HB 414-U.S.SENATE VACANCY/DEF OF POLITICAL PARTY  MR. HEATH HILYARD, staff to Representative Lesil McGuire, informed members that version W was before the committee. He explained that the definition of "political party" was reinserted in version W, which was present in the original version of the bill. CHAIR SEEKINS asked Mr. Hilyard if he wanted to add any information to his last presentation on the bill. MR. HILYARD said the question of why the language regarding political parties was included has been discussed, particularly by the House State Affairs Committee. He stated, "Our main concern was to address some of the concerns brought up, and the court order and the litigation from last fall. I believe that does that, and that's exactly why we included the language originally." SENATOR FRENCH noted one CS contained intent language regarding the legislature's desire to not tamper with this law for the next two years and asked what happened to that language. MR. HILYARD said he cannot say why that language was removed from version W. SENATOR FRENCH said his concern goes back to the minimum wage issue a few years ago. The voters adopted a ballot proposition for a minimum wage increase with inflation proofing. Then, the legislature passed a law with the same provisions and, before inflation proofing ever took effect, the legislature voted to strip out the inflation proofing provision, thereby negating the will of the people. He again asked what happened to that intent language that would have expressed the legislature's intent to not tamper with the statute for the next few years. SENATOR OGAN commented that the will of the people was expressed when they approved the Constitution, which allows the legislature to amend an initiative at any time. He said that constitutional provision recognizes the fact that initiative promoters might have certain agendas and that they do not have the ability to have their wordsmithing scrutinized by legislative drafters, resulting in unintended consequences. SENATOR THERRIAULT pointed out the minimum wage initiative had two sections: raising the minimum wage and inflation proofing. Although the people approved that initiative, he sides with Senator Ogan in that the legislature has the constitutional authority to make adjustments. He then asked Mr. Hilyard why the definition of "political party" was originally included in the bill. MR. HILYARD repeated that the concern was to address some of the points brought up in the court order last fall. SENATOR THERRIAULT asked if the court made a finding based on the merits of the case and issued a temporary order granting the injunction. MR. HILYARD said that is his understanding. MS. VANESSA TONDINI, staff to Representative McGuire, told members the second part of the bill addresses litigation brought by the Green Party against the Division of Elections. That litigation grew out of the Green Party's dissatisfaction with the interplay between the results of the 2002 gubernatorial election and the definition of "political party" in the Alaska Elections Act. That definition currently requires a party to nominate a candidate for governor who manages at least three percent of the popular vote in a gubernatorial election. Alternatively, a party can register voters under its banner if the number equals three percent of the total number of votes cast for governor in the immediately preceding general election. MS. TONDINI explained that Diane Benson, the Green Party candidate in 2002, garnered less than the three percent needed to maintain Green Party status. In the lawsuit, the Green Party asked the court to enjoin enforcement of the law for the period through the 2004 election so it could continue to participate in politics for the benefit of being a full political party. Judge Reese seceded to the Green Party's request and granted a preliminary injunction on November 3, 2003. Judge Reese noted in his court order that the Green Party had been successful in winning over six percent of the votes in races for federal elections, namely for U.S senator and U.S. representative. He determined that the Green Party would face irreparable harm if denied party status. Therefore, HB 414 directly responds to the court order by expanding the types of statewide races that the Division of Elections can review to ascertain whether a party enjoys enough popular support to merit official status. The House Judiciary Committee felt it was its place to fix the definition to undo the gridlock caused by the injunction. SENATOR THERRIAULT pointed out the injunction has three parts: it was granted until the general election in 2004 and it says the legislature can correct the problem statutorily or it can be corrected by further order of the court. There is some uncertainty because the court could come back and modify the injunction. Therefore Representative McGuire chose the option of fixing the problem with a statutory change. MS. TONDINI said that is correct