SB 31-COUNTING OF WRITE-IN VOTES  1:49:54 PM CHAIR FRENCH announced the consideration of SB 31 and asked for a motion to adopt the work draft committee substitute (CS). SENATOR WIELECHOWSKI moved to adopt CSSB 31, labeled 27- LS0350\E, as the working document. There being no objection, version E was before the committee. 1:50:26 PM SENATOR THOMAS, sponsor of SB 31, said the bill looks to clarify the statutes using language recommended in the Miller v. Treadwell Alaska Supreme Court decision. It explicitly states that the director of the Division of Elections will use the determination of the voter's intent as the guiding principle when counting and judging the validity of a write-in ballot. SB 31 incorporates the concept that Alaska courts have consistently applied for 50 years favoring voter intent. The goal of SB 31 is twofold. First, it intends to clarify the statutory language to ensure that in future elections as many Alaskans are enfranchised as possible. Second, it intends to tighten statutory language to be inclusive rather than exclusive and to strengthen the public perception of Alaska's democratic process. This bill will protect the fundamental democratic rights of Alaskans who enter the polling booth with diverse backgrounds, abilities, and skills, he stated. 1:52:09 PM GRIER HOPKINS, staff to Senator Thomas, sponsor of SB 31, said this bill follows on the heels of nearly 50 years of court precedent in Alaska finding strongly in favor of voter intent. Each court decision used strong language emphasizing the importance of voter intent and that the statutory language regarding the subject of write-in votes is murky and open to interpretation. SB 31 looks to clarify this by using language recommended in the Miller v. Treadwell Alaska Supreme Court decision. The language is nearly identical to the Federal Uniformed and Overseas Citizens Absentee Voting Act and it explicitly says that the Division of Elections will use the determination of a voter's intent as the guiding principle when interpreting counting and judging the validity of write-in ballots. The intent of SB 31 is twofold. First it is to clarify state statute and ensure that in future election as many Alaskans as possible are enfranchised. This means that a ballot won't be thrown out based on a minor error such as an abbreviation or misspelling as long as the director of the Division of Elections is able to determine the voter's intent. But a write-in like "Lisa M" still will not meet the voter intent determination because it doesn't appear as it did on the declaration of candidacy, which is required under AS 15.15.360(a)(11). The word "appears" came under scrutiny by the courts and the determination was that if the Legislature had intended to require a perfect spelling it would have used more specific terms like "identical," "perfect," or "the same as." According to the courts, the word "appears" is meant to show that the Legislature left some latitude in terms of what would be accepted by the division when judging a ballot. For example, spelling Murkowski with a "c" rather than an "s" would be close enough to the way it appears on the declaration of candidacy, but "Lisa M." would not qualify. The second reason for SB 31 is to tighten statutory language and strengthen the public perception of Alaska's democratic process. Having clear, concise statutory language showing how the votes are determined will help alleviate some of the outcry regarding the counting of write-in ballots and reduce the potential for future litigation. To date, the State of Alaska has spent over $150,000 on this most recent court case. MR. HOPKINS noted the bill packet contains a letter of support from the Alaska Federation of Natives and a sample brochure from the Disability Law Center of Alaska. These organizations represent a substantial number of Alaska voters who will be directly assisted by SB 31. Both support voter enfranchisement with voter intent being paramount. The inclusive rather than exclusive language in SB 31 will protect the fundamental democratic voting rights of Alaskans who enter the polling booth with a variety of backgrounds. 1:55:52 PM CHAIR FRENCH asked if he or Ms. Smith would discuss the differences between the current version E and version I that passed from the State Affairs Committee. 1:56:31 PM CINDY SMITH, staff to Senator French, explained that the previous version raised concerns about combining in the same subsection duties that are specific to election boards and duties that are specific to the director of elections. To address this concern, paragraphs 9-13 were removed from AS 15.15.360(a) and placed in a new subsection (d) in version E. This leaves the original statutory language unchanged. 1:57:46 PM CHAIR FRENCH said he would expect to see the language that is disappearing to be capitalized to signal that it's leaving that part of the statute. He asked if he's missing something. MS. SMITH deferred to the legislative drafter. CHAIR FRENCH asked if the Division of Elections is happy with version E. MS. SMITH said yes; the division and the Department of Law raised this issue and both have reviewed this version. CHAIR FRENCH opened public testimony. 2:00:26 PM MARILYN RUSSELL, President, League of Women Voters of Alaska, stated support for SB 31. This bill ensures that the greatest number of voters will be enfranchised to the greatest extent possible. SB 31 provides more flexibility and respects the voter's intent. 