   
                                                                                                                                
The software  can be modified  to suit any  particular need.  If the                                                            
State decides  to go to  a multi ballot  system, the software  could                                                            
accommodate that  or a selection race if that was  desired. Although                                                            
the systems and  requirements are quite different,  his company runs                                                            
the same software  from Florida to  Nome. The State needs  to define                                                            
its needs and his company will make it work.                                                                                    
                                                                                                                                
CHAIRMAN THERRIAULT  asked about the  time and expense involved  and                                                            
whether  there  would  be  much  involved  in  making  changes  from                                                            
election  to  election   if  parties  changed  their  participation                                                             
requirements.                                                                                                                   
                                                                                                                                
MR. CLARK said  it depends on whether the changes  are structural or                                                            
not. If  only parameters  are changing  then that  would require  no                                                            
reprogramming.  If it  is not possible  to define  what will  change                                                            
from year  to year  then it would  be an ongoing  expense. He  asked                                                            
that his colleague respond as well.                                                                                             
                                                                                                                                
LARRY  DIX,  Vice-President  of  Operations   for  Global  Elections                                                            
Systems, said  that the primary concern  where software changes  are                                                            
concerned  is that once the  State identifies  the "rules"  they can                                                            
begin to  make changes.  As far  as cost is  concerned, the  "rules"                                                            
governing the  software must be identified before  a fiscal analysis                                                            
can be given.                                                                                                                   
                                                                                                                                
LT.  GOVERNOR  ULMER thought  it  was important  to  address  ballot                                                            
confusion  in light  of what  happened  in Florida  during the  last                                                            
election.  Chairman  Therriault  asked about  a single  ballot  that                                                            
would have all parties  on it and then perhaps something to identify                                                            
the party  affiliation  at the  top of  that ballot.  She asked  for                                                            
either Mr. Clark  or Mr. Dix to talk about how that  ballot would be                                                            
counted or  not counted.  With the Alaskan  Acuvote machine,  if you                                                            
vote for two candidates  in a single race your ballot is rejected as                                                            
an over count.  The ballot is immediately rejected  and the election                                                            
worker  will help  tear up  that ballot  and  give the  voter a  new                                                            
ballot to vote.                                                                                                                 
                                                                                                                                
As  an  example  of  the  State  going  with  a  single  ballot  and                                                            
restricting who  can vote for which parties candidates,  she said to                                                            
suppose that Chairman Therriault  went to the polling station. He is                                                            
a Republican  so  the top  of his  ballot  would be  punched in  the                                                            
Republican  ballot hole. If he entered  the polling booth  and voted                                                            
for a party candidate that  was not permitted under the party rules,                                                            
then the  ballot would  come back out  at him just  as an over  vote                                                            
ballot  does now.  He would  have to tear  up that  ballot and  vote                                                            
under the appropriate  rules of only voting for the  parties that he                                                            
is permitted to vote for.                                                                                                       
                                                                                                                                
She asked for  clarification that  this is how the ballots  would be                                                            
programmed if the parties  restricted who could vote for their party                                                            
candidates even though they are all on the same ballot.                                                                         
                                                                                                                                
MR. DIX said that  the statement is correct so long  as the software                                                            
is  programmed  to  reject the  ballot  the  same  as an  over  vote                                                            
situation.                                                                                                                      
                                                                                                                                
LT. GOVERNOR ULMER  said she is concerned about voters  being misled                                                            
into  thinking  that  their  vote  counted  if  their  ballot  isn't                                                            
immediately rejected if  they vote for a candidate that they are not                                                            
permitted to vote  for. It's very different for the  Acuvote machine                                                            
to reject  the vote by spitting  the ballot  back at the voter  thus                                                            
indicating  a problem and the Acuvote  accepting the ballot  but not                                                            
counting it. The  voter could readily be misled into  thinking their                                                            
vote counted in the later situation.                                                                                            
                                                                                                                                
MR. DIX  said that  is a valid  concern because  if the Acuvote  was                                                            
programmed  to accept and simply not  count a ballot that  was voted                                                            
improperly, then the voter  would have no indication that their vote                                                            
did not count.                                                                                                                  
                                                                                                                                
