SJR 40 - CONST AM:ELECTION & TERMS OF GOV & LT GOV CHAIRMAN KOTT announced that the committee would be taking up CS For Senate Joint Resolution No. 40(RLS) am, proposing amendments to the Constitution of the State of Alaska providing that the governor and lieutenant governor be elected by a majority vote; and changing the term of office of the governor and lieutenant governor. Number 0053 JIM POUND, Staff to Senator Robin Taylor, Alaska State Legislature, indicated that SJR 40 was brought up because, with the exception of the 1998 "confusion election," the legislature has not worked with a governor or lieutenant governor elected by the majority of the voters since 1970, when Governor Bill Egan received 51.34 percent of the votes. This lack of majority in every election tends to create low voter turnout; many people feel that their votes do not not count if they do not vote for the right person. He explained that SJR 40 will give the public the opportunity to vote, should [the legislature] decide to pass it. MR. POUND told members that under SJR 40 the races for governor and lieutenant governor will be determined by a majority vote of 50 percent plus one vote. For simplicity, the resolution will only address gubernatorial races. The next Alaska State Legislature will be responsible for the runoff election, which will be handled in law as opposed to by resolution. Currently more than half of Alaska's population is already familiar with the runoff process because it is required in the Anchorage municipal election. Mr. Pound concluded that SJR 40 means that the next statewide elected officials will truly be representatives of the majority of Alaskans. Number 0181 REPRESENTATIVE CROFT pointed out that there have been legislative races where there were only two people, and the vote was so close that neither received 50 percent of the vote - for example, 49.8 percent against 49.5 percent. He wondered whether, if neither gubernatorial candidate got 50 percent, they would have to have a runoff against each other. MR. POUND explained that there always have been at least five parties in the gubernatorial race; therefore, the possibility of that happening would be slim. Presently for the governor's and lieutenant governor's race, listed are the Alaska Independence Party, Democratic Party of Alaska, Green Party of Alaska, Libertarian Party, Republican Moderate Party, Inc., and the Republican Party of Alaska. There are also two limited political parties: the Natural Law Party and the Reform Party. REPRESENTATIVE CROFT asked whether Arizona had tried this. MR. POUND said that he is not sure. He explained that one state had set up something, but it was a different type of situation where it went back to the legislature to make the final decision. Number 0332 CHAIRMAN KOTT asked whether Louisiana has a similar system. He said that he believes in Louisiana the House and Senate members all run in the primary election, and if one member gets 50 percent plus one vote, then that person is automatically declared the winner. If no candidate receives 50 percent plus one vote, then the two top candidates advance to the general election. REPRESENTATIVE GREEN asked whether [candidates] could be of the same party. CHAIRMAN KOTT affirmed that. REPRESENTATIVE CROFT requested clarification that [the governor and lieutenant governor who were elected under this new system] would be sworn in on the first Monday of December, as usual, but if there was a runoff the date would be changed to the third of February. He asked why they would wait so long. MR. POUND explained that it was a request from the Division of Elections in order to give them time. REPRESENTATIVE CROFT pointed out that ballots are sent to the military worldwide 60 days before the election. MR. POUND affirmed that. Number 0503 GAIL FENUMIAI, Election Program Specialist, Division of Elections, Office of the Lieutenant Governor, advised members that the Division of Elections has said that a runoff election could take place within the time frame put forth by CSSJR 40(RLS) am, but it does not take into account recounts or any litigation that may take place after the general election. It appears that the window set forth by CSSJR 40(RLS) am would allow for about a four-day period where any recounts or litigation could take place, but a statewide recount would take longer than four days. With litigation, she added, they have no control over how long that would take. Number 0570 SENATOR TIM KELLY, Alaska State Legislature, [who had originated the amendment to SJR 40 that added Section 2] wondered if the same thing is true with the general election. He pointed out that the governor takes office the first Monday in December, and they do not certify until November 30. He asked if they have the same problem with the status quo. MS. FENUMIAI responded that in 1994 a statewide recount was done in three days; however, no litigation was filed after that. There is the opportunity for litigation to be filed ten days after an election is certified. She noted that the time frame set forth did allow for the 60-day special advanced ballots to be sent to the military. Number 0605 REPRESENTATIVE ROKEBERG wondered if the Division of Elections keeps track of the lateness of the overseas ballots, and if they would be able to compile typical general election returns. MS. FENUMIAI explained that in the 1998 general election she was asked how many special advanced military ballots they had sent out, and she had indicated they sent 382. She said she does not know, off the top of her head, how many of those came back. She indicated that they send the official ballots to those voters, and they have the opportunity to vote both; their special advanced ballot is held until the fifteenth day following the election, and if their official ballot does not come in, the special advanced ballot is counted. REPRESENTATIVE ROKEBERG asked whether the special advanced ballot has all of the candidates on it. MS. FENUMIAI responded that a special advanced ballot for a general election would be sent with a list of candidates who had appeared on the primary election ballot, with instructions. She indicated voters can either write in the name of a candidate or write in the party affiliation that they choose to vote for. They are informed that if they write in the name of a candidate that does not advance to the general election, then it would be an invalid vote. Number 0747 REPRESENTATIVE GREEN asked what the sequence of events is for a normal election. And if there is a runoff, why does it take so long? MS. FENUMIAI explained that [the division] had prepared a tentative calender based on the 2002 gubernatorial election. Election day is Tuesday, November 5, and a target certification date would be November 29. They cannot certify any earlier than the fifteenth day after the election because those overseas ballots have fifteen days to be received at the Division of Elections. In response to a question by Representative Green, Ms. Fenumiai clarified that November 20 would be the last day to receive military overseas ballots. It takes two to three weeks to certify a statewide election when there are multiple candidates. Based