ALASKA STATE LEGISLATURE  SENATE STATE AFFAIRS STANDING COMMITTEE  February 2, 2010 8:59 a.m. MEMBERS PRESENT Senator Linda Menard, Chair Senator Kevin Meyer, Vice Chair Senator Hollis French Senator Albert Kookesh Senator Joe Paskvan MEMBERS ABSENT  All members present COMMITTEE CALENDAR  SENATE JOINT RESOULTION NO. 21 Proposing amendments to the Constitution of the State of Alaska relating to and increasing the number of members of the house of representatives to forty-eight and the number of members of the senate to twenty-four. MOVED SJR 21 OUT OF COMMITTEE SENATE BILL NO. 92 "An Act ratifying an interstate compact to elect the President and Vice-President of the United States by national popular vote; and making related changes to statutes applicable to the selection by voters of electors for candidates for President and Vice- President of the United States and to the duties of those electors." MOVED SB 92 OUT OF COMMITTEE PREVIOUS COMMITTEE ACTION  BILL: SJR 21 SHORT TITLE: CONST. AM: INCREASE NUMBER OF LEGISLATORS SPONSOR(s): COMMUNITY & REGIONAL AFFAIRS 04/09/09 (S) READ THE FIRST TIME - REFERRALS 04/09/09 (S) STA, JUD, FIN 02/02/10 (S) STA AT 9:00 AM BELTZ 105 (TSBldg) BILL: SB 92 SHORT TITLE: U.S. PRESIDENTIAL ELECTION COMPACT SPONSOR(s): DAVIS 02/02/09 (S) READ THE FIRST TIME - REFERRALS 02/02/09 (S) STA, JUD, FIN 02/02/10 (S) STA AT 9:00 AM BELTZ 105 (TSBldg) WITNESS REGISTER SENATOR DONALD OLSON Alaska State Capitol Juneau, AK POSITION STATEMENT: Sponsor of SJR 21. DAVE GRAY Aide to Senator Hoffman Alaska State Capitol Juneau, AK POSITION STATEMENT: Provided information on SJR 21. Gordon Harrison Representing himself Alaska State Capitol Juneau, AK POSITION STATEMENT: Supported SJR 21. PAM VARNI, Executive Director Legislative Affairs Agency (LAA) Alaska State Capitol Juneau, AK POSITION STATEMENT: Provided information on SJR 21. SENATOR BETTYE DAVIS Alaska State Capitol Juneau, AK POSITION STATEMENT: Sponsor of SB 92. QUINN KENDALL Aide to Senator Davis Alaska State Capitol Juneau, AK POSITION STATEMENT: Provided information on SB 92. TOM OBERMEYER Aide to Senator Davis Alaska State Capitol Juneau, AK POSITION STATEMENT: Provided information on SB 92. PAT ROSENSTIEL National Popular Vote Alaska State Capitol Juneau, AK POSITION STATEMENT: Supported SB 92. LARRY SOKOL National Popular Vote POSITION STATEMENT: Supported SB 92. ACTION NARRATIVE 8:59:12 AM CHAIR LINDA MENARD called the Senate State Affairs Standing Committee meeting to order at 8:59 a.m. Present at the call to order were Senators French, Paskvan and Menard. Senator Kookesh joined one minute later. SJR 21-CONST. AM: INCREASE NUMBER OF LEGISLATORS  8:59:47 AM CHAIR MENARD announced that the first order of business to come before the committee was SJR 21. SENATOR OLSON, sponsor of SJR 21, said the resolution would put a constitutional amendment before the voters in the 2010 general election to increase the size of the legislature by four senators and eight representatives. In the last 50 years, the state population has more than doubled and state revenue has changed significantly. He referred to Table 2, "Population Trends for Election Districts in 2010," comparing each district's current population with a forecast of how each district's population will change if no action is taken. 9:02:07 AM SENATOR MEYER joined the meeting. SENATOR OLSON referred to the far right column labeled "Difference from Average" on the first page of the table and pointed out the significant negative numbers for Districts 1 through 5. He referred to the second page and the decrease in population as it affects Northwest Alaska. Redistricting will be dramatic after the 2010 census. SENATOR OLSON said those involved in performing the redistricting must also satisfy federal guidelines and the Voter Rights Act of 1965 when dealing with large minority populations. 9:05:18 AM SENATOR OLSON reiterated that it is not just Alaska's population that has changed, but also its demography and financial situation. The 1960 fiscal year had a budget of $104 million; today the budget is $11 billion and the same number of legislators decides where the money goes under pressure from a 90-day session. Some people in villages feel their needs are not being addressed because there are so few legislators compared to the population. He pointed out that a number of other states have increased the size of their legislatures. CHAIR MENARD asked Senator Olson to read the last paragraph of his sponsor statement. SENATOR OLSON referred to his sponsor statement, stating that between 1960 and 2006, 29 states have changed the size of their legislative body. For the nine states with small populations similar to Alaska's - between 500,000 and 1,500,000 - the average size of their legislative bodies is 134. 9:07:29 AM DAVE GRAY, aide to Senator Hoffman, said that the urban areas are also affected by population changes taking place in rural areas. [Mr. Gray referred to large maps on the wall.] He pointed out the significant districting changes that have taken place since 1984. 