LT. GOVERNOR  ULMER wanted that on  the record because she  believes                                                            
there  is a  misconception  about  how the  technology,  the  single                                                            
ballot,  voter education,  party  restrictions  and  the rules  that                                                            
could potentially change  at every primary could lead to the kind of                                                            
voter outrage  as that experienced  in Florida when people  learned,                                                            
after  the fact,  that their  vote did not  count.  It's not only  a                                                            
problem  of voters being  misled,  but also a  problem for  election                                                            
workers because  they can't  be asked to be  in the voter  education                                                            
business. She urged caution,  and said that perhaps it would be less                                                            
confusing to have seven  ballots than having just one ballot and the                                                            
potential that the vote won't be counted.                                                                                       
                                                                                                                                
CHAIRMAN THERRIAULT  asked whether technology allows  for the use of                                                            
a colored  marker that the  scanner won't pick  up. If so,  then the                                                            
election worker could circle  the block of candidates that the voter                                                            
was permitted  to vote for and not  have to worry about the  scanner                                                            
trying to read the colored markings.                                                                                            
                                                                                                                                
MR. CLARK said  you wouldn't want  to rely on color for that  reason                                                            
or build  a system around  that tendency.  Although the colors  blue                                                            
and black are read best,  it would be difficult to work in the other                                                            
direction,  and  try to  find  a color  that  was invisible  to  the                                                            
scanner.                                                                                                                        
                                                                                                                                
CHAIRMAN  THERRIAULT wasn't  necessarily thinking  about filling  in                                                            
the ovals  but of putting  a square around  the block of  candidates                                                            
that the voter was permitted to vote for.                                                                                       
                                                                                                                                
MR. CLARK said  that the active area of the ballot  is the only area                                                            
scanned but you couldn't depend on a color not being picked up.                                                                 
                                                                                                                                
CHAIRMAN  THERRIAULT  asked whether  a  fold through  an  oval on  a                                                            
ballot could trigger a positive vote when it was unintended.                                                                    
                                                                                                                                
MR. CLARK said  that their system  scans the ballot and looks  for a                                                            
certain percentage  of color and,  as in any scanning system,  there                                                            
is the  possibility of a  false reading.  However, their system  has                                                            
sophisticated  leading edge optical  technology for filtering  those                                                            
types of problems.                                                                                                              
                                                                                                                                
Number 1616                                                                                                                     
                                                                                                                                
CHAIRMAN  THERRIAULT  thanked  Mr.  Clark  and  Mr.  Dix  for  their                                                            
participation.                                                                                                                  
                                                                                                                                
RANDY RUEDRICH,  Task Force  participant for  the Republican  Party,                                                            
agreed  that the 30-day  requirement  for party  participation  is a                                                            
proper   consideration.  He   also  agreed   that  the  party   rule                                                            
notification proposal  is reasonable and it is in  the best interest                                                            
of the  State, the parties  and the candidates  to have the  playing                                                            
field defined well in advance of the election.                                                                                  
                                                                                                                                
He  disagreed  with  the  proposal  in  Section  15.25.010  for  the                                                            
multiple  ballot process  and thoroughly  appreciated  the  previous                                                            
discussion. The technology  available today will help the State "get                                                            
to a good election process for our primary candidate selection."                                                                
                                                                                                                                
CHAIRMAN THERRIAULT  wanted to clarify  that the September  1st date                                                            
is acceptable. He thought  he remembered the Task Force discussing a                                                            
number of different dates.                                                                                                      
                                                                                                                                
MR. RUEDRICH said that  somewhere between September 1 and November 1                                                            
is reasonable  as  far as  he is  concerned.  If a  date later  than                                                            
November 1st is selected  for starting the rule making process, then                                                            
undue pressure  is placed on the candidates  and on the Division  of                                                            
Elections.                                                                                                                      
                                                                                                                                
CHAIRMAN THERRIAULT asked  whether he was on-line for the discussion                                                            
about the need  for the legislature  to spell out the framework  and                                                            
if so, what his comments are.                                                                                                   
                                                                                                                                
MR. RUEDRICH  doesn't feel there's  any overwhelming need  to change                                                            
the statutes. The parties  could work with the Lt. Governor's office                                                            
to implement a viable process  that is consistent with the intent of                                                            
the State and the Supreme Court.                                                                                                
                                                                                                                                
SENATOR PHILLIPS  asked whether  he heard  his comments on  skipping                                                            
the primary and going directly to the general election.                                                                         
                                                                                                                                