on the time line if a runoff were needed and no recounts or litigation took place, the Division of Elections would mail special advanced ballots on November 30, and the runoff election day would be set on the January 28, or 60 days from the date that the special advanced ballots were sent out. REPRESENTATIVE GREEN wondered if that is by statute. MS. FENUMIAI replied that the special advanced ballots, by statute, are to be sent out 60 days prior to any statewide primary, general or special election. REPRESENTATIVE GREEN asked whether that is a state law. MS. FENUMIAI affirmed that it is in state statute. She continued. The day after the election is certified, if there were no recounts requested, the sixtieth day past that day would be January 28, which would be election day. The fifteenth day following that would be the February 12, and certification could take place shortly after that. All the precinct work and other absentee and question ballots would be reviewed following the election, starting about the tenth day after the election. She added that with one race the certification process is a bit easier than with multiple races on a ballot. REPRESENTATIVE GREEN requested clarification about the time line. MS. FENUMIAI explained that based on the calender for the 2002 gubernatorial election, February 12 would be the fifteenth day following the election day, and the third Monday or Tuesday would be February 17, which would be the date that the proposed amendment to the Constitution of the State of Alaska [SJR 40] would have the governor sworn in. Number 0970 REPRESENTATIVE MURKOWSKI asked whether the Accu-Vote process shortens the certification at all. MS. FENUMIAI said it does somewhat, but not by weeks. For precincts with Accu-Vote machines, it makes the precinct materials easier to go through when the state review board goes through audits and looks through all the precinct results. However, there still are more than 170 hand-count precincts where it takes a lot longer. REPRESENTATIVE CROFT said he is still wondering if other states are doing this on the gubernatorial level. Number 1039 MS. FENUMIAI indicated that Arizona did it for one election; it was a constitutional amendment that passed. However, they had a gubernatorial race in which no candidate received 50 percent plus one, so they had a runoff election in January or February, and [the constitutional amendment] was then repealed, right after that, because the voters and the candidates did not like it. REPRESENTATIVE CROFT wondered if Ms. Fenumiai knew what the turnout was in that gubernatorial race. MS. FENUMIAI indicated she didn't have that information but could get it from the Arizona Division of Elections. REPRESENTATIVE CROFT requested confirmation that basically the main constraint in the time line is the 60 days given to the military. MS. FENUMIAI clarified that the 60 days is the biggest period of time that [the Division of Elections] needs to make sure the voters get their ballots. Number 1109 REPRESENTATIVE GREEN asked if this particular year is the worst situation as far as when the third Tuesday comes after the certification; there are only four days, he said, and most times there will more than a week. MS. FENUMIAI said she is not sure. REPRESENTATIVE GREEN wondered if [the Division of Elections] was able to do a single ballot in a week before the more streamline voting capability [Accu-Vote]. MS. FENUMIAI responded no; they had used the Accu-Vote machine in the September election. The certification process can start before the last day to receive military and overseas ballots, and they generally start the tenth day following the election day. She believes that they had finished on the following Friday, so it took seven days to certify the election - day 17 following election day. If they look at the dates presented [in SJR 40], it would be about February 14, 2003, and the third Monday falls on February 17, 2003. REPRESENTATIVE GREEN said it would be well down the line, even in a close year like this. Number 1212 REPRESENTATIVE ROKEBERG wondered what would happen if the statute were changed from 60 days to 45 days, and whether it would cause any problems or disenfranchise the overseas folks. MS. FENUMIAI replied that the potential is there for it to disenfranchise some voters. She said they do not have a way to record when those people receive their ballots. She noted that they have had problems getting materials just to Kodiak because of weather problems. Number 1264 SENATOR KELLY stated: In terms of the legislature, as set by the constitution, we are supposed to meet by the fourth of January or otherwise prescribed by law, and we've otherwise prescribed ourselves, that in election years, the third Tuesday in January, and in non-gubernatorial years, it is the second Tuesday in January. The way that the constitutional amendment is framed is we've also said for that third Monday in February or otherwise prescribed by law. If the constitutional amendment passes, it would be very possible for the legislature to come back and enact changes to election statutes (indisc.--simult. speech). As I understand it, we have a federal requirement for some type of absentee ballot program, but there is a federal postcard absentee ballot that we could use instead of the 60-day state requirement we're currently using. So, I think what you're going to find is if, in fact, this constitutional amendment passes, you'd probably rewrite some of the election statutes so that you can probably reuse that period between the general election and the third Monday in February quite a bit - this statutory change. But then, remember, statutory change has to pass the legislature, has to be either okayed or overridden on the third floor, has to be approved by the Department of Justice because of the [Voting] Rights Act, so it's kind of an involved process, but it can be done. It probably shouldn't be tried until after this may or may not pass the public. Number 1359 AVRUM GROSS came forward to testify. He told members that he has been a resident of Alaska for 40 years and has served in a number of positions in government. Most recently, he was Attorney General for six years, and he indicated that he has some familiarity with the election process. He said that he was involved with the Hickel v. Hammond election case, which was one of the most highly contested litigations over this matter in history. MR. GROSS told members he honestly believes this [SJR 40] is not a good idea, both from a theoretical viewpoint and a practical viewpoint. Unfortunately, it has a lovely ring to it, as did Mr. Pound's comment that this will result in a governor who is truly representative of the majority of Alaskans. Mr. Gross said if that were truly what [the resolution] did, he would support it, but it does not. MR. GROSS explained that first, the purpose of a gubernatorial election is to find out whom Alaskans want their governor to be for four years; that is done with a primary election and a general election. The existing law is that the person who gets the most votes in the gubernatorial election wins, whether it is 51 percent or 49 percent [of the vote]. It is admittedly a