9:10:19 AM MR. GRAY said changes to large rural districts impact urban area representation too, such as the MatSu Borough and Kenai. CHAIR MENARD pointed out that Senator Kookesh's business card is a good visual illustration for the huge size of his district: his district is colored in on a map of Alaska and is half the state. MR. GRAY said that with the 2010 census underway this is a timely issue. The approval of this legislation could impact the reapportionment board's decisions as opposed to making criticisms after redistricting. SJR 21 tries to be proactive in divvying up the state equally. He pointed out that under this legislation, the Bush districts would stay the same. New representatives would probably be from urban areas. 9:12:46 AM SENATOR KOOKESH asked if the overall impact of this resolution would be the decrease from 15,000 to 13,000 people per House seat. SENATOR OLSON said some Alaska House districts are already at 13,000 and SJR 21 attempts to ensure equitable distribution throughout the state related to the population. SENATOR OLSON said he has the advantage of having only 54 communities in his district. Though it is large, he said he is centrally located and can fly to his villages. But he noted that Senator Kookesh's district encompasses 123 villages, and it's difficult for a representative or senator to get around such a district. Reducing the size of the districts would make it easier for representatives to go to villages and talk to people there face to face. 9:15:02 AM SENATOR MEYER asked whether or not the objective of SJR 21 is to decrease each House District to a population of 13,000. If not, he asked what the objective of SJR 21 is. SENATOR OLSON replied that state legislators are spread thin and people in remote communities can easily feel disenfranchised. He said he is not stuck on the numbers and increasing senators to 24 and representatives to 48 is a starting suggestion. SENATOR MEYER said he does not know the magic number. His district of 30,000 concentrated people is very manageable. Rural areas have unique challenges and even with more senators, some villages still might not have the opportunity to see theirs. 9:17:53 AM MR. GRAY advised looking at the "Average Population" numbers at the bottom of the table "Population Trend for Election Districts in 2010." The average population for each district in 2000 was about 15,000. The Department of Labor estimates that the average population per district was almost 17,000 in 2008 and will be 17,309 in 2010. The population is increasing, but as shown in column four, labeled "Difference from Average," some districts will have to give up some population and other districts will have to pick up some population to reach that average. The 48 House districts proposed by SJR 21 would create an average district population of about 14,000, which is closer to the average in 2000; rural districts would not have a big change in their average population size. SENATOR MEYER said that Table 5 from the National Council of State Legislatures (NCSL) shows a lot of variation in district populations. California has 451,000 people per House district; New Hampshire has 3,000 and Alaska has 15,000. It is hard to determine the right district population size and add to that the facts that Alaska's large geographic area and small population are unique. 9:20:45 AM SENATOR KOOKESH commented that if Alaska keeps the same number of districts, his district would have to go into the Wasilla area for its population to increase enough and the Wasilla district population to decrease enough. Such reapportioning could be challenged by the Department of Justice and minority voting area rules. Additional seats must be created for Anchorage and Wasilla due to their growth or the whole state will have to be changed. CHAIR MENARD added that Representative Harris from Valdez comes as far as Sutton in the MatSu Borough. SENATOR PASKVAN said that 75 percent of the communities in Alaska have populations of less than 1000. He said it is important that these communities have a voice in both the Senate and the House. 9:23:23 AM CHAIR MENARD asked Senator Olson and Mr. Gray to speak to the fiscal impact. SENATOR OLSON said a person down on the Lower Yukon, in the White Hampton area that has just been declared a federal disaster area, has far different concerns than a person in another part of his district that provides 80 to 90 percent of the revenues for Alaska. The person up on the North Slope has got his own concerns that are far different from a fishing-based community or a whaling-based community. He said that Senator Kookesh is stretched even thinner. MR. GRAY said the average cost of offices and staff is fairly straight forward in the fiscal note. He said that Pam Varni, Executive Director of the Legislative Affairs Agency, could provide a more detailed explanation of those costs. SENATOR OLSON said there are two fiscal notes. One puts the resolution on the general election ballot of 2010. The other relates to implementing four more elected senators and eight more elected representatives and starts at roughly $6 million in fiscal year 2013. 