SENATE JUDICIARY COMMITTEE May 2, 2000 10:55 a.m. MEMBERS PRESENT Senator Robin Taylor, Chairman Senator Rick Halford, Vice-Chairman Senator Dave Donley Senator Johnny Ellis MEMBERS ABSENT Senator John Torgerson COMMITTEE CALENDAR SENATE BILL NO. 314 "An Act relating to primary election nominees for governor and lieutenant governor and regulating the nomination of the candidates for those offices whose names shall be placed on the general election ballot; and providing for an effective date." -HEARD AND HELD DISCUSSION OF A CITIZEN'S CALL FOR IMPEACHMENT OF SEVERAL ALASKA SUPREME COURT AND ALASKA SUPERIOR COURT JUDGES. PREVIOUS SENATE COMMITTEE ACTION SB 314 - No previous action to report. WITNESS REGISTER Mr. James Baldwin, Assistant Attorney General Department of Law Civil Division PO Box 110300 Juneau, Alaska 99811-0300 POSITION STATEMENT: Testified on SB 314 Ms. Gail Fenumiai, Election Program Specialist Division of Elections Office of the Lieutenant Governor PO Box 110017 Juneau, Alaska 99811-0017 POSITION STATEMENT: Testified on SB 314 Mr. Mark Chryson, Chair Alaska Independent Party 2140 Wolverine Circle Wasilla, AK 99654 POSITION STATEMENT: Opposed to SB 314 Ms. Dee Dee Bennis Bristol Bay Native Association PO Box 310 Dillingham, AK 99576 POSITION STATEMENT: Opposed to SB 314 Mr. Michael Jump PO Box 505 Dillingham, Alaska 99576 POSITION STATEMENT: Opposed to SB 314 Ms. April Ferguson Bristol Bay Native Corporation 800 Cordova Street Anchorage, Alaska 99501 POSITION STATEMENT: Opposed to SB 314 Mr. Jim Sykes, Executive Director Alaska Public Interest Research Group PO Box 101093 Anchorage, AK 99510 POSITION STATEMENT: Opposed to SB 314 ACTION NARRATIVE    TAPE 00-27, SIDE A Number 001 CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee meeting to order at 10:55 a.m. Present were Senators Donley, Ellis, Halford and Chairman Taylor. The first order of business to come before the committee was SB 314. SB 314-LIMIT NAMES ON GENERAL ELECTION BALLOT  SENATOR DONLEY explained that SB 314 will amend the Alaska statutes to adopt a different system to determine which candidates will make it to the general election ballot. The top two vote getters in the primary election for the governor's race would appear on the general election ballot. Likewise, the top two vote getters for the office of lieutenant governor would appear with them, as required by the Constitution, on the general election ballot. SB 314 addresses the issue of access to the general election ballot by saying that while a candidate can access the primary ballot via a petition, the only names that can appear on the general election ballot are the top two vote getters in the primary. MR. JIM BALDWIN, Assistant Attorney General, stated SB 314 would have the effect of turning the race of governor into a non- partisan election. If two Republicans, for example, were the high vote getters in the primary election, they would be the candidates for the general election. He questioned how this approach will square with the pending decision of the U.S. Supreme Court regarding the open primary, specifically if the court rules against the open primary. He asked whether another process would have to be instituted by the political parties leading up to what is now the primary for the office of governor, such as a pre-nomination. ASSISTANT ATTORNEY GENERAL BALDWIN said the second problem created by SB 314 is that its provisions would be placed in AS 15.25, a set of statutes designed to provide for the nomination of candidates. No change, however, will be made to AS 15.25.110, which gives one of those candidates the power to withdraw from an election, and it gives the power to the party committee, through the party nomination process, to replace that candidate. Without a change to that statutory scheme, a candidate who received 26,000 votes in the primary election could become the person who is nominated at the general election. ASSISTANT ATTORNEY GENERAL BALDWIN noted another potential problem is third party access to the ballot. At one time, Joe Vogler, an Alaska Independent Party representative, took the Department of Law to task over the question of third party access. The statute governing that access had a very high bar. He expressed concern that SB 314 will prevent third parties from accessing the general election ballot which will expose the State to litigation. The AIP fought hard in the Vogler case and succeeded in establishing a third party's right to access on the general ballot. The Alaska courts have been inclined to protect third party rights to access. Number 510 MS. GAIL FENUMIAI, Elections Specialist, Division of Elections, said after a cursory review of the legislation she has several questions. She asked whether Section 1 will allow write-in candidates to have equal access to the ballot in the general election. She expressed concern that SB 314 might disenfranchise a write-in candidate's ability to run a successful campaign. It appears that Section 1 eliminates