SB 31 - COUNTING OF WRITE-IN VOTES 1:49:33 PM CHAIR GATTO announced that the final order of business would be CS FOR SENATE BILL NO. 31(JUD), "An Act relating to the counting of write-in votes." [Before the committee was HCS CSSB 31(STA).] 1:49:58 PM SENATOR JOE THOMAS, Alaska State Legislature, as one of the joint prime sponsors, explained that SB 31 would clarify Alaska's statutes by utilizing language recommended by the Alaska Supreme Court in its recent Miller v. Treadwell decision; this language has been "reinforced" by the Alaska Superior Court and the U.S. District Court, and in the 2010 General Election Review conducted by the Office of the Lieutenant Governor. He offered his understanding that the bill's proposed language comes from the federal Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), and that it specifies that the director of the Division of Elections shall use a determination of a voter's intent as the guiding principle when counting and judging a write-in ballot and its validity. Senate Bill 31 incorporates into statute the concept of favoring voter intent, which Alaska's courts have done consistently for over 50 years. The goal of clarifying Alaska's statutes on this issue is twofold: one, to ensure that in future elections, as many Alaskans as possible are enfranchised; and two, to strengthen the perception of Alaska's democratic process. Achieving this goal, and using inclusive rather than exclusive statutory language, will protect the fundamental democratic rights of all voting Alaskans regardless of their backgrounds, abilities, or skills. 1:51:45 PM SENATOR THOMAS indicated that in Miller, the court focused on the language of existing AS 15.15.360(a)(11), which says: (11) A vote for a write-in candidate, other than a write-in vote for governor and lieutenant governor, shall be counted if the oval is filled in for that candidate and if the name, as it appears on the write- in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided. SENATOR THOMAS, mentioning that the challenge which was raised pertained to whether that language meant that the name of a write-in candidate must be written exactly as it appears on the candidate's declaration of candidacy, pointed out that the only declaration of candidacy he has ever seen has been his own. [To address what the court considered to be an ambiguity in statute with regard to minor misspellings of write-in candidates' names, and] in keeping with the court's determination in Miller, [the bill - via Section 1's proposed new AS 15.15.360(d)(5) - stipulates that in counting votes for a write-in candidate, if the intention of the voter can be ascertained, the director of the Division of Elections shall disregard any abbreviation, misspelling, or other minor variation in the form of the name of a candidate]. He offered his understanding that it is the intent of the Division of Elections to also address [the purported ambiguity] by providing [to voters] a list of the names of write-in candidates; this, he ventured, would substantially reduce the number of potential misspellings to begin with, though it won't eliminate them altogether. SENATOR THOMAS, in conclusion, posited that although [the bill] won't prevent future legal challenges regarding write-in candidates from being raised, it does clarify the law and constitutes a move forward in the direction the courts have been taking for over the last 50 years. REPRESENTATIVE LYNN asked whether just providing the name of a write-in candidate but not also filling in the oval on the ballot would be sufficient to determine voter intent. SENATOR THOMAS indicated that the Division of Elections could better address that question. 1:55:41 PM GRIER HOPKINS, Staff, Senator Joe Thomas, Alaska State Legislature, on behalf of Senator Thomas, one of SB 31's joint prime sponsors, explained that Section 1 - which would add a new subsection (d)(1)-(5) to AS 15.15.360 - addresses the counting of write-in votes and [subsequent] determinations by the division director regarding voter intent. Specifically, proposed new subsection (d)'s paragraphs (1)-(4) contain [along with some clarifying editorial changes] the provisions of existing AS 15.15.360(a)(9)-(12), which address write-in candidates/votes and which would be repealed via SB 31's Section 3, thereby leaving the remaining provisions of AS 15.15.360(a) - those being paragraphs (1)-(8) - to address the marking/counting of standard ballots. Section 2 of SB 31 provides for a proposed new AS 15.15.365, which would statutorily address the issue of counting write-in votes in a general election; the language in proposed AS 15.15.365(a)-(e) mirrors the regulatory language in 6 AAC 25.085. MR. HOPKINS explained that Section 2's proposed AS 15.15.365(a) addresses the trigger for counting write-in ballots, adding his understanding that the Division of Elections doesn't count write-in ballots unless there is a legitimate [likelihood] that those ballots could change the outcome of the election. [Under both existing and proposed AS 15.15.360,] the oval must be filled in [as specified in AS 15.15.360(a)(1) regardless of whether a person is voting for a write-in candidate or a candidate whose name is already on the ballot; this is] because it's the filled in oval which registers with the voting machine as a cast vote. He then offered his understanding that under proposed AS 15.15.365(a)(1)-(2), in order for any write-in votes to be counted, there must be more total votes cast for all write-in candidates than for any other candidate, or the difference between the total write-in votes cast and the number of votes cast for the leading candidate must be less than .5 percent. He mentioned that the remainder of Section 2, proposed AS 15.15.365(b)-(e), addresses the time and place for counting write-in ballots. REPRESENTATIVE GRUENBERG [although HCS CSSB 31(STA) was already properly before the committee] moved to adopt HCS CSSB 31(STA) as the working document. REPRESENTATIVE HOLMES objected for the purpose of discussion. [Although the objection was never removed, the committee treated HCS CSSB 31(STA) as having been adopted as the working document.] 