2:01:28 PM JERRY MCCUTCHEON, representing himself, stated that legislators should read the Alaska Constitution Article III, Section 16, and Article IV, Section 1, to confirm that the Alaska Legislature is the all-powerful legislature of the 50 states and that both the executive and judiciary are dependent upon it for power. He cautioned legislators to think carefully before giving away their authority. 2:05:57 PM SARAH FELIX, Attorney IV, Civil Division, Department of Law (DOL) and Gail Fenumiai, Director, Division of Elections, Office of the Lieutenant Governor, introduced themselves and offered to answer questions. Ms. Felix said that they had worked with the drafter and the current version E addresses the concerns that they had with the previous version I. CHAIR FRENCH noted that his staff pointed out that Sec.3. on page 2, line 28, repeals the earlier sections he puzzled over so from that perspective the bill is in good form. 2:07:23 PM SENATOR COGHILL asked for help interpreting the phrase, "the director determines, on the basis of other evidence, that the ballot was so marked for the purpose of identifying the ballot;" in subsection (d)(1) on page 1, lines 6-7. MS. FENUMIAI replied that is existing statute. CHAIR FRENCH asked her to explain how it would work in practice. MS. FENUMIAI explained that what happened during the recent vote count is that on about 20 ballots a voter wrote in the name "Joe Miller" and also voted for "Joe Miller" the candidate whose name was pre-printed on the ballot. The way the phrase would be applied is that Joe Miller would receive one vote on each of those ballots. CHAIR FRENCH observed that the phrase, "that the ballot was so marked for the purpose of identifying the ballot;" is illusive and he'd appreciate further explanation. MS. FELIX replied a voter might write their name on a ballot and other statutes that are not set out in this bill prohibit the division from counting ballots that have an identifying mark. CHAIR FRENCH summarized that if the ballot is marked in a way that it would identify the voter who cast the ballot, it would not be counted. MS. FELIX and Ms. Fenumiai both agreed. SENATOR COGHILL said he appreciates the explanation because he was trying to figure out if, for example, marking outside the oval is voter intent. MS. FELIX asked for further clarification of the question. 2:11:26 PM SENATOR COGHILL said he was thinking that if the marking is outside the oval the ballot would go into the hand-count category and at that point he presumes that the marking would be seen as voter intent. MS. FELIX replied there's another statute that says that the marking has to touch the oval in order to be counted. CHAIR FRENCH clarified that this discussion is about filling in the oval. MS. FELIX agreed and added that the mark could be just a dot within the oval. CHAIR FRENCH remarked that's enough to get started. MS. FELIX said she thought that Senator Coghill was asking about a mark that is entirely outside the oval. SENATOR COGHILL said he understands that if a voter writes in a first name and middle initial the ballot wouldn't be counted. But he was thinking that "other evidence" might be that the voter also filled in an oval next to it and that that could somehow be counted as intent. He added that his overarching concern is voter intent and because this is a new subsection, he believes that every word is worth scrutiny. CHAIR FRENCH questioned what interest is furthered in requiring a voter to fill in the oval after they've clearly expressed intent by properly writing in a write-in candidate's name. MS. FELIX replied the Division of Elections is simply following a statute that requires the voter to fill in the oval. CHAIR FRENCH asked Ms. Fenumiai what alerts the division that ballots have been cast for a write-in candidate, absent a mark in the oval. MS. FENUMIAI replied a ballot that doesn't have a mark in the oval would count as a blank vote; it would not appear in the tally for any candidate or the write-in totals. The difference between "times counted" and "ballots cast" reveals that difference. During the recent U.S. Senate race and subsequent court cases, the division did not count ballots that did not have the oval filled in alongside the name that was written in. The Murkowski campaign challenged those and the court ruled that there must be a mark in the oval because a voter could start to write in the name and then change his/her mind. The process that the division followed was also validated, she added. 