very imperfect system, because one doesn't really know whether the person who gets the plurality in a gubernatorial election would truly represent the majority of Alaskans. Many Alaskans do not vote, and who knows how that would break out statistically. Although the current system is imperfect, it is much better than the system proposed in this constitutional amendment [SJR 40]. MR. GROSS further explained the way it would work. If the vote were split [three ways] at 48 percent, 42 percent and 10 percent, this constitutional amendment [SJR 40] proposes to hold another statewide election solely for the purpose of running off the gubernatorial candidates as quickly thereafter as the runoff election could be held. There would have been an election at the end of August and one in November, so this would be the third statewide election in four months - during the depths of winter in Alaska and the middle of the Christmas season. That is a time absolutely calculated to draw out the minimal turnout possible in any election. In a general election, at least there are legislators running and initiatives on the ballot to bring voters into the voting booth as well. Now, however, this constitutional amendment [SJR 40] proposes to hold solely a gubernatorial runoff in the dead of winter. MR. GROSS further stated that there would now be two candidates remaining, and one would get 50.1 percent of the vote. He wondered if that is truly representative among the majority of Alaskans. Suppose the candidate that gets 50.1 percent of the votes in the runoff election has less votes than the candidate that got 48 percent of the votes in the general election, which is highly likely to occur. There will be a substantially reduced turnout, and a vastly reduced pot of Alaskans will pick the governor. The desire should be to have the governor selected at the largest possible of turnout of statewide voters, not the smallest - and this would be the smallest. MR. GROSS told members that practical problems are equally overwhelming. In addition to having an election decided by the smallest pool of voters possible, people will be asked to run for governor essentially three times. Candidates will have to raise money for three elections. The voters would have to withstand campaigning for another month or two. And it would cost the state a great deal of money to run another election. The costs to public policy would be substantial. MR. GROSS pointed out that assuming everything goes smoothly, there is an election in December, and the governor is elected and takes office in February, the legislature would have been in session for a month already. There would have been a lame duck governor whose budget was worthless, and there would be no commissioners who have any authority to deal with the subject matter of their legislative agendas. There would be no budget director. There would be no one but the outgoing administration for a full month. Mr. Gross said he supposes that they could change the whole schedule around if they wanted to, but this [SJR 40] does not do that. He thinks it is a waste of public resources. MR. GROSS concluded that there is no perfect way to select a governor. The way that exists currently has worked very well; there have been some good governors in this state from both parties. He said that there is no reason to fix something when it is not broken. The proposed constitutional amendment [SJR 40] will not result in any better representation of the people than the current system. He believes that it will result in a far worse representation. Number 1739 REPRESENTATIVE GREEN clarified that the special election would be toward the end of January, rather than at Christmas. MR. GROSS indicated it would be the third election, however, in the depths of winter. REPRESENTATIVE GREEN indicated his belief that 50 percent plus one vote of that reduced number of voters would still be better than 35 or 39 percent of the larger group. MR. GROSS asked, "But how about 48 percent of 49 percent?" REPRESENTATIVE GREEN said, "That's true. You indicated that was a likely. I would certainly submit that that's probably not a likelihood. If you got 49 percent in a three- or four- or five- candidate race, the chances of you getting less than that later, I would think, would be, very, very minimal, but those are opinions; those aren't facts." MR. GROSS suggesting comparing the primary election with the general election turnout. Noting that the gubernatorial runoff wouldn't include legislative races, congressional races, initiatives, or other issues, he said he guesses that [the voter turnout] would be substantially lower than that for the primary vote. REPRESENTATIVE GREEN said these are opinions. MR. GROSS agreed but said it is borne out by practical experience. CHAIRMAN KOTT suggested they will see the results in Anchorage in a few weeks as to whether the [municipal] runoff election has a lower or higher turnout, because there will be just one race, and there will be no propositions or ballot initiatives. Number 1835 REPRESENTATIVE JAMES indicated about four years ago she sent a letter to all the people registered in her district who hadn't voted, asking them to send her a card back saying why they did not vote. She said she got a huge box of cards back. She explained that there is a feeling out there that people's votes don't count; however, the main reason that people didn't vote was because they were too busy doing something else. In her lifetime, she has been trying to find a way to get more people interested in voting. She has found, in talking to people on the street or at the store or on an airplane, that people are disappointed that more than half of the people do not select the governor. She suggested putting this proposed constitutional amendment to the vote of the people. MR. GROSS noted that only when the legislature determines that a proposed constitutional amendment makes good public sense is it supposed to be put to the people. He agreed that if two-thirds of the legislators think it is a good idea, then it should be sent out to the public for a vote. However, if two-thirds do not think it is a good idea, then it should not be sent out. Number 2022 REPRESENTATIVE CROFT said he would be willing to bet that Arizona, where they tried this once and rejected it, had a substantially lower turnout in the runoff election. He said he thought that Mr. Gross did a good job of going over the theoretical and practical issues, but he wondered about the details. He referred to page 1, lines 7 and 8 of CSSJR 40(RLS) am, indicating the [constitution] now says that the candidate receiving the greatest number of votes shall be governor. However, [if amended] the constitution is going to read, "The candidate receiving at least 50 percent plus one of the votes cast for office shall be governor." He explained that it is not unheard of to have very close gubernatorial races. He asked Mr. Gross: If the runoff election resulted in a 49.8 percent vote for Governor A and 49.9 percent vote for Governor B, with 100 write-ins, who does he think the governor would be? MR. GROSS said he didn't know. He explained that he was involved in two statewide elections in