and that Representative McGuire felt fixing the problem was within the legislature's purview and was the better choice. SENATOR THERRIAULT asked which races received six percent of the Green Party vote. MS. TONDINI did not have the names of the individuals in the U.S. senate and representative races at that time. SENATOR ELLIS asked if the sponsor asked that the intent language be omitted. CHAIR SEEKINS said it is his personal philosophy that the legislature should do nothing to restrict a future legislature from considering any question it wants to. In addition, he reminded members that intent language is not binding. SENATOR ELLIS asked if it was Chair Seekins' decision to omit the intent language in the CS. CHAIR SEEKINS said it was his intent that the committee reconsider the original version of the bill. He said he would be glad to address a motion to include that language. MS. TONDINI indicated the intent language was added to clarify the sponsor's intent to not circumvent the binding effect that the initiative process would have. Although one legislature cannot bind the next, Representative McGuire wanted to make it clear that she did not intend to make any changes to this law shortly after it passed. CHAIR SEEKINS said he appreciates her intent but he did not want to say that someone else could not do that. TAPE 04-45, SIDE A  SENATOR THERRIAULT asked if the sponsor intends that the definition of political party apply retroactively to the current case. MS. TONDINI said it would apply prospectively. MS. SARA FELIX, Assistant Attorney General, Department of Law (DOL), offered to answer questions. SENATOR THERRIAULT commented that the judge has granted an injunction until the November election unless the legislature changes the statute or the court takes further action. He asked Ms. Felix if the court will consider a new statute enacted by the legislature. MS. FELIX said it is her understanding, from the terms of the court order, that the court would consider it. She would certainly submit the bill in the litigation, which is ongoing. SENATOR THERRIAULT asked if the legislature wants Section 7 to only apply after the November election, it could do so by using a delayed effective date. MS. FELIX said that could also be accomplished using transitional language. She said the general rule is that a law that is enacted subsequent to an event applies prospectively, not retroactively. SENATOR THERRIAULT asked Ms. Felix if there was any discussion [during the litigation] about whether the races that garnered six percent of the Green Party vote were contested races. MS. FELIX told members the candidates in the November 2002 election for U.S. Senate were Jim Dore for the Alaska Independence Party, Frank Vandersaar for the Democratic Party, Ted Stevens for the Republican Party, Jim Sykes for the Green Party, and Leonard Karpinski for the Libertarian Party. In that race, Mr. Sykes received 7.24 percent of the vote. The candidates for U.S. Representative in that election were Don Young for the Republican Party, Russell DeForest (ph) for the Green Party, Rob Cliff for the Green Party, and Clifford Green for the Democratic Party. In the briefing on the motion for preliminary injunction, the issue of whether or not those two races were contested was not discussed. The focus of the briefing was the reasonableness of the statute, which ties the modicum of the political support requirement to the gubernatorial race rather than the other races that the Green Party was advocating for. The state argued that the legislature's choice of the gubernatorial race was reasonable. SENATOR THERRIAULT asked when that litigation will be completed. MS. FELIX said the trial is set to begin November 22, 2004. By court rule, judges have six months in which to issue an order. She noted that Judge Reese has retired so a new judge will be assigned to the case. SENATOR OGAN asked how the court determines which judge gets assigned to a case. SENATOR FRENCH said the presiding judge makes the decision. CHAIR SEEKINS questioned the Green Party's purpose in filing the lawsuit. MS. FELIX explained that at the 2002 general election, the Green Party candidate did not receive the required three percent of the gubernatorial vote so it lost political party status. The party wanted to retain that status, which allows participation in the primary election and offers certain fundraising advantages under the APOC statutes. Therefore, the Green Party sued the state contesting the lost party status determination. CHAIR SEEKINS said in effect, the Green Party is saying that this one race should not affect its ability to be a recognized political party. MS. FELIX thought the Green Party's position is that it has been a legitimate, recognized political party for the last 12 years and had one bad gubernatorial race so it should not be denied political party status. Treating the Green Party differently from other similarly situated parties would be a denial