SB 80-INITIATIVE SEVERABILITY    4:21:17 PM CO-CHAIR KREISS-TOMKINS announced that the final order of business would be SENATE BILL NO. 80 am, "An Act relating to proposing and enacting laws by initiative; and prohibiting the state and its agencies and corporations from spending funds to influence the outcome of certain ballot propositions and questions." 4:21:47 PM SENATOR JOSH REVAK, Alaska State Legislature, presented SB 80 by paraphrasing from his written statement, which read: • Good Afternoon, Mr. Chair and members of the House State Affairs Committee, thank you for hearing SB 80. For the record, Sen. Josh Revak, District M in South Anchorage. • SB 80 seeks to protect the integrity of the ballot initiative process by ensuring ballot initiative language that appears before voters at the ballot box is the same as the language circulated during the signature-gathering phase and to restore the legislaturs important role in the initiative process. • Alaska's constitution details a very important right of our residents - the right to enact legislation through the voter initiative process. The legislature also has the right to enact legislation substantially the same as the proposed initiative thus removing it from the ballot. • Per our constitution, some issues are off-limits for ballot initiatives and initiatives can only cover one subject. But while a cursory legal review of language occurs before the Lieutenant Governor's certification, it has sometimes been the case that further review finds constitutional concerns with proposed language. In those cases, a party can file a lawsuit to force the issue through the court system. This can happen simultaneous to the circulation of signature booklets. • Under current law, if a court determines that language in a proposed initiative is unconstitutional and/or severed, an amended version of the language can appear before voters. This results in voters seeing a different initiative than the one they supported with their signature. Furthermore, if the courts revise/sever the language after the legislative review process, they deny the legislature its right to review the initiative as revised. The net effect of a courts severance is that an initiative can move forward to the voters that is substantially different than the initial version reviewed by the legislature. • SB 80 restores a "check" in the checks and balances the constitutional framers envisioned for the initiative process. Voters should be assured that language on the ballot has not changed from the language in the petition booklets supported with voter signatures and further, it restores the legislature's right to review and enact substantially similar legislation to stop an initiative from moving forward. • SB 80, amended on the Senate floor, affirms that a state entity may not be used to influence an election concerning an initiative, referendum, constitutional amendment, constitutional convention, or recall, unless the money was specifically appropriated for that purpose. However, exceptions apply to usual and customary legislative activity. • Mr. Chair, again thank you for the opportunity to present SB 80 and I would appreciate the committees support. 4:25:43 PM CO-CHAIR FIELDS asked for the number of initiatives in the state's history that have been severed versus the number that have not. 4:26:02 PM KIM SKIPPER, Staff, Senator Josh Revak, Alaska State Legislature, indicated that there have been two initiatives severed. CO-CHAIR FIELDS asked Ms. Skipper to identify the two initiatives and describe the differences in language. MS. SKIPPER stated that the most recent initiative was Ballot Measure 1 [the Salmon Habitat Protections and Permits Initiative, 2018]. She offered to provide the committee with information on any other severed initiatives. CO-CHAIR FIELDS asked for the substantive difference regarding Ballot Measure 1. MS. SKIPPER offered to provide that information. CO-CHAIR KREISS-TOMKINS asked Ms. Skipper to identify the second initiative that was severed. MS. SKIPPER agreed to provide that information. CO-CHAIR FIELDS asked, "Was the main policy debate ... around this issue - of whether we can have non-severability of initiatives - with severability of legislative bills, and whether that's a constitutional problem?" MS. SKIPPER answered that there are issues surrounding the potential unconstitutionality of SB 80; however, the proposed legislation also addresses that the constitution provides the legislature the right to review [the initiative] and provides the public the right to sign a petition based on ballot language - not of a concept but of an actual bill. She maintained that when a court severs that initiative, the public is faced with something different than what they signed. She said that there is a pending advisory opinion on the constitutionality of [SB 80] based on elimination of the severability clause but added that there is a vetting process in the legislature that does not occur with the public. 4:29:09 PM CO-CHAIR KREISS-TOMKINS asked for the chronology of events surrounding Ballot Measure 1 and stated his understanding that it consisted of: the initiative qualifying for the ballot; litigation; the Alaska Supreme Court ruling that some provisions of the initiative were unconstitutional; and the court amending the substance of the initiative. He stated that if a component of a bill is found unconstitutional, it is severed and eliminated as opposed to changed. He asked for comment on that distinction, on the court's role, and what severability means in the context of initiatives. SENATOR REVAK mentioned that a legal opinion may be warranted; however, supporters of the bill believe that what happened with the initiative for Ballot Measure 1 "opened the door for a bait- and-switch" type of policy surrounding initiatives. He offered that putting enticing language in a ballot initiative - maybe even unconstitutional language - to get the public to sign it, knowing that it would be struck down [by the court] simultaneously while the legislature is reviewing it, would a) take away from the legislature's ability to review the final language on a ballot initiative, and b) result in substantially different language [than signed on to in the initiative process]. He maintained that the concern is that people will use [the initiative process] as a tool against the legislature and the voters, and the proposed legislation attempts to address that concern. CO-CHAIR KREISS-TOMKINS asked for more information on the distinction between severing or eliminating a provision of an initiative versus modifying through the court review process. REPRESENTATIVE HOPKINS referred to page 2, line 5, of SB 80, which read, "An initiative petition may not contain a severability clause." He asked whether currently a ballot initiative has a severability clause and how the clause reads. MS. SKIPPER responded that the severability clause tries to mimic what the legislature allows in its [bill-making] process; if a bill passes and the court deems part of the bill unconstitutional, then the court can strip that part of the bill and leave the remainder of the bill to become law. She said that the ballot initiative process allows for that same process. The concern is that when the court severs [an initiative] so that it changes dramatically from what the public saw at the onset of the petition process, the change is on the ballot and the legislature cannot rereview the initiative, because the legislature's review process is over and the court has made the change prior to the election cycle. CO-CHAIR KREISS-TOMKINS commented that from his experience with legislative review of initiatives, the substantial similarity between legislation passed by the legislature that might preempt a ballot initiative is extremely liberally construed. REPRESENTATIVE VANCE asked for the number of states that allow for a citizens' initiative like Alaska's. SENATOR REVAK offered to provide that information to the committee. REPRESENTATIVE STORY acknowledged that the citizens' initiative is important to Alaskans. She expressed her belief that citizens are adequately informed of changes to the initiatives. She asked whether the thinking behind the proposed legislation is that the ballot measure would be so different from what is on the petition that citizens would not be informed about the changes. SENATOR REVAK answered yes. He maintained that in recent history, the ballot measure was substantially different. He stated that there are several issues involved - legislative review and a bait-and-switch policy in which the public does not know the substantial change in the initiative. He offered his hope that through SB 80, people who draft ballot initiatives would be more vigilant regarding the initiative language; it's good for the public, for the legislature, and for the civic process. 4:35:58 PM CO-CHAIR KREISS-TOMKINS asked for information on which of the states allowing a constitutional ballot initiative process prohibit severability clauses versus allow them. CO-CHAIR FIELDS asked whether any of the states among those identified have analogous language saying that every initiative appearing on the ballot that is altered by the court must be substantially like what voters originally signed. He asked whether in the Senate there was discussion about "severability" versus "substantially similar." MS. SKIPPER replied that issue did not come up in the Senate. The discussions in the Senate revolved around the legislative review process, restoring the rights of the legislature, bringing integrity back to the process, and making sure the public sees the ballot initiative as originally intended. [SB 80 was held over.]