which there were two major candidates: Egan versus Hammond, and Hammond versus Hickel. Both were decided by a total of 270 votes out of several hundred votes cast. He noted that there is a history of that, and if this constitutional amendment [SJR 40] passes, they are basically saying that there will be three elections for governor every single time. He said he cannot imagine that. He added that his political instinct tells him that the turnout in Arizona had dropped precipitously and do so here, too. REPRESENTATIVE CROFT suggested that there might be four elections. MR. GROSS agreed that if a candidate had to get 50 percent plus one vote, the state would have to keep having elections until someone got 50 percent plus one. REPRESENTATIVE CROFT pointed out that there are some very, very close elections, and there are sitting members of the Alaska State Legislature who didn't receive 50 percent even though they were in straight head-to-head races. MR. GROSS said he assumes that the legislature could deal with that in statute, but at the same time it will not guarantee that someone represents the majority of the voters. Number 2174 REPRESENTATIVE ROKEBERG recalled a race that he was involved in where there was a third-party candidate; he provided details and said that situation can be devastating. He wondered if a statutory change restricting the number of parties on a ballot would be a better fix than a constitutional change that would essentially do the same thing. Number 2285 MR. GROSS pointed out that there are constitutional limitations on the ability to limit parties, as well, to the extent that the state can prohibit somebody from running for office under any kind of a party label. He restated that the system is far from perfect, and there can be situations where people are victimized. There also has been a gubernatorial race in Alaska where a governor received less than 40 percent of the vote. However, this type of a fix [SJR 40] is going to create many, many more problems than what they have now. REPRESENTATIVE ROKEBERG indicated there are some constitutional parameters on disallowing or allowing additional parties to participate. MR. GROSS said from time to time third parties arise and create real contortions in the democratic system. However, if they stay around long enough, the Democrats or Republicans seem to absorb them. He thinks that, in the long run, the system works very well. No system is perfect, and third parties cause some problems, but in the end they inject some energy into the political process, and the major parties swallow them up and take some of that energy. REPRESENTATIVE GREEN referred to the list in the packet of the Governor/Lieutenant Governor election results and cited some figures from it. TAPE 00-69, SIDE B Number 0020 TREFON ANGASAN, Bristol Bay Native Association (BBNA), testified via teleconference from Anchorage. He informed the committee that BBNA is opposed to the passage of SJR 40. The association is opposed to the process being utilized. Mr. Angasan related BBNA's belief that the proposed amendment is on the fast track. Usually when there are constitutional amendments that come before the electorate, there are discussions in various forums such as community meetings. However, when there have only been two days to discuss a proposed amendment, it leaves him to ponder the impacts to rural Alaska. MR. ANGASAN expressed concern that [SJR 40] would negatively impact the voters in rural Alaska. The turnout for second and third elections will dwindle, resulting in the voice of rural Alaska dwindling as well. Furthermore, the election costs will be greater and the campaign season will be longer. Mr. Angasan emphasized that "we" have a difficult time coming out for the general election under the current process. He said [BBNA] believes [SJR 40] will have a tremendous impact on the voice of the minority voters and will be challenged under the Voting Rights Act. Number 0213 ROBERT WILLARD, JR., Alaska Native Brotherhood (ANB), informed the committee that he is from Angoon, although he resides in Juneau. He told the committee that the ANB opposes SJR 40. The statewide elections have served well, and [ANB] sees no reason for a change such as that called for in SJR 40. This is particularly true in Southeast Alaska, where cultural and tribal activity is timed to accommodate the general election in November. Therefore, a runoff election in December would disrupt the current system of scheduling, resulting in a lower voter turnout in the Native community. If tribal/cultural activity conflicted with a runoff election, tribal members would have to continue participation in their cultural events, resulting in less interest in a runoff election. Furthermore, a runoff election would be costly, and, therefore, why would a candidate bother with a rural Alaska campaign? Mr. Willard also expressed concern from the ANB with regard to who would be appointed to serve on the boards and commissions that are put together in a hurry [as a result of a governor coming into office late]. Number 0347 JIM BALDWIN, Assistant Attorney General, Governmental Affairs Section, Civil Division (Juneau), Department of Law, came forward to address some technical aspects of the resolution. He referred to page 1, Section 2, where there is an internal conflict. The first sentence in that section is an existing provision of the state constitution, he noted, which says that the term of office for the governor is four years. However, the new language has different start and end dates for the follow-on terms. MR. BALDWIN explained that if a governor is elected during a general election, which does not require a runoff election, that governor would have a different term. However, if the aforementioned governor is followed by a governor that is elected at a runoff election, that would conflict with the four-year-term language. Therefore, it could be a legal problem if the pre- sitting governor viewed his/her term as being cut off. Mr. Baldwin specified that he didn't have a solution for this dilemma. He pointed out that the deleted language reads, "December four years later," which covered the four-year term. However, under the new language, there could be a situation in which the term could be shorter or longer than four years, depending upon the mixture of general-election-elected governors and a runoff-elected governors. This is a technical problem that should be reviewed and solved by the legislative attorneys. MR. BALDWIN turned to possible unintended results [with SJR 40]. He noted that elections adhere to many time lines and deadlines by law. He recalled Judge Stewart's advice to this committee that constitutional amendments are very technical in nature, and the best thing to do is to let them sit and consider the effect because there could be unintended consequences. Mr. Baldwin referred to Article I, Initiatives, in the state constitution, which includes a provision addressing the referendum. The referendum is not a process that is used very much; it requires obtaining many signatures in a short time. However, with groups becoming more organized it is possible that the referendum process could come back