SJR 40-CONST AM:ELECTION & TERMS OF GOV & LT GOV CHAIRMAN KELLY called the Senate Rules Committee meeting back to order at 3:16 p.m. and announced that Senators Pearce, Miller, Leman and Ellis were present. He informed committee members that a new proposed committee substitute (Version V) was prepared for SJR 40. The Senate Rules Committee previously adopted a committee substitute (1-LS1579/S); the new version is 1-LS1579/V. SENATOR ELLIS asked for an explanation of the changes to Version V. CHAIRMAN KELLY explained that Version V moves the start date for the governor's term of office to the third Monday in February. Version S had the term of office beginning on the third Tuesday in January. Currently, under the Constitution, the governor's term begins the first Monday in December. The four year term will remain, however it will now begin on the third Monday in February instead of the first Monday in December. That change will allow 60 days for overseas absentee ballots to be counted and to certify a runoff election. CHAIRMAN KELLY asked a representative from the Division of Elections whether the date of February 18 will allow the division to conduct and certify a general election and a runoff election, if necessary, and seat a governor. GAIL FENUMIAI, Elections Specialist at the Division of Elections, noted the general election will take place on November 5, 2002 with a tentative certification date of November 29, 2002. Barring any recounts or litigation, a runoff election could take place and certification could be completed prior to the third Monday in February. CHAIRMAN KELLY corrected himself and pointed out the third Monday in February of 2003 will be February 17. MS. FENUMIAI noted if the general election occurs on November 5, the division could certify a runoff election around February 13 or 14. SENATOR LEMAN moved to adopt Version V as the working document of the committee. There being no objection, the motion carried. SENATOR LEMAN asked why a specific date is necessary to seat the governor when legislative terms are identified as the start date of the legislature or as prescribed by law. He thought if the same provision held true for the governor, the date could be established by law, unless a runoff election is necessary, in which case another date could apply. CHAIRMAN KELLY asked the legal drafter to respond to whether the resolution could say, "the third Monday in February or otherwise prescribed by law." MS. KATHRYN KURTZ, Division of Legal Services, answered that the phrase, "the third Monday in February or otherwise prescribed by law," would provide room in the law to prescribe a later date if a runoff election was required. CHAIRMAN KELLY asked if either an earlier or later date could be prescribed. MS. KURTZ said that changing the Constitution to include the phrase "or otherwise as prescribed by law" would allow that latitude. CHAIRMAN KELLY stated that the Constitution currently says the legislature is supposed to convene the fourth Monday of every January unless otherwise prescribed by law and, by law, that date has been changed to the second Monday in January, or the third during an election year. In addition, by law, the legislature can convene earlier or later. Chairman Kelly said he wants to provide the same flexibility with the governor's race because, under existing law, it appears the third Monday in February is the closest date that can be selected that will follow all of the laws in place. MS. FENUMIAI said that is correct. SENATOR LEMAN moved an amendment (Amendment 1) to Version V that changes the term of office of the governor to four years, beginning at noon on the third Monday in February, following the gubernatorial election, unless otherwise prescribed by law, and ending at noon on the third Monday in February four years later. CHAIRMAN KELLY suggested adding the phrase "unless otherwise prescribed by law" after "four years later." MS. KURTZ agreed that "four years later, unless otherwise prescribed by law" is the correct language. CHAIRMAN KELLY noted there is no direct mention of a runoff election if a majority vote is not received. He asked Ms. Kurtz how that specific language could be included. MS. KURTZ said specific language about a runoff election could be added into Article 5, Section 3, which is in Section 4 of Version V, by inserting a sentence that says, "If no candidate for the offices of governor and lieutenant governor receives a majority of votes cast or 50 percent plus 1 of the votes cast at a general election, then a runoff election will be held as prescribed by law." CHAIRMAN KELLY referred to page 1, Section 3, and asked if a general election should be left in that section. MS. KURTZ replied if "a general election" is left in, the gubernatorial candidate would have to be chosen at the general election so it would create a conflict. CHAIRMAN KELLY noted that congressional races must be held on the second Tuesday of November by federal law. SENATOR ELLIS asked if that is why they were removed from the bill. CHAIRMAN KELLY said that is correct. SENATOR ELLIS asked why Version S eliminated the requirement that the governor be elected at a general election by removing the word "general." CHAIRMAN KELLY answered that the idea was that if no candidate receives 50 percent of the vote at the general election, a