2:01:16 PM MR. HOPKINS, in response to a question, indicated that due to a change made in the bill's prior committee of referral, proposed AS 15.15.365(c) and (e) together now stipulate, respectively, that if the requirements of subsection (a) have been met, the director of the Division of Elections shall establish the date for counting the write-in votes, and the director - or his/her designee - shall count all write-in ballots [under the rules outlined in proposed AS 15.15.360(d)]; and that those write-in ballots shall be counted - by the director or his/her designee - in a public place at the location where write-in ballots are sent to be counted after an election. This change is intended to provide for a more secure ballot-transfer process; proposed AS 15.15.365(e) would eliminate the need for those ballots to be transferred again, thereby mitigating the risk of damage, loss, or tampering. Currently, after all the voting precincts across the state tally their results, all of the ballots are sealed and shipped to the director's office in Juneau. REPRESENTATIVE GRUENBERG offered his understanding that Section 2's proposed AS 15.15.365 could apply to any "write-in election." MR. HOPKINS concurred. REPRESENTATIVE GRUENBERG questioned whether, in situations involving a local election, the language of proposed AS 15.15.365(e) would provide the division with the flexibility to ship the write-in ballots back to that local precinct for counting. MR. HOPKINS indicated that such could occur after the timeframe currently provided for absentee ballots to arrive at the director's office in Juneau. In response to a question, he offered his understanding that ballots arriving after the deadline are only counted if a recount is authorized. In response to further questions and comments, he concurred that [under both existing and proposed AS 15.15.360,] writing in the name of a candidate whose name is already printed on the ballot would not invalidate that write-in vote unless it is determined that the ballot was so marked for the purpose of identifying it later on; and reiterated that [under both existing and proposed AS 15.15.360,] the oval must be filled in as specified in AS 15.15.360(a)(1) [regardless of whether a person is voting for a write-in candidate or a candidate whose name is already on the ballot, because it's the filled in oval which registers with the voting machine as a cast vote,] and that before any write-in votes are counted, the criteria outlined in proposed AS 15.15.365(a)(1)-(2) must be met. He added that in Miller, the court upheld the statute requiring the oval to be filled in. 2:14:36 PM MR. HOPKINS mentioned that page 21 of the aforementioned 2010 General Election Review contains a specific reference to SB 31, and that when crafting the latest version of the bill, Senator Thomas worked closely with the Division of Elections. In response to a question, he concurred that SB 31 would codify the court's ruling in Miller regarding voter intent; relayed that all the courts which got involved in that case are urging that the existing statutes pertaining to write-in votes be clarified; and mentioned that members' packets include a handout containing quotes from those various courts. In response to a question regarding how voter intent would be ascertained by the director under proposed AS 15.15.360(d)(5), he offered his understanding of the process used by the Division of Elections when the write- in votes for Alaska's 2010 U.S. Senate race were counted, and indicated that ultimately, if a race's write-in ballot results are challenged, it would be the court that would determine the correctness of the director's decisions regarding voter intent. 2:23:26 PM GAIL FENUMIAI, Director, Central Office, Division of Elections, Office of the Lieutenant Governor, in response to further questions, provided more details regarding the process used by the division when it counted the write-in ballots for Alaska's 2010 U.S. Senate race. MR. HOPKINS reiterated that in Miller, the challenge raised was whether the language of [existing AS 15.15.360(a)(11)] means that the name of a write-in candidate has to be written exactly as it appears on the candidate's declaration of candidacy; the court ruled that it did not, surmising that if the legislature had intended differently, it would not have used the word, "appears" in [existing paragraph (11)]. Senate Bill 31 is intended to rectify this purported ambiguity in existing statute, but won't preclude someone from challenging the results of a write-in election. He mentioned that no state requires the exact spelling of a write-in candidate's name, and ventured that to do so, even in part, would raise a number of implementation issues. MS. FENUMIAI, in response to comments and questions, said that the law is very clear that the oval must be filled in, and that the court has agreed with the division's interpretation of that law. MR. HOPKINS mentioned that AS 15.15.360(a)(1) says: (1) A voter may mark a ballot only by filling in, making "X" marks, diagonal, horizontal, or vertical marks, solid marks, stars, circles, asterisks, checks, or plus signs that are clearly spaced in the oval opposite the name of the candidate, proposition, or question that the voter desires to designate. 2:35:16 PM REPRESENTATIVE THOMPSON moved to report HCS CSSB 31(STA) out of committee with individual recommendations and the accompanying fiscal notes. There being no objection, HCS CSSB 31(STA) was reported from the House Judiciary Standing Committee.