the possibility that a write-in candidate could run for governor or lieutenant governor. SENATOR DONLEY responded that Section 1 eliminates that possibility only for the general election. MS. FENUMIAI explained that write-in candidates for governor and lieutenant governor are only allowed to run in the general election. MS. FENUMIAI noted that Section 2 of SB 314, which deals with placing nominees on the general election ballot for all other offices, reads, "the name of the candidate receiving the highest number of votes for an office by a political party." She asked if that means each political party so that the highest vote getter in each party for each office advances to the general election ballot. SENATOR DONLEY replied if Ms. Fenumiai is asking whether Section 2 maintains the status quo for all candidates other than the governor and lieutenant governor, the answer is yes. MS. FENUMIAI asked if only one candidate runs for the office of lieutenant governor whether that candidate would run with both of the gubernatorial candidates if they were all in the same party. SENATOR DONLEY explained the one candidate would run with both but it would be an easy option to go to the second highest vote getter for lieutenant governor. MS. FENUMIAI asked what would occur if there was no second candidate from that party and whether the second highest vote getter for the gubernatorial race would appear on the ballot alone. SENATOR DONLEY said under existing statute that party could nominate a candidate to fill the gap. MS. FENUMIAI asked if Section 4 applies the same provisions of Section 3 to no party candidates, basically petition candidates. SENATOR DONLEY agreed. SENATOR ELLIS pointed out that representatives of the Alaska Republican Party were present. He asked Chairman Taylor whether he invited representatives from the Republican Moderate Party or the AIP to attend the meeting. CHAIRMAN TAYLOR replied he invited no one. He added that Mr. Mark Chryson of the AIP and Mr. Sykes were listening via teleconference. Number 810 MR. MARK CHRYSON, Alaska Independent Party, stated the AIP has several concerns about SB 314. As Mr. Baldwin said, Mr. Vogler took the State of Alaska to court and won. Alaska is unique in that it has six political parties. The definition of a political party requires it to have 6,000 registered voters or to receive three percent of the vote in the gubernatorial election. He asked if Senator Donley's intent is to eliminate all parties except the Republican and Democratic parties. CHAIRMAN TAYLOR replied SB 314 was introduced at the request of the Senate Majority so that the legislature could take a look at other options. He noted the provision pertaining to a majority of the votes for election of the governor is having a difficult time on the House side. MR. CHRYSON said in effect, if SB 314 passes, the legislature will be outlawing any parties other than the Republican or Democratic Parties. It will eliminate ballot access. He said he is not opposed to runoff elections or the instant runoff that has been proposed, and believes that would solve the problems cited earlier. He stated this bill is being heard too late in the session to allow for comments from around the State. He suggested that the committee kill the bill. He noted the Libertarian Party also believes the bill should be shelved. MS. DEE DEE BENNIS, representing the Bristol Bay Native Association, stated SB 314 could negatively impact minority voters. She believes that proposing a major change to the election laws during the last week of the legislative session without adequate review is rash and irresponsible. Rural Alaskans will oppose SB 314 until the full light of public review is allowed. MR. MICHAEL JUMP, representing himself, echoed Ms. Bennis' comments. He opposes SB 314 because it will negatively impact the ability of minority voters to have a choice for the offices of governor and lieutenant governor in the general election. Rural Alaska needs to have the greatest influence that it can in choosing its governor and lieutenant governor. He is also concerned about the ability of third party candidates to get on the general election ballot. MS. APRIL FERGUSON, representing the Bristol Bay Native Corporation, stated opposition to SB 314, primarily because of the process it is undergoing. She received the sponsor statement two minutes ago and, although it is part of her job to review legislation, she cannot respond to legislation she only became aware of 30 minutes ago. She believes the public was given the absolute minimum meeting notice possible. SB 314 makes significant changes to Alaska's election process. Most villagers do not have e-mail or access to BASIS therefore representatives of smaller communities will not have the chance to comment on this legislation. Passing legislation at a dead run excludes Native people from the political process. BBNC wants its members to have the opportunity to participate and comment. SB 314 would have