SB 186-VOTER REGISTRATION & PFD APP REGISTRATION  4:09:04 PM CHAIR MEYER announced the consideration of SB 186. He noted that the committee last heard SB 186 on March 8 and there were numerous questions posed by committee members that the Division of Elections has returned to address. 4:10:11 PM JOSIE BAHNKE, Director, Alaska Division of Elections, Office of the Lieutenant Governor, Juneau, Alaska, announced that the division had an amendment to offer for SB 186. CHAIR MEYER noted that there were two amendments for the bill, one from the Division of Elections and another from Senator Coghill. He asked that Senator Coghill move his amendment. 4:11:15 PM SENATOR COGHILL moved Amendment 1, [30-GS2097\A.1]: AMENDMENT 1 OFFERED IN THE SENATE BY SENATOR COGHILL TO: SB 186 Page 1, following line 2: Insert a new bill section to read:  "* Section 1. AS 15.07.050(a) is amended to read: (a) Registration may be made (1) in person before a registration official or through a voter registration agency; (2) by another individual on behalf of the voter if the voter has executed a written general power of attorney or a written special power of attorney authorizing that other individual to register the voter; (3) by mail; (4) by facsimile transmission, scanning, or another method of electronic transmission that the director approves; or (5) by requesting to be registered as a  voter on [COMPLETING] a permanent fund dividend application form under AS 43.23.015." Page 1, line 3: Delete "Section 1" Insert "Sec. 2" Renumber the following bill sections accordingly. Page 1, line 6: Delete "completing" Insert "requesting registration on [COMPLETING]" Delete "with" Insert "form and including" Page 1, line 7: Delete "included" Page 2, line 1: Delete "submit a" Insert "request to be registered on a" Following "application": Insert "form submitted" Page 2, line 4: Delete "declines to" Insert "who requests to be registered does not" Page 2, line 5: Delete "[AN" Insert "[SUBMIT AN" Page 2, line 11, following "notify": Insert "," Page 2, line 12, following "applicant": Insert "who requested registration of the  applicant's registration status" Page 2, lines 13 - 14: Delete "of the applicant's registration status" Page 2, lines 25 - 26: Delete "[IF AN APPLICANT DOES NOT DECLINE TO BE REGISTERED AS A VOTER WITHIN" Insert "If an applicant requests [DOES NOT DECLINE] to be registered as a voter, the [WITHIN" Page 2, line 28: Delete "FORM.] The" Insert "[FORM. THE]" Page 3, following line 1: Insert a new bill section to read:  "* Sec. 6. AS 43.23.015(b) is amended to read: (b) The department shall prescribe and furnish an application form for claiming a permanent fund dividend. The application must include (1) notice of the penalties provided for under AS 43.23.035; (2) a statement of eligibility and a certification of residency; (3) the means for an applicant eligible to vote under AS 15.05, or a person authorized to act on behalf of the applicant, to request that the applicant  be registered as a voter, to furnish information required by AS 15.07.060(a)(1) - (4) and (7) - (9), and to attest [AN ATTESTATION] that the [SUCH] information is true." Renumber the following bill sections accordingly. Page 3, lines 3 - 5: Delete "Except for a permanent fund dividend  application where the applicant declines to provide  the information required under AS 15.07.060(a)(1) -  (4) and (7) - (9), the [THE] " Insert "The" Page 3, line 11, following "who": Insert "requested to be registered to vote and" Page 3, line 19: Delete "secs. 1 - 5" Insert "secs. 1 - 7" Page 3, line 27: Delete "Sections 1 - 5" Insert "Sections 1 - 7" Page 3, line 28: Delete "sec. 8" Insert "sec. 10" 4:11:27 PM CHAIR MEYER objected for discussion purposes. SENATOR COGHILL said he does not entirely agree with an earlier statement by the director that the form would be better off to have someone opt-in. He pointed out that the ballot measure meant to register people to vote during the process of applying for their Permanent Fund dividend (PFD). He noted that page 1 in the initiative gives six reasons for the intent of the initiative and specified that the fourth reason says: In the intent that the permanent fund dividend applicants who wish to register to vote or update their voter registration must submit information to the state the second time using a different form. He commented on the initiative's language as follows: It starts off with the kind of permission and I think that's a big deal to me, but it says it can relieve the voters of a burden by having them complete that on a permanent fund dividend application; I think that's okay and I think that the opt-in/opt-out is two very different ways of looking at it and here's how I see the difference. The way that it was written is you would be automatically registered unless you opted out and the division is asking for. 4:13:53 PM At ease. 4:14:59 PM CHAIR MEYER called the committee back to order. SENATOR COGHILL continued as follows: There were two things that I was going to refer to, the ballot measure itself and the intent. The intent, as people read it, was to relieve qualified voters who apply for a PFD from the burden of having to complete additional paperwork. I think an opt-in still does that and so it's well within the reason of our initiative. I was going to read the constitution to you on that particular issue because we have court cases, I get that, but we also have a constitution and I'm willing to challenge it, it says in Article XI, section 6, about halfway down, it says, "It's not subject to veto and may not be repealed by the Legislature within two years of the effective date, it may be amended at any time;" very explicit language in the constitution, very clear, very plain, it may not be repealed, but it may be amended and I see this as an amendment, you can look at their answer, they see this as a "more than that," it would probably go to court and I have a legal opinion that says we think that it might and we think that it might not, so that's an open question. If you look at the initiative language the opt-out doesn't even come until page 3, and it's at the top of page 3 and subsection 3, "If applicant does not decline to be registered and failure to respond to the notification on subsection (b)." So, for those who see the intent have to dig pretty deep to get to that. 4:17:05 PM He continued as follows: Now, it is true that in the ballot measure language they combine two things in the last sentence, "New voters will receive a notification in the mail to either declare a political affiliation or opt out of the voter registration process." So, it does say that after two pretty good significant paragraphs, but it also says for a small change our state can reap huge benefits and these benefits are three: 1. Make government more efficient and save taxpayer dollars. 