into vogue. MR. BALDWIN noted that the constitution says in this section that there are 90 days after the legislature adjourns for an organization to obtain signatures for its certification to file with the governor. Once that occurs, [the referendum] is placed on the first statewide election held more than 180 days after adjournment of the legislature. If such a situation existed this year, for example, it would fall a day after the general election and thus [the referendum] would perhaps qualify for the runoff election. Therefore, the unintended consequence of this resolution would make it easier to have a referendum vote by the following January, in this case. MR. BALDWIN said he doesn't believe that is an intended consequence of [SJR 40]. He pointed out that this was what he found in the hour he had to read over the constitution, and thus he wondered if there are other unintended consequences. He mentioned that he didn't have an opportunity to review the election code. Mr. Baldwin surmised that Senator Kelly would say that there is time to fix this because there is an interim general election, then there would be a gubernatorial election and there would be an intervening legislative session to fix it. MR. BALDWIN said although that may be a solution, he isn't sure. He suggested that a solution would be to look at every reference to a statewide election in the constitution and determine whether that language is desired or not, because the language [in SJR 40] has introduced a strong distinction between a general election and a statewide election. Furthermore, the statewide election term is also used in the initiative section, which refers to the timing of the initiative election that must be held more than 120 days after the adjournment of the legislature. MR. BALDWIN pointed out that there is a difference between referendums and elections. He reiterated that referendums [must be held] 180 days [after the adjournment of the legislature]. Referendums occur when people are unhappy with a measure enacted [by the legislature]; they get a chance to vote on it. Under this resolution, that will occur the January following passage of the measure, he indicated. The way it is now, however, it would occur later than that. Number 0568 MR. BALDWIN informed the committee that one of his responsibilities at the Department [of Law] is to deal with the preclearance of election changes, which would be required with [SJR 40]. He noted that he has always thought that amendments such as this should include a dependent effective date which acknowledges that the amendment's provisions cannot be implemented until they have been precleared by the U.S. Department of Justice or a court. Therefore, he said, it might be appropriate to have an effective date that acknowledges that preclearance is necessary. Number 0677 REPRESENTATIVE JAMES remarked that if there were a referendum, there could be a large turnout for the runoff election. She said that she understood Mr. Baldwin's concern. MR. BALDWIN pointed out that there could be referendum election with a very small turnout, however, and therefore the legislature wouldn't necessarily receive the full opinion of the people. REPRESENTATIVE JAMES restated that the number of people who come out to vote is very distressing to her. She offered her opinion that a second chance at a gubernatorial election might persuade more people to vote. She said she is willing to try anything in order to get people involved in the political process. Number 0772 REPRESENTATIVE MURKOWSKI returned to the preclearance aspect and asked how that would work procedurally. She posed a situation in which SJR 40 is passed by this legislature, is before the voters in November, and passes. She surmised that it would then go before the U.S. Department of Justice for preclearance. She inquired as to the chance that the preclearance would be denied. MR. BALDWIN said it is hard for him to say. That day's testimony has indicated that the minority voters may claim that there would be some retrogression in their voice in the process. Mr. Baldwin explained how preclearance would work. [The state] would petition the U.S. Department of Justice to preclear, which is an administrative process. Although the U.S. Department of Justice has 60 days, the department can request more information, which starts the clock again. Therefore, the process can be spread out. However, at some point action must be taken. If the department decides not to preclear it, the law cannot go into effective, but there is the option to proceed to a three-judge panel in the D.C. Circuit Court in order to obtain judicial preclearance. Number 0866 REPRESENTATIVE MURKOWSKI reiterated that since the amendment would not be in place, there would not be an opportunity for a runoff election in which to determine whether any individuals have been disenfranchised. The preclearance would be based on a situation that has not yet happened. Whether or not any individuals had been disenfranchised would be speculative. She surmised that it would, essentially, entail taking affidavits and testimony from individuals, and the three-judge panel would rule based on that. Number 0913 MR. BALDWIN responded that the Department of Justice could force [the state] to go that way if the department didn't preclear it. The only other alternative would be to go to the three-judge panel. The cases involve the use of statistical theory, sampling and experts in trying to disprove or prove a case, he explained, and the state has the burden of preclearing these things. Furthermore, the Department of Justice Department is very militant about protecting the rights of minority voters. Mr. Baldwin pointed out that HJR 44, passed in a prior year to change the reapportionment process, still hasn't been precleared, although the state is still working with the Department of Justice on that. MR. BALDWIN again suggested having an effective date on these types of resolutions to reflect the true state of the law, because they currently take effect after 45 days or when they are precleared by a court, whichever is later. He said he thinks maybe this should be placed in the drafting to make it clear, until "we get out from underneath Section 5 of the Voting Rights Act." REPRESENTATIVE GREEN indicated that might be an argument to get these [resolutions] done and to the people right away. To his understanding, both Georgia and Arizona have both been precleared on the majority voting rights, although he understands that this is not a guarantee that Alaska would be [precleared]. He stated that while he is not a Native, he has been in several Native villages during the wintertime. He finds it difficult to believe that voting a third time [in one year] would be a hardship, because it would be at the very time when people will probably be closest to the voting polls. With the more modern voting techniques, he said it seems that would help the Natives in the rural villages because of [word-of-mouth] communication. He commented: Those people are not disenfranchised so much as just maybe their decision not to vote, but that's not a disenfranchisement, that's just an attitude of whether they do or don't. But