prevented a very popular governor, Wally Hickel, from participating in office. She expressed concern that Mr. Baldwin and Ms. Fenumiai only received a copy of this legislation last night and have not had adequate time to analyze it. She respectfully asked committee members to "kill" the bill. MR. JIM SYKES, Executive Director of the Alaska Public Interest Research Group (AKPIRG) and a representative of the Green Party, stated he was unaware of this legislation until minutes before the hearing. He totally agrees with those testifying who criticized this process. This subject affects all Alaskans and deserves wide and deep public consideration and debate. For that reason alone, the bill should not go forward. SB 314 smacks of a shortcut to the Louisiana system which has one of the most politically corrupt histories in the entire system of state elections. Alaskans want more open government, not closed government. A number of U.S. court decisions, regarding fouled access, generally provide more access to the general election, not less. SB 314 restricts the general election ballot in a very discriminatory and unfair way for small parties. He fails to see the logic of why the bill has the highest vote getters of every political party for congressional seats placed on the ballot but it restricts the candidates for governor and lieutenant governor. He fails to see why that distinction is made because the congressional offices are equally important to the governor in terms of a statewide vote. MR. SYKES said if one goes back to the court decisions regarding primary elections, one will see that a primary election is the process by which candidates are nominated for the general election. In Alaska, political parties are prohibited from nominating their own candidates at the convention. The Alaska Court has upheld that parties are only able to nominate candidates for political parties via the open blanket primary. To assume that a candidate could be nominated and then be unable to run in the general election is a violation of the constitutional right of freedom of political association. He questioned how this legislation could be brought forward when it is such a clear violation. MR. SYKES stated if a political party is required to get three percent of the vote at a general election but is unable to participate in that general election when its candidate is not one of the two highest vote getters, that creates a political fix that would toss this system on its ear in a second. The only situation in which a fair election could occur under SB 314 is with the instant runoff vote. He noted he cannot speak for or against that as a representative of AKPIRG, so he will end his testimony for that organization and testify as a representative of the Green Party. MR. SYKES indicated the Green Party introduced instant runoff voting to the House State Affairs Committee in 1991 as a way of building majority, recognizing that candidates were being elected with fewer and fewer votes. That bill is again being considered and heard, which is more than can be said for SB 314. If the Senate Majority's intent is to build a majority, it needs to take another look at instant runoff voting in which the primary and general elections could be rolled into one, eliminating the need for the runoff. The fiscal note attached to the instant runoff election bill was quite high because it contains a one-time cost to educate the voters. He stated he does not see how SB 314 can possibly go forward, considering any of the federal or state court decisions. He repeated that he opposes the bill as a representative of AKPIRG, as a representative of the Green Party, and as a citizen of Alaska. Number 1486 SENATOR ELLIS commented that he believes that many more people would want to testify on SB 314 if they knew about it but due to the late date of the session, they will be unable to. SENATOR DONLEY said he appreciates the testimony given today. He stated he believes the committee needs to work on the issue of what will happen if only one candidate runs for lieutenant governor. He noted that will only be a problem if the top two vote getters in the primary are from the same party. He suggested three solutions. First, place the second highest vote getter from that party with the second highest vote getter for governor; second, place the top vote getter with both; or third, allow the party to place a candidate on the ballot. He also said he thinks the concern raised about the three percent of votes requirement for parties is valid and should be addressed. In addition, he suggested that legal research of case law regarding write-in votes on a general election should be conducted. CHAIRMAN TAYLOR agreed and stated that several aspects of SB 314 need further refinement. SENATOR DONLEY suggested that the committee continue to work on this legislation. SENATOR ELLIS asked if this legislation will be considered during the interim and stated he will not support it if it passes out of committee