2:14:31 PM SENATOR WIELECHOWSKI asked how many voters in the recent election wrote in the name and did not fill in the oval. MS. FENUMIAI estimated that is was about 1,300 or 1,400. CHAIR FRENCH observed that it's an interesting question since it's possible to see voter intent by the accurate spelling of a write-in name, but there is the possibility that a voter changed his/her mind and absent the filled oval it's hard to bring it to the division's attention. He further observed that the terminology "ballots cast" and "times counted" is a bit abstract for people outside the business. MS. FENUMIAI offered to follow up because she didn't recall the exact language, but one signifies the total number of ballots that went through an AccuVote voting machine in a precinct and the other signifies the actual votes that were tallied. The difference between those is the number of blank votes cast. CHAIR FRENCH asked if he were to receive a ballot and insert it in the AccuVote machine without making any sort of selection, if it would be counted as a "ballot cast" but not "times counted." MS. FENUMIAI said yes. 2:16:15 PM SENATOR PASKVAN said he has some concern with subsection (b) on page 2 as it relates to the recent Alaska Supreme Court opinion. The court said it relied on long-standing principles in reaching its decision and it identified those principles, including that the voter's intent shall prevail if it can be reasonably ascertained. Then the court clearly said that common sense and reasonableness is validated and perfectionism as a standard is rejected. This serves to promote participatory democracy. SENATOR PASKVAN cited page 14 of the Miller v. Treadwell Alaska Supreme Court decision as follows: Common sense statutory interpretations by agencies do 29 not require regulations. … The Division's statutory interpretations … were common sense interpretations and were not required to be promulgated in regulations. … A requirement that each such interpretation be preceded by rulemaking would result 31 in complete ossification of the regulatory state. My concern, Senator Paskvan said, is that we stay within the common sense and reasonableness standard and that subsection (b) on page 2, which says, "Write-in votes that do not meet the requirements of this section may not be individually counted under this section." does not eliminate the long-standing principles that we've relied on and that it doesn't eliminate common sense and reasonableness. SENATOR PASKVAN said he wants that on the record so that in the future somebody can't point and say that the Legislature changed the common sense and reasonableness standard so the long- standing principles are out the window. 2:19:07 PM MS. FENUMIAI said subsection (b) on page 2, is referring to the requirements of (a)(1) and (2) just above, that it either has to be the highest number of votes for that race or the second highest within a certain percentage. [New Sec. 15.15.365. Counting of write-in votes in general election.] That sets the standard for when the division would have to individually look at the write-in votes. SENATOR PASKVAN responded he wants it on the record that the intent of the Legislature is to remain with the common sense and reasonableness standard and not to get closer to the perfectionist standard. "I want to make sure that it's clearly understood, when it comes to your discretion or future division directors, that they are firmly in common sense and reasonableness and we don't need to create regulations to run an election," he stated. 2:20:17 PM MS. FELIX suggested the committee ask Mr. Bullard, but to address Senator Paskvan's concern subsection (b) could be amended to say, "Write-in votes that do not meet the requirements of (a) of this section may not be individually counted under this section." CHAIR FRENCH said they'd consult the drafter. 2:20:58 PM SENATOR COGHILL observed that the operative word on [page 2] line 11, is "only" after which it provides the bright line for when those ballots would be counted. There has to be a reason, he said. CHAIR FRENCH referenced lines 10-14 and asked how you get to the point that write-in ballots are counted. MS. FENUMIAI explained that if after election night it's apparent that the total number of aggregate votes for write-ins is more than for any candidate whose name is printed on the ballot, this alerts the division to go through the write-in votes to determine who those votes are for. This was the process that the division followed for the 2010 U.S. Senate race. CHAIR FRENCH said you don't know who the write-in votes are for, but you've been alerted that there are a lot. MS. FENUMIAI said yes; when they're counted by the hand-count precincts or by the AccuVote voting machines and touch-screen machines at the precincts these go into a generic category of write-in votes. 2:22:59 PM CHAIR FRENCH referenced paragraph (3) on page 1, lines 11-14, and recalled that this particular paragraph got a lot of attention. The Miller campaign contended that the phrase, "as it appears on the write-in declaration…" meant that the write-in name had to appear exactly as it appeared on the write-in declaration. He asked if his recollection is correct. MS. FELIX answered yes. CHAIR FRENCH described the sentence as difficult and said that if there had been any though to modifying it, this would be a good time. MS. FELIX responded they moved the "as it appears" language so it makes more sense grammatically, but the real fix is the new paragraph (5) on page 2, lines 6-8. She said that this standard was adopted from the federal write-in ballot and they believe that it combined with the grammatical change to the "as it appears" language will address the concerns that were widely reported in the news and litigated in the Miller v. Treadwell cases. 