9:26:36 AM SENATOR FRENCH said SJR 21 is a good big-picture idea and he supported it. He asked how the capitol building would be redesigned to accommodate four senators and eight representatives. SENATOR OLSON said the new building could provide some opportunity for space and pointed out that in the past offices have been around the capitol, not in the capitol proper. SENATOR FRENCH asked about the chambers. SENATOR OLSON said things have changed over the years; the House Speaker receptions are now where the original Senate Chambers used to be. CHAIR MENARD said if the committee passed SJR 21 out today, the next committee could address the question of space with Ms. Varni. SENATOR FRENCH said that was satisfactory. 9:28:31 AM CHAIR MENARD opened testimony for SJR 21. GORDON HARRISON, former Executive Director of the Alaska Redistricting Board, said that without this legislation the ideal district population will become 17,500 and rural districts would increase geographically because most are 3,000 to 4,000 people below this. The importance of SJR 21 is that it provides effective representation for rural areas which are getting so big that legislators do not know their constituents, never have a chance to talk to them, and do not know what their issues are. Members of rural communities do not know how to vote for people who are, in some cases, from another world. Campaigning is difficult and expensive; so recruiting candidates is difficult. This is an important public policy issue of fair, reasonable representation for rural areas. Without an increase in the number of seats, rural districts will be huge or disappear. 9:31:28 AM SENATOR KOOKESH said that to get to Lime Village in his district, he has to fly from Angoon to Juneau, Juneau to Anchorage, Anchorage to Fairbanks, Fairbanks to Aniak, and Aniak to Lime Village where he could then visit five villages in that area by small airplane. The cost, just from Angoon to Juneau one way is $125. CHAIR MENARD noted that Margaret Walsh from the Department of Law was available for questions. SENATOR FRENCH asked if Mr. Harrison would comment on the implications of the US Voting Rights Act of 1965 on Alaska's districts. MR. HARRISON explained that Section 5 of the Voting Rights Act applies to Alaska and everything regarding elections, including redistricting, is scrutinized by the Justice Department. The standard violation in Section 5 is retrogression, meaning redistricting results in fewer minority districts. Without SJR 21, Mr. Harrison said he did not see how retrogression can be avoided. He said the following three of the nine effective Native majority districts could be lost: House districts 5 and 6 and Senate district C. 9:34:51 AM MR. HARRISON suggested that the Justice Department or federal courts may not prohibit this retrogression because the demographics are so strong. He said his layman's view is that if the redistricting plan follows traditional redistricting principles and retrogression is shown to be unavoidable and minimal, the Voting Rights Act will not prevent the loss of these Native districts. SENATOR MEYER said he understands that SJR 21 is not primarily concerned about the population of each district, but rather with keeping districts more compact so legislators do not have to travel hundreds of miles to see their constituents. To achieve that, each district population must be reduced and more house and senate districts would be created in the highly populated areas. MR. HARRISON said that the distribution of power between rural and urban areas is population based and would stay the same. He agreed that all new districts would go to the Railbelt - Anchorage, Fairbanks, Matsu and the Kenai Peninsula - not to rural areas. However, additional districts would allow rural areas to hold on to what they have. 9:37:11 AM CHAIR MENARD restated Senator French's earlier question about accommodating more legislators in the chambers and in the Capitol building. PAM VARNI, Executive Director, Legislative Affairs Agency (LAA), said that the House and Senate Chambers could both utilize the existing extra desk for the presiding officer who always sits at the front. Without a capital appropriation to build another building or expand, creativity and the cooperation of existing legislators would be required. She noted that the size of the different offices in the capitol has been increased over the years. She suggested that the Governor and Lieutenant Governor could be asked if they would consider moving to the State Office Building, freeing up the third floor. The LAA would look at floor plans and decide how to accommodate more legislators as economically as possible. She noted that the fiscal note of $1.5 million for remodeling was a conservative figure. 9:40:37 AM CHAIR MENARD closed public testimony. 