it certainly is going to be convenient for them. I think the mere fact of what it is that they're voting for, we're now down to just two candidates, and this is for the number one job in the state of number one jobs in the nation. We need to get out and vote. Our vote does count. Number 1106 MR. BALDWIN emphasized the good record of comments and evidence needed to preclear these issues with the U.S. Department of Justice. A record should be created for changes in voting procedures, he explained. This helps with preclearance and does not hurt "us". When it has to be done after the fact, the legislature feels powerless in the effort to do that. It has been expressed to him that legislators wish they could participate more in that process. He said, "Now is the time, when it's here in committee, to create those records." When a resolution goes through a committee [rapidly] like it is now, he noted, there is not an opportunity to create a record that can be taken to U.S. Department of Justice to show that the interests of minority voters have been considered. Number 1187 REPRESENTATIVE CROFT pointed out that Article 3, Sections 3 and 4, of the Constitution of the State of Alaska, does not include "as prescribed by law". He referred to Section 2 of CSSJR 40(RLS) am, which read: Section 4. Term of Office. The term of office of the governor is four years. If the governor is elected at  the general election, the term begins [, BEGINNING] at noon on the first Monday in December following the [HIS] election. If the governor is elected at the  runoff election, the term begins [AND ENDING] at noon on the third [FIRST] Monday in February following the  election, unless otherwise provided by law. It ends at  noon on the day when the term of office of the  governor's successor begins under this section [DECEMBER FOUR YEARS LATER]. REPRESENTATIVE CROFT said it appears that the term of the governor can be prescribed by law. Senator Kelly had indicated that it could be shortened up if changes could be made in the election; it could be decided that it could be April or May, and that it could be changed from year to year. The term of the previous governor could "grow or collapse to shrink that," even though the first sentence states that the term of office of the governor is four years. He asked Mr. Baldwin how he reads the sentence, "If the governor is elected at the runoff election, the term begins at noon on the third Monday in February following the election, unless otherwise provided by law." Number 1269 MR. BALDWIN answered, "In my study of the minutes of the prior meetings, I think the intention there is to try to do what Senator Kelly said, to allow kind of a safety valve to adjust for the changing of the terms like that." He said he would presume that the legislature will always act in good faith when it enacts these laws. He also said he understands what Representative Croft is saying about allowing for a change in the terms. He indicated the problem he has is still with the first sentence, which states the term shall be four years. He added, "But later on, it seems to take away from that, and that's the internal inconsistency that I'm worried about." MR. BALDWIN wondered what would happen if a governor had a truncated term and refused to leave until the four years were up. He said he hopes there could be a way to resolve this so there is not that conflict. It is a technical problem that the committee can take care. He indicated he does not have an answer on how to take care of it because there are other problems that people tried to anticipate and fix in earlier committees. He commented, "That's why this thing is starting to look like it's getting baling-wired together here." REPRESENTATIVE CROFT said it would make him very nervous to remove the sentence which states that the term of office of the governor is four years because he thinks some mischief could be done with that end of the term by letting "them go another two years cause we don't like the one that was just elected." MR. BALDWIN indicated there could also be continuing litigation, where a court would have to allow a governor to be seated. Number 1448 REPRESENTATIVE KERTTULA pointed out that there were two testifiers earlier who feel they would be disenfranchised. She asked what was on the record so far that would indicate that would not happen. MR. BALDWIN indicated this is the first time that minority voters have testified on this resolution, to his knowledge. REPRESENTATIVE KERTTULA asked what kind of data have been gathered, statistical or otherwise, on that issue. She wondered how that is actually done. MR. BALDWIN replied that he does not know yet. Typically, they keep track of the turnouts. He added, "I'm sitting here, I'm listening to this testimony for the first time trying to picture what their case would be." He commented that if there are some cultural reasons why [minority voters] would not be available in January, then the U.S. Department of Justice, for example, would be very interested in that information; problems at that time of year with the distribution of ballots, such as in rural areas of Alaska, are issues for the Division of Elections. The U.S. Department of Justice would also be interested in that type of information. Ballots in the rural areas are mostly hand-counted; handling of those ballots is different than dealing with the Accu-Vote system. Mr. Baldwin restated that he isn't sure of what the facts are at this point in time. Number 1560 REPRESENTATIVE KERTTULA asked, "If it's the state's burden, shouldn't that be information that we should know before we make this vote go?" MR. BALDWIN answered yes. He said he thinks that is information that should be developed in the committee as part of the record. He explained that when HJR 44 was to be precleared, the Department of Justice had asked for every scrap of paper that made up the legislative history of HJR 44 and SB 99; the department had wanted to know whether minority voters had communicated with the legislature and whether the legislature had reached out to the minority voters during the consideration of both measures. The department had said, "It's not just good enough to have the minutes of your committees. We want you to go out and transcribe every hearing that was held, every floor debate that was held on the bill. We want verbatim transcriptions." Mr. Baldwin said [the state] did that as well. He pointed out that the Department of Justice is very interested in the legislative process, which is extremely important in the preclearance. For this reason, he implored the committee to consider developing a very good record, but he cautioned that it was awfully late in the session to do that now. Number 1651 REPRESENTATIVE ROKEBERG commented that he is not intimately familiar with the Voting Rights Act. He asked what the U.S. Department of Justice looks at. MR. BALDWIN replied that the Department [of Justice] looks at the effect on the minority voters. If there is no effect on minority voting, then it is usually outside their area of consideration. REPRESENTATIVE ROKEBERG asked if it is true that the Department [of Justice] is concerned only with the voting rights of the