2. Voter databases become more accurate and secure. 3. Every eligible voter gets an equal opportunity to have their voice heard in our democracy. That's what people are going to pay attention to, so I think it is well within our reason. So, the courts have several different tests that they are going to go through, I get that. I just wanted to make the case that the burden should, the burden of the willingness to vote, still belongs to the voters. There should not be a presumption on a government that they are registered to vote, there should be a presumption that the individual chooses to vote. The next thing we are going to talk about is sending notices back and forth, all you have to do is say, "I want to register to vote," just like you do on your car registration, it's just a simple, "I want to register to vote;" this way you have to actually get information back and they are trying to change that to say, "I want to opt out," it's an awkward way of doing it. So, to me the burden if you will or the least restrictive means to the individual would be to just opt-in. The least restrictive to the government is you've got to opt-out. I just error on the side or I fall on the side of having the least restrictive means to the individual, that's just me, so that's my argument. 4:19:13 PM CHAIR MEYER asked if he had a legal opinion. SENATOR COGHILL replied that his legal opinion said, "We think it may and we think it may not." He opined that his amendment may not be a problem. SENATOR GIESSEL asked Senator Coghill to explain Amendment 1. SENATOR COGHILL summarized that the amendment changes the opt- out in the bill to an opt-in. He conceded that the amendment might be litigated but emphasized that an individual should have the right to say, "I want to vote," instead of saying, "I'm already registered, I don't want to be registered." He opined that his amendment is a better civics concept where the burden is placed on the voter to register rather than a presumption that goes to the state. 4:24:29 PM LIBBY BAKALAR, Assistant Attorney General, Alaska Department of Law, Juneau, Alaska, addressed Amendment 1 as follows: I have reviewed the memo from legislative counsel and I agree with it overall. The germane sentence in Mr. Bullard's memo is that, "There exists a possibility that requiring an applicant to opt-in could be interpreted by a court as so significant a change to the initiated law that it functions as a repeal of 15PFVR," which is the ballot initiative that was enacted in the 2016 general election. In my view, that outcome is more likely than not because the core intent behind the initiative was to create an automatic voter registration process, the opt-out provisions are sort of the heart of that process and I think that the Supreme Court would more likely than not reach the conclusion that this type of amendment prior to March of 2019 would constitute an unconstitutional repeal of the bill. So, Mr. Bullard has correctly identified the core legal issue. I think that yes, he is saying "maybe, maybe not." I think more "maybe yes" based on what I'm reading and specifically in section 5 of the initiative what I understood the sponsors' intent to be. My understanding from working with the sponsors' post enactment that this is really all about the opt- out process and with respect to Senator Coghill's concerns about where the burden falls on the state versus the government, this is something that the people enacted, the people voted for it. So, we have no choice really but to assume this is what the people want is to have this automatic opt-out process. Now, I think were Senator Coghill's amendment to be adopted I think the amendment is sufficiently deviant from the core of the intent of the initiative that a court, if this were litigated, would more likely than not find this to be affectively a repeal of the measure, that's my legal opinion. 4:26:58 PM SENATOR COGHILL responded to Ms. Bakalar's response We had this conversation and as you can see from the legal opinion a lot of it is what-if language, it's not very emphatic and so I get that and I don't see it going to the heart of it because the heart of it was to make it easier for people to register; in fact, if you go back and listen to all of the advertisements that happened, it was really centered on, it makes it easy for you to register to vote and it should be on the your PFD and then to simply say, "Okay, I want to register on the PFD," seems cleaner, clearer, and less expensive. So, I don't think it goes outside of the realm of either the ballot measure language or the actual legislative intent in the language of the thing. So, it does change some of it, but I think our constitutional duty is very, very clear, that we may amend it at any time. I think this is a proper amendment, it does speak to a court issue, but it doesn't change, I think, the core of the expectation of the initiative. So, that's just my argument, we just fundamentally disagree on this, it's a reasonable argument both ways, but that's where I fall. 4:28:19 PM CHAIR MEYER asked Ms. Bakalar to verify that the initiative cannot be amended for two years. MS. BAKALAR specified as follows: You may amend it at