9:41:54 AM At Ease. 9:42:09 AM CHAIR MENARD called the meeting back to order at 9:42. SENATOR MEYER moved to report SJR 21 from committee with individual recommendations and attached fiscal note(s). There being no objection, the motion carried. 9:42:48 AM At Ease SB 92-U.S. PRESIDENTIAL ELECTION COMPACT  9:46:36 AM CHAIR MENARD called the State Affairs Committee meeting back to order at 9:46 and said the next order of business to come before the committee was SB 92. QUINN KENDALL, aide to Senator Davis, sponsor of SB 92, said that under the National Popular Vote Interstate Compact, electoral votes, which are based on the number of US representatives and US senators in each state, would be awarded to the national winner, not the state winner. He said the US Constitution gives each state exclusive control over awarding their electoral votes; the winner-take-all rule is not in the Constitution. He pointed out that the states of Maine and Nebraska award electoral votes by congressional district. As of January 2010, Hawaii, Illinois, Maryland, New Jersey and Washington joined this interstate compact; their 61 electoral votes make up 23 percent of the 270 electoral votes needed for the compact to take effect. 9:49:13 AM MR. KENDALL said the compact has also passed in the House and/or Senate in other states and has continued to gain national support. He explained that the current winner-take-all rule allows a candidate to win the presidency without winning the most popular votes nationwide. This has occurred in 4 of 56 US presidential elections and 1 in 7 of the non-landslide elections. He pointed out that a shift of fewer than 60,000 votes in Ohio would have defeated President Bush despite his nationwide lead of 3.5 million votes in 2004. With the winner- take-all rule, presidential candidates have no reason to poll, visit, advertise or organize in states where they are far ahead or behind. He explained that candidates concentrated over 66 percent of their campaign visits and ad money in just 6 battleground states in 2008; 98 percent went to 15 states. He said voters in two-thirds of the states were essentially spectators to the election. MR. KENDALL reported that under the National Popular Vote Interstate Compact, all electoral votes from participating states would be awarded to the presidential candidate who received the most popular votes in all 50 states and Washington D.C. The Interstate Compact becomes effective when enough states join that their collective electoral votes add up to a majority, that is, enough electoral votes to elect a president. 9:51:07 AM MR. KENDALL said the National Popular Vote Interstate Compact will increase political efficacy and civic engagement. TOM OBERMEYER, aide to Senator Davis, said that the Electoral College would remain intact under the proposed interstate compact, which is a constitutionally authorized method for states to address problems. With this compact, the Electoral College would change from an institution reflecting voters' state-by-state choices or, in the case of Maine and Nebraska, district-wide choices, into a body reflecting voters' nationwide choice. He explained that the proposed compact would require each member state to award its electoral votes to the presidential candidate who received the largest number of popular votes in all 50 states and the District of Columbia. The interstate compact becomes effective only when it encompasses states collectively possessing a majority of the electoral votes. In this manner, the presidential candidate receiving the most popular votes in all 50 states and the District of Columbia would be guaranteed enough electoral votes to be elected to the presidency. SENATOR PASKVAN asked if the ideal is that each vote count, why not just count each vote and dispense with Electoral College completely. MR. OBERMEYER replied that changing the Electoral College would be more difficult than implementing an interstate compact. The Founding Fathers set up the Electoral College in part because many people were not informed as to who should represent them and did not know their legislators. The Founding Fathers determined that locally-known people could carry a vote forward for the election of the president. 9:54:26 AM MR. OBERMEYER suggested that changing the Electoral College itself might not be possible and this national popular vote bill requires states to agree to "presumably, 888 words in a compact." SENATOR PASKVAN said he is concerned that Alaska would be "contracting away" an essential right by forming a contract with other states. Perhaps a system of counting each vote on a nationwide basis would be better and preserve the Constitution, as well. MR. OBERMEYER replied that counting each vote might be a good solution, but it may not have seemed possible to people who designed the interstate compact. SENATOR FRENCH said he supports SB 92 and that the person with the most votes should win. He recognized concerns about SB 92 but supported the idea as basic democracy. 