minority, not the majority. MR. BALDWIN responded that those were not his words. He clarified that if it doesn't have any effect on a minority, then there will not be a preclearance problem. If it has an unintended effect on minority voters, however, [the Department of Justice] will take their action based on that. Number 1749 REPRESENTATIVE JAMES requested a definition of minority voters. MR. BALDWIN explained that minority voters in Alaska are those who have another language. REPRESENTATIVE JAMES wondered if that includes everyone who has a second language or just Natives. MR. BALDWIN stated that Natives and African-Americans qualify in other contexts under the law. Principally, the term "minority voter" applies to the Native voter in Alaska. This is the main minority voting classification in Alaska. REPRESENTATIVE JAMES asked whether it matters where they are located in the state. MR. BALDWIN said it does not. In some states, there are counties that are subject to Section 5 [of the Voting Rights Act] and not the whole state. However, the entire state of Alaska is covered by Section 5. Number 1842 CHAIRMAN KOTT asked whether Mr. Baldwin had testified in a previous committee. MR. BALDWIN replied that others from the Department of Law had testified earlier on the resolution. However, this is the first time he has testified. When asked by Chairman Kott whether the issues he had testified about had been addressed earlier, Mr. Baldwin indicated the referendum issue had not been brought up previously; that was an issue that the Division of Elections had asked him to look at because he handles most of the work on voting rights and does a lot of work with initiatives and referenda. He concluded, "So, I looked at it specifically for this and I noticed this problem. I think it's a problem. I mean, if you don't care about it, then it's not a problem, but if you happen to care about referendums, it might be a problem if you're adding another election to the mix here and when that referendum election might occur." Number 1943 CHAIRMAN KOTT asked if anyone else wished to testify, then closed public testimony on the resolution. REPRESENTATIVE ROKEBERG asked if there was anyone available from the sponsor's office. CHAIRMAN KOTT told members he was hoping to find someone from the sponsor's office or someone who could speak on behalf of the sponsor to answer some questions. He called an at-ease at 3:35 p.m. CHAIRMAN KOTT called the meeting back to order at 3:55 p.m. and then immediately recessed the House Judiciary Standing Committee to the call of the chair. [Not on tape.] TAPE 00-70, SIDE A Number 0001 CHAIRMAN KOTT brought the meeting back to order at approximately 7:45 p.m. Present at that time were Representatives Kott, Green, Rokeberg and Croft. Representatives James, Kerttula and Murkowski arrived shortly thereafter. [Newly provided to the committee were a memorandum to Senator Kelly from Jack Chenoweth, Assistant Revisor of Statutes, dated April 20, 2000; and a letter in opposition to SJR 40 from Julie Kitka, president of the Alaska Federation of Natives, Inc. (AFN).] CHAIRMAN KOTT referred to concerns addressed by Mr. Baldwin earlier that day. Alluding to the memorandum from Jack Chenoweth, he indicated it answers the first question dealing with the language in Section 4 of CSSJR 40(RLS)am, regarding any possible confusion over the term of office. He noted that there also had been discussion about putting in an effective date that would be tied to preclearance [by the U.S. Department of Justice] or the courts. Number 0106 SENATOR KELLY, referring to the second concern, said he had never seen that done before. He commented, "They either say 'yes' or they don't." He then asked whether Mr. Baldwin had informed the committee about whether [the Department of Justice] had precleared the apportionment constitutional amendment. CHAIRMAN KOTT answered that they had not. Number 0138 REPRESENTATIVE GREEN apologized for having missed some of the earlier portion of the meeting. He asked about the issue regarding a four-year term. CHAIRMAN KOTT indicated Mr. Chenoweth's letter resolves that. He added that those were the only two issues, and he thinks that they have been resolved. Number 0208 REPRESENTATIVE ROKEBERG noted that he had also stepped out of the room for a few moments when Mr. Baldwin was testifying. He asked whether Mr. Baldwin had said there are other references in the constitution that would need to be conformed. CHAIRMAN KOTT asked whether that was during the discussion on the referendum. REPRESENTATIVE JAMES and REPRESENTATIVE ROKEBERG affirmed that. CHAIRMAN KOTT said that may have consequences but is a policy call. REPRESENTATIVE ROKEBERG explained that he wanted to make sure that there was nothing else that Mr. Baldwin had brought up. SENATOR KELLY commented that he would be seriously surprised if somebody brought in a bundle of initiatives right after the general election so that they could get onto a runoff [ballot]. But if they did, so what? It would just increase the turnout. REPRESENTATIVE ROKEBERG asked whether it was for a referendum, however, not an initiative. REPRESENTATIVE JAMES affirmed that. SEVERAL UNIDENTIFIED SPEAKERS said, "Whatever." Number 0293 REPRESENTATIVE MURKOWSKI noted that this resolution had once included federal candidates as well. She asked why it has been narrowed down to just the gubernatorial candidates. SENATOR KELLY answered that the federal candidates were "put into one of the committees in the Senate, kind of on a whim." He explained that the federal candidates bring in a whole host of new questions. For example, a federal law requires voting on congressional candidates to occur on the second Tuesday of November. He continued: We were concerned about the gubernatorial race ... in particular. You cannot reach the governor's race by initiative petition in the State of Alaska. You can reach congressional races, and you can reach legislative races by the initiative. The only way to reach the governor and lieutenant governor's race is through a constitutional amendment. So we decided to concentrate on the race, frankly, closer to home. The other problem, if you get involved with congressional races in a runoff, is that you run into the Twentieth Amendment problem, where Congress is supposed to convene every year on January 3rd. And you could be sitting here, having your person stuck in a runoff, and they're back there organizing, and everybody gets sworn in, and they've all got seniority, and your person's still out here, you know, running around the East Side of Anchorage. And he, you know, gets back there a month late. And as we all know, seniority is everything back there. So, we didn't really want to put any new - potentially new - congressional representatives from Alaska ... behind a potential eight ball on a runoff election. ... And, of course, we're solid at the current time, but any new people that go back there should have every advantage of being there with everybody, being there at the same time ... everybody is. CHAIRMAN KOTT asked whether there were additional questions of the sponsor; none were offered. Number 0480 REPRESENTATIVE GREEN made a motion to move