any time, you may not repeal it before two years, but what the case law says is that some amendments are so significant that they "vitiate," is the word that the Supreme Court uses, so vitiate the initiative as to constitute effectively a repeal of the initiative. CHAIR MEYER asked if she believes that the amendment effectively repeals the initiative. MS. BAKALAR replied yes. SENATOR COGHILL responded as follows: I think that it falls right square in the intent and this idea of using a permanent fund dividend as a place to apply for a voter registration, that was the core intent, and this makes it so easy all you have to do is say, "Yes, I want to register to vote." So, that is the difference of opinion we have. 4:29:15 PM CHAIR MEYER agreed with legal counsel and maintained his objection. He asked for a roll call vote. A roll call vote was taken. Senators Wilson, Giessel, Egan, and Coghill voted in favor of Amendment 1 and Chair Meyer voted against it. Therefore, Amendment 1 passed by a 4:1 vote. 4:30:34 PM CHAIR MEYER asked Director Bahnke to proceed with Amendment 2. 4:30:56 PM SENATOR GIESSEL moved Amendment 2. She noted that the amendment does not have a legal drafting number and simply states on the top of the document: AM - to SB 186, 03/07/2018. AMENDMENT 2 OFFERED IN THE SENATE TO: SB 186 Page 2, line 2, following "treat": Delete "an eligible" Insert "a" Page 2, line 3, following "applicant": Insert "under AS 43.23.016" Page 2, line 9: Delete "Upon" Insert "The director shall establish procedures  to allow a permanent fund dividend applicant under AS  43.23.015 to decline voter registration under AS  43.23.016 when applying for a permanent fund dividend  under AS 43.23.015. The procedures may include a form  prescribed by the director. For a permanent fund  dividend applicant that does not decline voter  registration through the permanent fund dividend  application, upon[UPON]"    Page 2, lines 12 - 13: Delete "[NOT ALREADY REGISTERED TO VOTE]" Insert "not already registered to vote" Page 3, line 5, following "(9)": Insert "under the procedures developed by the  director of the division of elections under AS  15.07.070(k)" 4:31:20 PM CHAIR MEYER objected for discussion purposes. MS. BAHNKE explained Amendment 2 as follows: Page 2, line 2: Delete "an eligible;" this is to provide an area of clarity and to streamline the voter registration process with regards to eligibility of a PFD applicant and a registered voter; this was needed because we don't know if one is eligible at the time they come in the door to apply for a PFD, so we saw as a necessary change to clarify that. Page 2, line 3: Following "applicant" we inserted reference to a PFD statute and that was for conformity by adding reference to AS 43.23.016. Page 2, line 9: Delete "Upon" then insert how the opt-out process will work in practice and sets opt-out standards for the director and allows the director to come up with procedures. Page 2, lines 12-13: We added this back in, it was originally deleted, but we added it back in, "not already registered to vote," because the division will want to provide newly registered voters a voter card, so it eliminated the necessity of a mailer but we want to add back in "not already registered to vote" because we still will want to mail them a new voter card. Page 3, line 5: Allows the division director to adopt regulations. 4:33:23 PM SENATOR COGHILL commented as follows: Because of the opt-in/opt-out debate, certainly the lines 8-14 are not going to work in this bill. So, what is necessary in this particular amendment for you to manage, for example, the not already registered vote. So, let's go through this and find out based on the amendment we just did, what is absolutely necessary for you to do to make it smoother or is there anything, based on the amendment, nothing, right at this point? MS. BAKALAR responded as follows: I do think the passage of the previous amendment will probably sort of moot the reason for this piece of the amendment, it's hard for me to visualize without a CS in front of me, I kind of need to look at the CS with both amendments together to see what works and what doesn't work because it's hard for me to picture it all in pieces; but, certainly this part of the amendment that we are looking at that Senator Coghill has identified, lines 8-14 on page 1 of our amendment, certainly is implicated by the amendment that just passed and because it goes to the opt-out procedures if there is no opt-out procedure in the bill anymore then I don't know that this piece is needed because the whole reason for this piece was to facilitate and streamline the opt-out procedure. So, if the amendment is to do away with the opt-out then I don't necessarily, and again, I will qualify my response by saying I would need to see the CS and consult with Legislative Legal and my colleagues, etcetera, but I don't think this piece of the amendment would be necessarily needed anymore because it does go to the whole opt-out concept and if that concept is removed from the bill then I don't think we will likely need that piece. 4:35:28 PM SENATOR COGHILL replied as follows: Based on that, I would like to reject the amendment, but have them come back to things that they think they needed to have for the better operation because it looks like there are pieces in here that may be helpful to them, I just don't know the answer to that. CHAIR MEYER suggested that he hold the bill in committee and order a committee substitute (CS) with the new Amendment 1. He confirmed that Amendment 1 changed the bill significantly. He opined that cleanup was needed for Amendment 2 and noted that the proposed amendment was different than what the division had previously offered. SENATOR GIESSEL asked if she should withdraw her motion to adopt Amendment 2 or to make a motion to table Amendment 2. CHAIR MEYER replied that the amendment would be left as moved with no action taken and be picked up when the committee has a CS. 4:36:55 PM CHAIR MEYER held SB 186 in committee.