9:57:02 AM PAT ROSENSTIEL, National Popular Vote, said SB 92 guarantees that the candidate who gets the most votes in all 50 states wins the presidency and that a vote in Ketchikan, Alaska, counts as much as a vote in Clearwater, Florida. SB 92 solves the problem of relegating two-thirds of the country to flyover status because of winner-take-all statutes which are not a constitutional principal. MR. ROSENSTIEL offered a different answer to Senator Paskvan's earlier question about pursuing a constitutional amendment. He explained that Alaska has the right to allocate its electors in its best interest and a constitutional amendment would strip future legislators of their power to do that. However, the interstate compact preserves the right of future legislatures to withdraw from it if there is an unintended consequence or a better choice for Alaska later. States have switched how they allocate their electors throughout history, he said, and he also felt that an interstate compact would be the appropriate method to change Alaska's way of allocating electors. 10:00:30 AM SENATOR PASKVAN asked if the original intent of the Founding Fathers was or was not a winner-take-all system. He said if the goal is to establish a winner-take-all system, which is different from the original intent, why not go to a winner-take- all national vote. MR. ROSENSTIEL said he and Senator Paskvan might have a different understanding of winner-take-all. He explained that winner-take-all statutes currently dictate that a candidate who wins the popular vote in Alaska gets all three of Alaska's electoral votes. He explained that this compact is enacted when more than 270 electoral votes are in it. Those electoral votes are all awarded to the candidate who wins the most votes in all 50 states. He said he opposes abolishing the Electoral College because those electors give Alaska influence in presidential elections. The Founding Fathers intended for states to provide a check on the federal magistrate with their electoral votes, and Alaska can allocate its three electors in any way, including by joining this compact. 10:03:30 AM SENATOR PASKVAN questioned whether or not winner-take-all was the original intent of the US constitution. MR. ROSENSTIEL replied that no, the original intent of the Founding Fathers was not a winner-take-all statute by state, but rather to give each state electoral votes based on their representation to allocate in any way. He said that in the first presidential election, three states operated on a winner-take- all statute of white property owners; the other ten states had other systems. The Founding Fathers intended for Alaska to determine how to exercise its influence through its electors in Presidential elections and this compact is consistent with that constitutional principle. SENATOR PASKVAN said he is troubled by the capacity to sell, as a commodity, our electoral votes, and thereby the election of a president. He asked about the consequences of breaching the compact if, for example, the state had a Governor, a House and a Senate that wanted to breach the compact and oppose the national vote. 10:06:23 AM MR. ROSENTIEL replied that the compact has an enforceability clause. 10:07:12 AM Short at ease 10:07:21 AM CHAIR MENARD called the meeting back to order at 10:07. MR. ROSENSTIEL referred to clause 2 of Article 4 of the National Popular Vote compact as follows: Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President's term shall not become effective until a President or Vice President shall have been qualified to serve the next term. He said if Alaska wanted to pull out of the compact because the vote didn't go the way they wanted it to, that withdrawal cannot become effective between July 20th of a presidential election cycle and the inauguration on January 20th of the following year. A state cannot withdraw from a compact without running counter to the US Constitution's Impairment clause, Safe Harbor clause and possibly 200 years of case law that supports the enforceability of interstate compacts. He reported that no interstate compact in US history has ever been withdrawn from without adhering to the clauses within that compact. LARRY SOKOL, The National Popular Vote, said the enforceability stems from Article 1 Section 10 of the Constitution, known as the Impairments Clause, which says no state shall pass any laws impairing the obligation of contracts. For over 200 years, the Supreme Court has upheld interstate compacts as contracts that are enforceable. He said no state has ever successfully challenged the ability to withdraw from a compact outside the stated withdrawal provisions contained in that compact. 