2:25:02 PM CHAIR FRENCH agreed that the language is better. SENATOR COGHILL referenced page 2, lines 6-8, of version E and said he can understand that the director would disregard misspelling or minor variations in the form of a name, but disregarding an abbreviation raises a flag. He asked for an explanation. MS. FELIX replied this language mirrors federal law for federal write-in ballots and is a standard set out in many other state statutes. She said she can't speak to the provision to disregard abbreviations and isn't sure how that standard would apply. MS. FENUMIAI said she assumes that it would refer to a shortened spelling of a name. CHAIR FRENCH asked if "L. Murkowski" would be considered an abbreviation. SENATOR COGHILL pointed out that that example includes the last name. Stating agreement with Senator Paskvan that the common sense approach would apply to this paragraph, he said he believes that this could be contentious. He expressed an interest in knowing if in other jurisdictions this law had been either defended or defined. CHAIR FRENCH asked Ms. Felix if she's aware of any federal cases on abbreviations. MS. FELIX replied their research focused on cases of misspelling rather than abbreviations, but the example of "L. Murkowski" as an abbreviation is well taken. The first name initial and the last name would be accepted, whereas the division would not accept "Lisa M." and the courts validated that approach, she said. 2:28:33 PM SENATOR WIELECHOWSKI opined that it's not possible to predict all future challenges to write-in cases and his intent as a co- prime sponsor is to clarify that voter intent is premium. "If the voter abbreviates the name or accidentally misspells the name or there's another minor variation in the name, but you can glean the intent of the voter, then that vote should be counted," he stated. SENATOR COGHILL said he agrees with the intent, but he's watching two things. First is that voter responsibility is maintained and second is that defining points are established for the standard. 2:30:16 PM SENATOR PASKVAN asked if it would help to insert on page 2, line 6, following "a write-in candidate" the phrase "as it appears on the write-in declaration,". He continued to say, "We know that the write-in declaration may be different than what the voter is writing in, but we're still following intent." MS. FELIX cautioned that inserting that language might cause confusion. SENATOR PASKVAN asked if the standard would be common sense and reasonableness if the Legislature did nothing. MR. FELIX replied the division would follow the Alaska Supreme Court decision if nothing is done by the Legislature. That decision validated the division's practice, which is to apply a common sense and reasonableness interpretation to write-in ballots to effectuate voter intent. CHAIR FRENCH said this is a good time to thank both Ms. Felix and Ms. Fenumiai for their good work in very difficult circumstances. Describing SB 31 as a housekeeping bill, he emphasized that it doesn't really change anything. Rather, it institutionalizes in statute that chapter in Alaska history so there will perhaps be less drama in future write-in elections. 2:33:05 PM SENATOR MCGUIRE suggested the committee consider how to make it clear that the director has discretion to disregard abbreviations, misspellings, and other minor variations in a candidate's name when "as it appears" occurs throughout the bill. [Senator McGuire referenced the previous version I in her explanation.] 2:36:32 PM CHAIR FRENCH called a point of order. Paragraphs (11) and (12) are contained in the previous version I; those provisions are contained in paragraphs (3) and (4) of the current version E. SENATOR MCGUIRE questioned why paragraphs (3) and (4) refer to one standard for a governor and lieutenant governor election and a different standard for an election for other write-in candidates. MS. FELIX replied her understanding is that paragraph (3) addresses a write-in candidate where one name is written in whereas paragraph (4) addresses a write-in vote for both the governor and lieutenant governor so the voter would have to write in two names. CHAIR FRENCH expressed surprise that a write-in vote for a candidate for governor must contain both the governor's and the lieutenant governor's name. MS. FELIX said that's the case. SENATOR MCGUIRE restated that paragraph (5) would be read into the understanding of "as it appears" or "as they appear." CHAIR FRENCH agreed that paragraph (5) would apply to both single candidates and a pair of candidates in the event of a write-in election for governor and lieutenant governor. MS. FELIX clarified that it's more complicated than she previously indicated. The way version E, paragraph (4) is written, the voter can write in just the last name of the candidate for governor or both the name for governor and lieutenant governor. 2:39:02 PM SENATOR COGHILL asked if it would assume the lieutenant governor's name if the governor's name were written in. MS. FELIX replied that's the way it's written in paragraph (4) on page 2, lines 3-5. CHAIR FRENCH asked if a person can run for governor as a write- in candidate without a lieutenant governor partnership. MS. FELIX said DOL has written an opinion and she would follow up with that information for the committee. SENATOR PASKVAN questioned if it would help to insert the phrase "in the exercise of discretion" between the words "director" and "shall" on page 2, line 6. 2:41:09 PMC CHAIR FRENCH said he'd pose that question to the drafter and announced he would hold SB 31 in committee.