SB 80-INITIATIVE SEVERABILITY  3:48:39 PM CHAIR SHOWER reconvened the meeting and announced the consideration of SENATE BILL NO. 80, "An Act relating to proposing and enacting laws by initiative." 3:48:50 PM SENATOR CHRIS BIRCH, Bill Sponsor, Alaska State Legislature, Juneau, Alaska, read the following sponsor statement: SB 80 seeks to ensure 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 legislature's 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 signatures. 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 court's 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 would rectify this situation. Under this bill, if a court determines that language in a proposed initiative is unconstitutional or severed, the Lieutenant Governor must reject the entire initiative petition and prohibit it from appearing on the ballot. 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, restores the legislature's right to review and enact substantially similar legislation to stop an initiative from moving forward. SENATOR BIRCH noted that Eric Fjelstad, who assisted with the bill, was online. 3:51:57 PM KIM SKIPPER, Staff, Senator Chris Birch, Alaska State Legislature, Juneau, Alaska, said the bill is a single section. Section 1 amends AS 15.45.240 by adding the following subsection: (b) The provisions of an initiative are not severable after being circulated under AS 15.45.110. An initiative petition may not contain a severability clause. If a court finds a provision of an initiative petition unconstitutional during a review under (a) of this section, the court shall order the lieutenant governor to reject the entire initiative petition and prohibit the placement of the initiative on the ballot. CHAIR SHOWER advised that the committee is discussing the possibility of changes and those are forthcoming. After public testimony, he will see if those changes are available. 3:53:20 PM At ease 3:54:14 PM CHAIR SHOWER reconvened the meeting and opened public testimony on SB 80. 3:54:36 PM LARRY BARSUKOFF, Director of Operations, Alaska Policy Forum, Anchorage, Alaska, testified in support of SB 80. He said the right of Alaska voters to directly participate in the legislative process is to be cherished and protected. Voters must have an absolute guarantee of the integrity of the ballot initiative process. Since 1988, a loophole has expanded and is now used when ballot initiative groups rely on the Alaska Supreme Court to act as a legal editor of ballot initiatives. Language that may not pass constitutional muster is included in petition booklets. These groups know that the Supreme Court will remove the offending language later. This violates the integrity of the ballot initiative process. Voters casting their ballots for or against an initiative should know absolutely that the ballot language was exactly the same as what was presented for signatures. MR. BARSUKOFF said that a further effect of the loophole is the legislature can be stripped of its role to counterbalance the system. The legislature has the right to enact legislation substantially the same as proposed in initiatives, thus removing those initiatives from the ballot. When initiative language is stricken or changed by the court, the legislature can lose its ability to provide oversight of the process. To prohibit the ability of a court and unelected judges to pick, choose, and delete language in a ballot initiative would require authors of an initiative to more carefully vet their language and would keep judges out of the business of crafting legislation. Not imposing a prohibition of severability robs the legislature of its right and mandate to act as a check on the initiative process by enacting legislation similar to a ballot initiative. Not imposing a prohibition of severability robs Alaska's voters of the assurance that the language on the ballot when they vote is the same as the language they supported during the signature gathering. It would be a good policy for this technicality to be addressed. 3:57:26 PM BETHANY MARCUM, Executive Director, Alaska Policy Forum, Anchorage, Alaska, testified in support of SB 80. She said the state is fortunate to have a constitutionally-enshrined ballot initiative process. Not all states trust their citizens to participate directly in the legislative process. In order for the ballot initiative process to continue to have value for future generations of Alaskans, it is imperative to ensure the integrity of the process is ensured. A loophole was created by past Supreme Court decision that allows the court to tamper with initiative language. While the intention may be good, the result can be that the words which voters see on their ballots may be different than the language that was displayed to them and other voters who earlier signed the petition booklets. Alaska experienced this in 2018 with Ballot Measure 1. It is an injustice to Alaskan voters when the words they approve for a ballot are changed by unelected judges. Another effect of the loophole is that the legislature can be stripped of its role to act as a counterbalance in the ballot initiative process. The legislature has the right to enact legislation substantially the same as proposed in an initiative, thus removing the initiative from the ballot. When the court changes or strikes initiative language, the legislature effectively loses it ability to provide oversight over this process. SENATOR REINBOLD said she understands the concept of the bill, which is that judges should not be able to amend initiatives, but the problem she has is that she hasn't liked numerous court decisions. The court has struck down numerous laws that legislators have worked on diligently. She understands that the bill would not allow the court to amend, but it seems to increase their power to kill initiatives. She has seen the courts often use one little phrase in the constitution without looking at the constitution globally. For example, the constitution says people can enjoy their rewards of their industry, but it also allows the government to tax, so it can be in conflict. She said she doesn't want the court to do what it did with the marriage law when it was as clear as day that marriage was between one man and one woman. She asked if this increases the power of the courts. MS. MARCUM said she didn't believe so because so many ballot initiatives already involve a lawsuit and the courts must rule on them. The solution to what she is discussing is SJR 3 that Senator Shower has introduced and some sort of judicial reform. 