MR. RUEDRICH  heard  the discussion  and he agrees  with the  former                                                            
attorney  general that,  "we're far  better served  to have a  party                                                            
process to select candidates as we have today."                                                                                 
                                                                                                                                
SENATOR PHILLIPS said that is from a party point of view.                                                                       
                                                                                                                                
MR. RUEDRICH  disagreed saying that  it was in the interests  of the                                                            
State. The best candidates are selected using the party process.                                                                
                                                                                                                                
SENATOR  PHILLIPS  said, his  constituents  "hate this  thing,  they                                                            
absolutely hate  it and this is coming from not only  non-partisans,                                                            
Democrats,  but as well  as Republicans.  Maybe  I have a  different                                                            
district  but this is  one thing  that really,  talk about  venting,                                                            
they vented on the Republican  Party of this by limiting the ability                                                            
of Alaskan  voter to have a say, I'm  not going to say a  right, but                                                            
the ability to pick the candidate."                                                                                             
                                                                                                                                
MR. RUEDRICH said what  they are proposing, and the rule since 1992,                                                            
is not  at all  what  has been  done either  is 1992,  1994 or  2000                                                            
election.  The rule as it  was implemented,  with the technology  of                                                            
the day in 1992,  required a voter to select a Republican  ballot or                                                            
the other  ballot.  It took  no notice of  Section  3 of the  rules,                                                            
which allows  all voters  to vote  for any candidate  on the  ballot                                                            
without restriction.                                                                                                            
                                                                                                                                
Using the technology  available today,  voters should be  allowed to                                                            
participate  in a primary  process  as the rule  envisions. This  is                                                            
much  broader  and  would allow  a  non-partisan  or  undeclared  or                                                            
Republican  to  vote  for  another  primary  candidate  if  they  so                                                            
desired.                                                                                                                        
                                                                                                                                
CHAIRMAN  THERRIAULT cautioned  that it is  necessary to take  turns                                                            
asking questions  and waiting  for the answers  to be given  so that                                                            
the written record is clear.                                                                                                    
                                                                                                                                
SENATOR PHILLIPS  said that  he respects  Mr. Ruedrich's views  but,                                                            
"this gets  his back side up because  I have a constituency  that I,                                                            
at  least try  to  represent  their  point of  view,  regardless  of                                                            
party."                                                                                                                         
                                                                                                                                
CHAIRMAN  THERRIAULT said  Christian Warren  and Al Anders  would be                                                            
heard next.                                                                                                                     
                                                                                                                                
CHRISTIAN WARREN,  Alaska Libertarian  Party member, testified  that                                                            
he wouldn't  be  able to  improve on  anything that  Jim Sykes  said                                                            
regarding SB 127  and SB 146 but he does want to comment  on several                                                            
items former attorney general, Avrum Gross, discussed.                                                                          
                                                                                                                                
First,  there is time  to evaluate  alternative  systems from  those                                                            
presently used. He questions  the premise that the current system is                                                            
optimal.  He believes that  some Task Force  proposals are  cosmetic                                                            
alterations  that mask an inherent  defect in the system,  as it now                                                            
exists.  He is pleased  that the  matter is  before the legislature                                                             
where  there is  a  deliberative  process  being undertaken.  It  is                                                            
unacceptable  for this decision  to be made  by either executive  or                                                            
judicial fiat.  Clearly, the legislature  has plenary power  in this                                                            
area and is obliged to exercise it.                                                                                             
                                                                                                                                
Next  he  argued   that  the  State  should  not   be  driven  by  a                                                            
"technological  imperative." The Alaska  Libertarian Party  would be                                                            
happy  with a  convention  system  as proposed  by Mr.  Sykes.  "The                                                            
objection  to this seems to  be that it activates  a right  that you                                                            
should  not be penalized  for  so doing.  Clearly, if  a man owns  a                                                            
house, he's  expected to pay property  taxes on it. If a  man wishes                                                            
to exercise his God given  and constitutionally recognized rights to                                                            
keep and bear  arms, even in a fairly liberal state  you're expected                                                            
to  pay  a concealed  hand  gun  permit  fee  to do  so.  These  are                                                            
reasonable  restrictions  that  are  easily met  and  therefore  not                                                            
penalties imposed  but the cost of  enjoying a particular  advantage                                                            
over an alternative set of circumstances."                                                                                      
                                                                                                                                