of equal protection of the law. CHAIR SEEKINS asked if the judge is saying that is a legitimate question that needs to be answered and it would be helpful for the legislature to clarify its position. MS. FELIX felt that is a very fair characterization. CHAIR SEEKINS asked if this legislation, if enacted, will help to clarify the issue as to whether the Green Party should be a recognized political party for the next election and in elections thereafter. MS. FELIX said that is correct. SENATOR THERRIAULT asked Ms. Felix to describe how Section 7 would work. MS. FELIX said it appears that Section 7(A) would require nominating a candidate for governor who received three percent of the vote. Section 7(B) says if the office of governor is not on the ballot, the office of U.S. senator would be used to determine whether that nomination received three percent of the vote at the last election. Section 7(C) says if neither the office of governor nor the office of U.S. senator is on the ballot, the office of U.S. representative would be used. SENATOR THERRIAULT asked if the legislation would essentially create a specific chain of which election should be looked to. MS. FELIX agreed it would create a hierarchy of which race to use. SENATOR FRENCH did not believe this legislation would fix the problem that occurred in 2002 since the gubernatorial race is the first one that would be considered. He noted the Green Party could have won the U.S. senate seat that year but still not be a recognized political party. MS. FELIX said it leaves the office of governor as the primary touchstone. She said it does not appear to fully address the concerns set out in the order for injunctive relief. SENATOR FRENCH asked if the party candidate gets two percent in the governor's race and wins the U.S. senate race, the party will not be recognized as a political party if both of those occur on the same ballot under the definition in the bill. MS. FELIX said that is how she sees it. SENATOR THERRIAULT suggested that a person who won a statewide race would have more than three percent of the vote. CHAIR SEEKINS asked if the judge did not make a decision based on the merits at this time; he only granted a preliminary injunction, which grants the Green Party continued recognition until the earlier of the general election in 2004, a statutory change, or the court takes further action. MS. FELIX said that is a correct summation. She said the merits of the case remain to be litigated and it is possible that the current statute could be upheld. CHAIR SEEKINS asked if the intent is that HB 414 be prospective so that the new rules apply to the general election this fall so that the legislature does not foul up the Green Party status in 2004. MS. FELIX said if Chair Seekins' concern is that litigation will not be resolved until after the general election and this bill might affect the general election and he does not want it to affect the Green Party's current status as a recognized political party, the committee could put transitional language in the bill. She expressed concern about relying on the assumption that passage of this bill would not impact the litigation. She said if that legislative intent is put on the record, she would not go to court and say the legislature has enacted this bill and it applies to the lawsuit. SENATOR THERRIAULT felt the legislature should speak to that directly. He then moved a conceptual amendment [Amendment 2] that would place a delayed effective date on Section 7 until after the November 2004 general election. CHAIR SEEKINS announced that without objection, Amendment 2 was adopted. SENATOR THERRIAULT asked if the court looked at the competitive nature of the races. MS. FELIX said the court did not. SENATOR THERRIAULT recalled the dynamics of the races that Ms. Felix spoke to earlier were that the candidates fielded in those races by the Democratic Party did not garner any kind of excitement. He questioned whether those races can be viewed as a sudden groundswell of support for the Green Party and what it stands for, rather than a mere lack of options. He said the intent is to measure recognition of political parties via the depth of support by the general voters. He repeated that he does not know that two races, just due to lack of competition, are a true indication of support. CHAIR SEEKINS said the U.S. senate race in 2004 will certainly be a competitive race, as will Senator Ted Stevens' seat when he retires. He said the contested races determine where the real support for the parties is and he believes this next race will show that. CHAIR SEEKINS then noted with no further testimony or discussion, public testimony was closed. SENATOR THERRIAULT moved SCS CSHB 414(JUD) from committee with individual recommendations and its attached zero fiscal notes. SENATOR ELLIS objected. SCS CSHB 414(JUD) moved from committee with Senators Ogan, Therriault and Seekins in favor, and Senators Ellis and French opposed.