10:11:24 AM SENATOR PASKVAN asked if enforcement had ever been applied to the contractual delegation of authority dealing with Electoral College votes. He said this is not a matter of commerce but of the delegation of a constitutional authority to transfer Electoral College votes, and he is not aware of any case ever dealing with this subject in the nation's 230-year history. MR. SOKOL said to his knowledge Senator Paskvan is correct that there has never been a proposed interstate compact dealing with allocation of electoral votes; however the Contract and Impairment clause of the Constitution has successfully governed all interstate compacts, not just those dealing with commerce. He noted that one of the country's foremost legal authorities on interstate compacts, Professor Joseph Zimmerman of New York, was integral in drafting this compact and wrote a book that contains all the assorted legal precedents and cases. 10:14:02 AM SENATOR PASKVAN asked Mr. Sokol if the most efficient way to make sure each vote counts is to eliminate the Electoral College. MR. SOKOL said he viewed the process of states deciding how to use their electoral votes as the appropriate and historically consistent method. Past changes, such as extending the right to vote for president to the people or eliminating property ownership requirements to be able to vote, have come about through states acting on their own and not through a constitutional amendment. He said that National Popular Vote believes state action, using state rights and the 5th Amendment, is the historically consistent way that the Founding Fathers intended these changes be made. 10:16:07 AM SENATOR PASKVAN asked why he wants to change anything if the original intent of the US Constitution was the advancement of an Electoral College system. If the goal is to change the Constitution so each vote counts, why not just change the Constitution? MR. SOKOL replied that the Founding Fathers intended for states to determine how they can best allocate their electoral votes. In National Popular Vote's proposal, states agree through an interstate compact, that the candidate who receives the most popular votes in all 50 states should receive the electoral votes of each individual state that signed onto the compact. He said he could not say that the Founding Fathers' intention was to have a national popular vote, but their intention clearly was for each individual state to determine how to allocate its electoral votes. 10:17:47 AM SENATOR FRENCH said Article 2, Section 1 of the Constitution says: "each state shall appoint in such manner as the legislature there of may direct, a number of electors…" It is complex, but it is clear that it is within the province of the legislature to determine. SENATOR MEYER said the Electoral College needs to be abolished and a national popular vote system is needed if every vote is to truly count. He mentioned that even if Alaska joined the compact, it would still be a flyover state; candidates would still focus on major population centers. 10:19:31 AM CHAIR MENARD said she would be interested in Professor Zimmerman's expertise. MR. ROSENSTIEL clarified that Senator Meyer's question was about candidates ignoring Alaska during elections due to its location and small population. SENATOR MEYER agreed and pointed out another frustration in Alaska is that a winner is often declared before many Alaskans have voted. He would like to make sure all votes count and that Alaskans realize how important each vote is. MR. ROSENSTIEL said that the compact is intended to make sure that the candidate who wins the most votes in all 50 states wins, and that a vote in every state counts equally. When an Alaskan writes a check to a political party in the presidential campaign, all the money is spent in 6 or 15 battleground states. The compact rectifies Alaska's exportation of this political economy every four years. 10:22:49 AM MR. ROSENSTIEL said the interstate compact will keep resources in Alaska because the votes in Alaska will count toward the national total. He pointed out that the 1960 presidential race came down to 110,000 votes; with the system proposed in the interstate compact, all eyes would have been on Alaska and Hawaii, the last polls to close. He suggested Hawaii entered the compact because a winner would not be declared hours before their polls close. Alaskans feel their votes are undervalued and a poll showed that 70 percent think this proposal is a good idea. 10:25:03 AM CHAIR MENARD opened public testimony. SENATOR FRENCH commented that this is a big-picture bill that triggers thought about democracy. SENATOR PASKVAN said he is troubled by not changing to a system in which each vote counts and the president is elected by a majority across all 50 states. He was troubled by the legislative branch of each state being given the ability to direct the state's Electoral College. He worried that Alaska under this language would be delegating its electoral votes to another state's population. He said he can foresee a state being rewarded by breeching the compact in some circumstances and creating litigation. 10:27:30 AM SENATOR Meyer moved to report SB 92 from committee with individual recommendations and attached fiscal note(s). There being no objection, the motion carried. 10:28:16 AM Finding no further business to come before the committee, Chair Menard adjourned the meeting at 10:28 a.m.