Number 1135                                                                                                                     
                                                                                                                                
AL  ANDERS,  Alaska  Libertarian   Party  member,  agrees  with  the                                                            
proposal  offered by Mr.  Sykes. Election workers  would have  to be                                                            
knowledgeable  of all rules and all  parties if the voting  machines                                                            
was programmed to reject  ballots and they were expected to help the                                                            
voter to recast  their ballot. If there are seven  parties and seven                                                            
different sets of rules,  he has trouble believing that all election                                                            
workers will be fully informed.                                                                                                 
                                                                                                                                
MARK CHRYSON,  Chairman of the Alaska  Independent Party,  testified                                                            
that his  party is the third  largest third  party in any of  the 50                                                            
states.  He  said that  Alaska  in  unique with  its  six  political                                                            
parties.                                                                                                                        
                                                                                                                                
The Alaska Independence Party doesn't support SCR 8 in any way.                                                                 
                                                                                                                                
SB 127 has  many features that AIP  likes. It empowers the  party to                                                            
ensure  that only party  members are  involved in  the selection  of                                                            
their  own candidates.  Also,  it allows  the AIP  to enforce  party                                                            
bylaws to ensure that the  people who signed on to run as candidates                                                            
are  actually  AIP  members  who have  signed  the  political  party                                                            
platform.  This is the only  way they feel  that their party  ideals                                                            
are accurately represented.                                                                                                     
                                                                                                                                
AIP has  a by-law, which  states that only  approved members  of the                                                            
Alaska Independence  Party may run for political office.  He doesn't                                                            
believe that  Lt. Governor Ulmer has  contacted the AIP to  check to                                                            
see that candidates  who filed under  AIP are actually approved.  He                                                            
feels that the  Division of Elections doesn't uniformly  enforce all                                                            
the AIP bylaws.                                                                                                                 
                                                                                                                                
They have no real problem  with the elective primary so long as they                                                            
are able to veto those  individuals running under their party banner                                                            
who don't support their ideals and goals.                                                                                       
                                                                                                                                
SB 146 will cause "more  confusion than the Republicans ever dreamed                                                            
of causing  from  1992 on."  He was  on the  ballot  for the  closed                                                            
primary  in  1992. There  were  many  non-partisan  and Independent                                                             
voters who wanted  to vote for him but were unable  to do so because                                                            
they selected the Republican primary ballot.                                                                                    
                                                                                                                                
He  reminded committee  members  that  instant  runoff  voting is  a                                                            
viable alternative  and it  will be on the  ballot in 2002  "whether                                                            
you like it or not."                                                                                                            
                                                                                                                                
It is the legislature's  responsibility to act and this shouldn't be                                                            
passed along as a political hot potato.                                                                                         
Vogler  v Alaska  empowered  third  parties to  get  on the  primary                                                            
ballot. He  doesn't think  that Mr. Vogler  envisioned the  day when                                                            
what is  experienced  today is  actually the  case. The Independent                                                             
Party is in  the primary process simply  because they have  no legal                                                            
alternative  but to  participate  in the  primary  process. If  they                                                            
could nominate candidates by convention they would do so.                                                                       
                                                                                                                                
In closing, he charged  that the Task Force was composed of no third                                                            
party members,  no moderate Republican,  no Libertarian,  no AIP and                                                            
no Green Party  member. It was made up of Republicans  and Democrats                                                            
alone and  in the  State of Alaska  these two  parties comprise  not                                                            
more than 40 percent of the registered voters combined.                                                                         
                                                                                                                                
CHAIRMAN THERRIAULT thanked Mr. Chryson for his testimony.                                                                      
                                                                                                                                
SB 146 was held in committee.                                                                                                   
                                                                                                                                
Number 567                                                                                                                      
                                                                                                                                
                                                                                                                                
                  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.                                                                                                          
                                                                                                                                
                                                                                                                                
        SCR  8-POLITICAL PARTIES BLANKET PRIMARY ELECTIONS                                                                  
                                                                                                                                
SCR 8 was discussed in general terms during the hearings of SB 146                                                              
and SB 127. The concurrent resolution was heard and held.                                                                       
                                                                                                                                
The meeting was adjourned at 5:17 p.m.                                                                                          

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