at this time. CHAIRMAN TAYLOR stated that serious questions have been raised about SB 314 and he wants the opportunity to look at the legislation further. Number 1685 [During the remainder of the meeting, the committee discussed the articles of impeachment regarding various judges. Upon request, a verbatim transcript was prepared.] CHAIRMAN TAYLOR: Yesterday we received referral of 30 Articles of Impeachment on various judges across the state - all of the Supreme Court and most of the Superior Court judges in both Fairbanks and Anchorage - the third and fourth judicial districts. They appear to be technical in nature but I can't make a cursory review of that upon which anyone would want to base anything and that would only be my opinion as concerns those allegations also. With the limited amount of time left in the session, I sincerely doubt that the committee has either the resources or the energy to move forward at this point in investigating those matters or holding hearings on those matters and, in fact, I think there's an inherent conflict if the committee or its staff were to be doing that type of an investigation in that we also are the ones that would then have to sit in judgment not only in this committee, but also on the floor of any such bill that came up. And that's why those who have gone through the process before, Congress included, just most recently the Judiciary Committee in the House with Mr. Hyde - the committee to whom the special prosecutor reported. We're also talking about a significant expenditure of state resources if this matter is to be fully and thoroughly resolved. Though it's going to be my recommendation, at least to the committee, that we respond back to the President with at least a memorandum indicating those concerns and asking for her reconsideration of the referral or for further direction from the leadership as to the expenditure of funds and resources on this matter. This committee will cease existence for all intents and purposes upon the sine die motion of this legislative session. SENATOR ELLIS: Mr. Chairman, would you be willing to circulate that memo to committee members in draft form? CHAIRMAN TAYLOR: Oh, absolutely. I'm still working on it and will be happy to do that. If there are comments by the committee members, I'd sure appreciate hearing those too. SENATOR HALFORD: What is the next step for the advocates? CHAIRMAN TAYLOR: There really is no next step. It all depends upon the action taken by the Senate President. They are allowed to lodge those as citizens with the Senate. It is up to the President, then, to decide what referrals and what actions should be taken on them. SENATOR HALFORD: Precedent? CHAIRMAN TAYLOR: None that I'm aware of. This is somewhat of an historic application of the law. There isn't much precedent. The only precedent we really have around here is the impeachment of Governor Sheffield, or the attempted impeachment of Governor Sheffield, and that was also a very expensive and energy- consuming process. But if, in fact, our Constitution is to have any meaning, and these laws are to have any meaning, the citizen does have the right to file such an application and then the discretion of the Chair within the Senate, I believe, then controls the actions that would be taken from that point forward and then of course the discretion or discernment of the body and the various committees that would approach it. I think we can very quickly find ourselves in a process that may consume a great deal of time and energy and I just wanted to raise those concerns. I think there's some inherent conflict concerns. When you start having a special prosecutor within the state who is a state attorney serving under the very same people being investigated - I think there are lots of inherent conflicts and problems within this process that may involve reaching to outside counsel - people outside of the state. It could be a very involved process or it could be merely a matter of technical or procedural matters that could be more easily addressed. But, in either instance, we're looking at a significant volume of material that has been provided to us and we need to make some decision about how we're going to address it. So I will try to circulate a memo to the members and get back to the Chair on this before the conclusion of the session. SENATOR HALFORD: With some kind of staff analysis on this? CHAIRMAN TAYLOR: Yes, and I think that may help us more than anything else. There's already been staff analysis done by legal counsel for the Majority but I would like to have a further review of that by Leg [Legislative] Council so that we'd all have an opportunity .... SENATOR HALFORD: Yes, I'd like to know what their response is. CHAIRMAN TAYLOR: And with that, I appreciate everybody's attendance today. We have not moved the bill, Mr. Sykes, you'll be happy about that as will Mr. Chryson, I'm sure. Thank you all for your attendance and your patience . We're adjourned. [END OF MEETING.]