SJR 40 [CSSJR 40(RLS) am] out of committee with individual recommendations and the attached fiscal note. REPRESENTATIVE CROFT objected. He explained that judging from Alaska's history, this will require many governors to run three times - in the primary, general and runoff elections. That increases the cost of elections to both the state and to the individual. It will mean longer election cycles and multiple election cycles. He doesn't see the people of Alaska saying that elections are too cheap, too short or too few. Conversely, he believes that voter turnout in the runoff elections will be low; they will be in the dead of winter, when people would have already gone through two elections. He worries that the state will get the exact opposite result of what they seem to be shooting for - a governor chosen by more of the people. REPRESENTATIVE CROFT addressed the comment of Senator Kelly that the state doesn't want to put the congressional delegation "behind the eight ball by being late." He suggested that this resolution effectively puts governors behind the eight ball, as well, in that it is a substantial shift in the balance [of power]. There will be a governor [taking office] after a runoff, without having been able to assemble, at least provisionally, a cabinet or budget, or being able to get ready to work by the time the legislature goes into session. He thinks that will become the standard situation. Furthermore, in some cases, the governor won't even have been elected by the time the legislature convenes. REPRESENTATIVE CROFT cautioned, on a general level, that the legislature ought to be more careful with constitutional amendments. This resolution had been introduced only three weeks ago, to his knowledge. He agreed with Judge Stewart, who has often talked about an idea - an internal rule, of sorts - that constitutional amendments ought to be introduced in the first [year of a] session and passed in the second, so that there is a full interim for legislators to evaluate the effect. He said that from what he can tell, SJR 40 is a bad idea, but at least it shouldn't be done this quickly. Number 0679 REPRESENTATIVE KERTTULA told fellow members that the greatest problem she has [with SJR 40] is that the only testimony about impacts on minorities had come from Mr. Angasan and Mr. Willard; both had said there would be culturally problems that would affect the voter turnout in the Native community. With that as the only evidence in this record at this point, she suggested it would be difficult to get preclearance. She noted that the letter from Ms. Kitka of the AFN doesn't speak to the cultural aspects or concerns about turnout; rather, it addresses constitutional problems. "When Mr. Baldwin talks about holding things together with baling wire, I'm afraid that that's where this is headed," she concluded. "So I can't support it." Number 0734 REPRESENTATIVE ROKEBERG noted that he had briefly read Ms. Kitka's letter from the AFN. He said he doesn't understand how this resolution would, in any way, affect Alaskan Natives or other residents. He added, "As Representative Green mentioned earlier, ... many villages of Alaska are smaller and self- contained, and particularly in the wintertime, and I don't see the difficulties of going to the polls or of voter interest." He said it would be interesting to see an analysis of voter turnout there versus other areas of the state. SENATOR KELLY suggested that if this passes, groups from all over the state would speak on it, and there would be a huge public debate that would build the kind of record that Mr. Baldwin says is necessary to go before the Department of Justice. People will "talk" at the ballot box, where the decision will be made. Number 0880 REPRESENTATIVE MURKOWSKI told fellow members that she has a couple of concerns with the resolution. First is the implementation aspect, although some concerns have been worked through, and there are things that the legislature can do, statutorily, down the road regarding the time frame involved. She suggested it is really important to look at that, including the lag between when the legislature convenes and when the governor would be in place with his or her commissioners and so forth. That is both a concern to the legislature and to the public. "I would like to think that there's a way that we can work through that," she added. REPRESENTATIVE MURKOWSKI noted that her other concern, looking at the history, is that the state will have three elections - the primary, the general and the runoff. The public already is annoyed by the campaign season, and voter apathy already exists. She cautioned that lengthening the campaign season may engender greater apathy among voters. Number 1005 REPRESENTATIVE ROKEBERG noted that according to statistics provided by the Division of Elections, only 25 percent of the last eight [gubernatorial] elections had resulted in a majority vote [for the winning candidate]. Number 1051 REPRESENTATIVE JAMES brought attention to Ms. Kitka's letter. She said she is insulted by the line that says this is an attempt by irresponsible officeholders to entrench themselves and to upset the balance of powers; she believes it is improper to make those statements. Furthermore, she isn't so convinced, from conversations with folks, that this [process] will keep them from turning out to vote. On the contrary, she believes people may vote in even higher numbers. REPRESENTATIVE JAMES continued. She suggested that if people have the opportunity to "get the second bite at it," they would be able to vote for someone they prefer over the other candidate. When people are elected by less than 50 percent of the vote, she has heard comments that more than half of the people didn't want that person elected; she expressed concern over having the top position in the state being elected that way. If it is a little more trouble, costly and time consuming, she still believes this will ensure that the [governor] has the support of most of the people who voted. Although in the second runoff election there may be fewer voters, there could be more; that is unknown. She emphasized the need to get people out to vote. Number 1202 REPRESENTATIVE GREEN told members, "Just in summary, I would just suggest that while we did hear from Natives themselves saying that this would be an imposition and unfairness to them, I still challenge that statement because of having been to Native villages." He referred to statistics from Arizona, where the figures had dropped from 58 percent to 50 percent in that state's try at this system. He noted that Alaska's governor, by constitutional design, has much more authority than governors in many other states. Although that is good, he agrees with Representative James that the governor should be elected by 50 or more percent of the voters. CHAIRMAN KOTT asked whether there was further discussion, then requested a roll call vote. Voting to move SJR 40 [CSSJR 40(RLS) am] out of committee were Representatives Rokeberg, James, Murkowski, Green and Kott. Voting against it were Representatives Croft and Kerttula. Therefore, CSSJR 40(RLS) am was moved from the House Judiciary Standing Committee by a vote of 5-2.