Legislature(2001 - 2002)
03/22/2001 03:37 PM Senate STA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ 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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