runoff election will be held. SENATOR ELLIS asked if removing the word "general" is necessary in that case because it raises the prospect that a governor can be elected at anything other than a general election. MS. KURTZ replied, "I think the differences between a runoff of that general election and a general election - I would take the term 'general election' to mean the general election. There is one, it happens on one date, and the runoff election is a separate election that follows up on the general election. That would be the reason to take out the word 'general'." CHAIRMAN KELLY suggested that the committee take a second look at that issue because the intention is that candidates for governor will be on the general election ballot and if one candidate receives 50 percent of the vote plus one, that candidate is elected. He suggested retaining the word "general" and working around it and adding specific language explaining that a runoff election will be held if a candidate does not get at least 50 percent of the vote plus one at the general election. He also suggested adding the words "of the top two vote getters." Chairman Kelly asked how that phrase is used in existing statute. MS. FENUMIAI replied that phrase does not appear in existing statute. The statute says the candidate with the most votes is declared the winner. She noted when other states hold runoffs for primary elections, they talk about the top two vote getters. CHAIRMAN KELLY thought that phrase has to be included. SENATOR LEMAN remarked that he understands the purpose of clarifying this procedure in the Constitution, but he is not sure that phrase is necessary because Section 4 says methods of voting shall be prescribed by law. He noted the law must be consistent with the Constitution and the law will establish the methodology. CHAIRMAN KELLY said that is true, however it is entirely possible that someone will not prescribe that by law before the next election, at which time anyone taking this to court will have to rely on the constitutional amendment. He thought if it is not prescribed by law right now in this amendment, people might be confused or the next legislature might change it to the top three candidates, for example. He said this legislature intends that this apply to two candidates, which is why one must receive 50 percent plus one vote. SENATOR ELLIS said it is hard to say as this bill breaks new ground in the nation. SENATOR MILLER pointed out that the State of Louisiana weeded out all candidates in the primary to the top two for the general election for a number of years. The general election could consist of the top two vote getters which could have been two Democrats. SENATOR ELLIS asked in what state the Senate decides who wins. SENATOR MILLER replied that is the State of Mississippi. CHAIRMAN KELLY asked Senator Robin Taylor if he agrees that the bill should specifically say the top two candidates will advance to the runoff election. SENATOR TAYLOR replied, "You may need something like that. When it comes to the question of a general and runoff election, there is a possibility you can have a governor elected by a special election also. You shouldn't discount that. That's why I think that perhaps we took out the word 'general'." CHAIRMAN KELLY asked how a governor could be elected in a special election. SENATOR TAYLOR answered that if an impeachment occurred early enough in the term a special election could be held. SENATOR LEMAN asked if the lieutenant governor would serve in that circumstance. SENATOR TAYLOR said there are provisions for a special election. MS. FENUMIAI confirmed that those provisions do exist but she was not prepared to speak to them at this time. She referred to AS 15.40 and noted a special election could occur for the offices of U.S. senator or the governor within 30 days of the date of vacancy. She pointed out that provision has special requirements. CHAIRMAN KELLY asked that the committee adopt a conceptual amendment pertaining to the top two vote getters and that Ms. Kurtz work on the correct language. SENATOR ELLIS asked for clarification of the conceptual amendment. CHAIRMAN KELLY explained that the proposed amendment would pertain to the top two candidates, resolve the general election concerns, and make certain that it allows for a special election if needed. SENATOR PEARCE asked if it would pertain to the top two vote getters. CHAIRMAN KELLY said yes, regardless of political parties. He noted it is possible that both candidates could be Democrats or Republicans. SENATOR PEARCE asked for clarification and whether he was speaking to the primary election. CHAIRMAN KELLY said the top two vote getters, regardless of political parties, will run in the general election. SENATOR PEARCE said there is no way that two people from the same party could get on the ballot for the general election. CHAIRMAN KELLY said correct. SENATOR LEMAN moved to adopt the conceptual amendment as described by Chairman Kelly. There being no objection, the motion carried. CHAIRMAN KELLY announced that as soon as the committee substitute is prepared, it will be distributed to committee members. SENATOR LEMAN moved to calendar CSSJR 40(RLS). SENATOR ELLIS objected. The motion carried with Senators Leman, Miller, Pearce, and Kelly voting "yea," and Senator Ellis voting "nay."