4:01:49 PM MARLEANNA HALL, Executive Director, Resource Development Council for Alaska, Anchorage, Alaska, testified in support of SB 80. She said she had submitted a letter of support for SB 80 and wanted to share additional points about why SB 80 is needed. The voters have the ability to participate in the legislative process by passing law or overturning law through the ballot measure process. Voters can support initiatives by writing them, signing onto them, and voting for them. Throughout these actions the language should remain unchanged once a voter signs in support. SB 80 would remove the court's ability to sever the language, thereby leaving that language intact. As the law is currently written, rather than ensuring that the ballot initiative language passes legal and constitutional muster before being presented to voters, they are concerned that groups will rely on Alaska's courts for legal editing services. SB 80 will send a message to proponents that the language of the initiative must be carefully drafted to ensure it is constitutional. 4:03:46 PM ALBERT FOGLE, Vice President, Alaska State Chamber, Anchorage, Alaska, testified in support of SB 80. He said SB 80 is needed to retain the integrity of the signature-gathering process for a ballot measure. Once the voters sign their names to specific ballot measure language, their support should be applied only to the exact language to which they lent their names. If any court decides to alter or remove language from the initiative, it cannot be assumed that voter support remains. If a court severs language from a proposed ballot measure, it should be mandatory that initiative proponents go back and ask voters to support the revised language that will actually appear on the ballot. They applaud their effort to correct a deficiency that has been overlooked with the ballot initiative process. SB 80 will result in fewer protracted legal battles once ballot measure proponents understand that should any section of their initiative not pass constitutional muster, they would be required to revert to the signature-gathering stage of the process. This should result in more carefully crafted ballot measures being proposed at the outset, which means a smoother, more predictable process for all parties. 4:05:57 PM ERIC FJELSTAD, representing self, Anchorage, Alaska, testified in support of SB 80. He said he is an attorney who has worked with ballot measure initiatives for the past ten years. Testimony has focused on three things. First is truth in advertising. When voters sign a pamphlet, that language should not change. Second is the constitutional issue. The constitution puts power with the legislature as the last stop on initiatives. There is the ability to cut off an initiative by enacting something substantially similar. That is an important safeguard. Last fall with the salmon initiative, the court struck major provisions of the initiative and then sent that on to voters. The key takeaway is that the modified version was different than what the legislature looked at initially. He would argue that the dynamics are entirely different after something has been modified by the court. If the bad portions of an initiative are removed, the odds go up that the legislature would take action, so this matters. This is a balance of power issue between the legislature and the courts. It is the rightful place of the legislature to make it clear that this is their prerogative and not the courts. He sees this as an apolitical issue that would apply equally to any ballot measure. The last point is that the court's last ruling will encourage all sorts of bad behavior with initiative proponents. There is no reason to worry about overreach or the constitutionality of the draft because the courts will step in at the end. SB 80 restores the balance of powers as the architects of the constitution intended. 4:08:50 PM CHAIR SHOWER closed public testimony on SB 80. 4:08:58 PM At ease 4:10:52 PM CHAIR SHOWER reconvened the meeting. He asked if the committee members had any questions. 4:11:23 PM SENATOR KAWASAKI asked if the purpose is to restrict the total numbers of ballot measures that go before the voters because the legislators can do it. He asked how many ballot measures in the last ten years have gone before the voters. SENATOR BIRCH clarified that the intent is not to restrict the number of ballot measures. The intent is that if the courts rewrite a ballot measure that signatures had been gathered for, if the language is substantially changed and severed by the courts, the process should start over. The language should be constitutional from the get-go. SENATOR KAWASAKI asked how many ballot measures had gone before voters in the last ten years. SENATOR BIRCH said his office would get the answer. SENATOR KAWASAKI asked Senator Birch what the term "substantially" means to him in the context of changing or severing language in a ballot initiative. SENATOR BIRCH replied that the severability would relate to the constitutional aspects. If the language is revised to make the ballot question constitutional, then the ballot measure changes substantially from what people signed. SENATOR KAWASAKI said the use of severability clauses are common. They are in almost every bill. He asked why is it necessary to remove severability clauses from laws that would appear before the people vs. laws that would appear before the legislature. SENATOR BIRCH said the issue is the effort, energy, and initiative it takes to prepare a properly constructed ballot measure and gather those signatures. It needs to be done right the first time. SENATOR KAWASAKI asked how often an initiative is later challenged. SENATOR BIRCH said he would follow up with the answers. SENATOR KAWASAKI said he wonders about the generation of the bill and what effect this will have on a fundamental constitutional right of initiative and referendum. He has questions around those. On the timeline, he asked if they looked at changing the timeline to address the problem, for example, the total numbers of days for the lieutenant governor to certify and the number of days the petitioners have after. He asked if they looked at a way that would be more amenable to the petitioners. SENATOR BIRCH said that once the signature gathering begins, the expectation would be that the document has been constitutionally vetted. The content should not change substantially between the signature-gathering phase and what is on the ballot. 4:15:37 PM SENATOR COGHILL asked how many initiatives have been changed after the vetting process and before the voting process. SENATOR BIRCH said he would follow up with the information. SENATOR COGHILL said the concept is right, but these are questions that need to be addressed to get to the finish line. One of the most recent initiatives had a change with a constitutional tweak so it's easy to demonstrate why this needs to be fixed. The legislature also has the same restrictions. Some of their laws have been slapped down by the courts. They are still on the books but are invalid. It is a good concept, but it's necessary that background information. 4:17:53 PM SENATOR REINBOLD asked if the court has to be very specific about why it is striking down an initiative as opposed to making a general reference to the constitution. SENATOR BIRCH deferred the question to Mr. Fjelstad. 4:18:33 PM MR. FJELSTAD said the court would identify a specific constitutional provision. Last fall, the court found that multiple provisions of Ballot Measure 1 violated the appropriations clause and those were severed from the initiative. The remainder moved forward. Regarding how many times this has come up, he thought it was just a handful, less than five. SENATOR REINBOLD said that's helpful, but sometimes the court looks at different clauses in the constitution, like it did with marriage between a man and a woman. She asked him if the court has to look at the constitution globally or if they can strike the measure down based on one clause. MR. FJELSTAD said the court primarily would focus on the arguments the parties make rather than finding authority on its own. If a clause is struck down, the court would have to identify the specific constitutional provision for doing so. SENATOR REINBOLD commented that it seems that the court should have to look at the constitution globally rather than just a little provision because almost anything can be argued with each and every clause in the constitution. MR. FJELSTAD said there is no hard and fast rule but if the parties argue three constitutional provisions, generally the court will look at those three and not everything else. 4:21:25 PM SENATOR REINBOLD said she absolutely supports the initiative process and thinks it is brilliant in the constitution. She wants to make the courts to look at the constitution globally. So many times, they have struck down some awesome things because of a little clause. "I don't want to increase the power of the courts at all. That is not the intention. I think they are way too powerful as it is right now. The power should really belong with the people," she said. As long as the courts must specify why they strike things down, the concept is good. SENATOR MICCICHE clarified that the section of law only deals with initiatives, not referendums. MR. FJELSTAD agreed. SENATOR MICCICHE said he supports this and sees it as completely nonpartisan. He related his personal experience gathering signatures on parental consent. He'd rather have known it was unconstitutional in advance instead of wasting time waiting for a ruling. Referencing the fish initiative process, if he were running an initiative today, he would shoot for the moon. He would go for most extreme stance and let the courts fix it for him, which is what occurred. He is a huge supporter of the initiative process. When folks feel the legislature is not doing its job, they have the ability to make law and to repeal laws through the referendum process. This puts more pressure on the courts to determine constitutionality in advance so that perhaps people on either side can come back with something likely constitutional, collect signatures, and put it on the ballot. It is a time saver. It is the right thing to do. It avoids the courts rewriting initiatives differently from what was proposed. SENATOR REINBOLD said she was out there collecting signatures when it was freezing cold. She was ticked off when it was struck down. She reiterated Senator Micciche's comments. 4:25:21 PM At ease 4:28:03 PM CHAIR SHOWER reconvened the meeting. 4:28:55 PM SENATOR COGHILL moved to report SB 80, Version U, from committee with individual recommendations and attached fiscal note(s). 4:29:14 PM CHAIR SHOWER found no objection and SB 80 moved from the Senate State Affairs Standing Committee.