For better elections or worse: Jungle primary decision now awaits Supreme Court ruling - Must Read Alaska
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Tuesday, April 7, 2020
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For better elections or worse: Jungle primary decision now awaits Supreme Court ruling

APPEARS JUDGE BOLGER WILL BE DECIDING VOTE ON SPLIT DECISION

Two attorneys — one defending a decision by the Division of Elections and another for Alaskans for Better Elections were in front of the Alaska Supreme Court on Wednesday.

It’s not clear who had the upper hand — the Division of Elections director or the Outside-funded group trying to overturn Alaska’s election laws.

The case involves a proposed ballot question that would eliminate political parties in the primary, create ranked-choice voting, and prohibit campaign money from groups like the Republican National Committee or Democratic National Committee.

Signatures have been gathered and turned in, and all that stands between this ballot question and the next general election is the decision of the Supreme Court about whether or not the ballot question contains too many items in it. The Division of Elections says there are too many things in the ballot question.

The decision could be weeks away, but the arguments have now been laid before the Alaska Supreme Court.

State attorney Laura Fox attempted to convince the judges that there are three distinct aspects to the “Better Elections” ballot initiative and that it violates the “single subject rule” that applies to initiatives.

In the legislative process, she argued, there are public hearings, amendments, and open deliberation for policy changes. The Legislature purposefully set forth legal sideboards on ballot initiatives because there is no process for improving them once they are in front of the people for a vote — it’s just yes or no vote, and it can make for chaotic law.

Voters have a right to weigh each of these questions separately, she said:

  • Should there only be one ballot in the primary, so that everyone can vote for whichever candidate they want, rather than a ballot for Republicans (which has a closed primary) and a ballot for “everyone else,” since Democrats don’t have a closed primary? The initiative would replace partisan primaries with open top-four primaries for state executive, state legislative, and congressional races.
  • Should the voting system be changed to a ranked-choice method, as is used in Maine, where the calculation of the final winner is through a complicated process of elimination? The initiative would establish this ranked-choice voting for general elections, in which voters would rank the four candidates that came out on top in the primaries.
  • Should “dark money” be prohibited in Alaska elections, and should further disclosures be required for where campaign funds come from?

Scott Kendall, attorney for Alaskans for Better Elections, argued that all three items are intertwined and none can not stand alone because that was not the sponsors’ intent.

He noted that other ballot measures offered by citizens contain related items, citing the ballot initiative to legalize commercial sale of marijuana in Alaska, which also contained a regulatory framework, an enforcement board, and an associated tax framework.

The judges appeared to fall into two mindsets: Justice Craig Stowers was the most verbally skeptical of Kendall’s arguments, saying that revising an entire election system is something of another magnitude from setting out a framework for marijuana sales.

Justice Susan Carney also appeared unimpressed with Kendall’s argument.

Speaking to the marijuana initiative comparison, Carney said, “But those are all components of what I think Ms. Fox referred to as a common program. As Justice Stowers said earlier, you could do away with the primary system as one part suggests, without ever doing anything to the general election, or without ever doing anything to disclosure laws.

Kendall argued that the state could have retail sales of marijuana without having a tax: “And yet the people took a comprehensive look at this and said ‘let’s strike a balance…'” and they enacted a multi-point program.

But Carney argued again that the items in the marijuana initiative were to “give practical effect to sea change in the law. You can’t just say suddenly starting tomorrow, ‘It’s legal, I hope it works out.'”

Justice Stower wondered why the three items could not be split up into three different questions on the ballot.

“I understand your arguments and the policies behind each one of these provisions,” he told Kendall. “But it seems to me they could be targeting different demographics or different populations. There may be number of people who would agree with your dark money argument, but they feel really strongly about the two-party primary system that we have. And so if they were split they may very well enact one of the provisions, but if they were grouped together they may end up torpedoeing the provision they would like to approve because they disagree with one of the others.”

It would make more sense to divide them up because they are really addressing discrete problems, he said.

Kendall said ballot measure decisions must be liberally construed, he said.

“None of that would trump the language of the Constitution,” Stowers added.

Kendall later argued that a decision to do so would be adverse to his clients and would fundamentally change how citizens can engage in direct legislation in the future, Stowers took issue with him:

“I don’t know if I agree with that,” Stowers said. “Under the State’s theory, the voters are theoretically going to get an opportunity to vote on all of the proposals, separately. They still get to vote. but they get to express their views on whether any one or all of them should pass.”

Kendall argued that breaking the ballot measure into three would have “an unbelievably deleterious effect on the people’s ability to enact these proposals.” And he said that to split them up would be a punitive decision since signatures have already been gathered.

“Who says it’s punitive?” Stowers shot back. “Or punitive retroactively invalidate? What would be punitive about it?”

Kendall responded it would be punitive to take a measure that under the current single-subject rule is an acceptable package, and pull it apart, leading to voter confusion and the inability of the ballot sponsors to properly advocate for their initiative.

“They are handicapped in their ability to communicate with voters,” Kendall explained.

“I was taking issue with the use of the word punitive,” Stowers retorted. “If we collectively decide that the Constitution requires that, that’s not punitive, that’s just a declaration of law under the Constitution.”

Kendall said that to break the ballot initiative into three ballot items would put the sponsors at a disadvantage and would inconvenience the sponsors.

Stower also shot that argument down, too: “I thought this was all about the peoples’ choice,” he said.

Justice Carney also didn’t care for that line of argument:

“Your argument seems to set up some free-standing rights for sponsors. I’m not persuaded.” If sponsors don’t do it right, that package doesn’t get voted on. There are not special rights for sponsors.

Peter Maassen and Daniel Winfree appeared to agree with Kendall and Winfree indicated that if bond measures can have multiple capital projects in them, so should ballot initiatives. He seemed to think that initiatives should be treated in the same way as legislative bills. Winfree was the most vocal supporter of Kendall’s position, at times actually arguing it for him, adding points he felt were important — points that Kendall had not even raised.

The only judge who seemed on the fence was Chief Justice Joel Bolger, who said little during the court hearing. It appears it will be a 3-2 decision, but the ruling could be many weeks away.

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Suzanne Downing had careers in business and journalism before serving as the Director of Faith and Community-based Initiatives for Florida Gov. Jeb Bush and returning to Alaska to serve as speechwriter for Gov. Sean Parnell. Born on the Oregon coast, she moved to Alaska in 1969.

Latest comments

  • Appeal it to the United States supreme Court if it involves a point on federal law.

  • Kendall said it all when he said it would inconvenience the sponsors. It is not about outside sponsors it is about we the people (Alaskans) not outside influences

  • Kendall is a Governor Walker stooge. Echos from a failed Administration that is searching for afterwards validity, and any kind of meaning whatsoever. Kendall is the last idiot standing. Too late! Alaska has moved on with Governor Dunleavy. Justice Susan Carney is brilliant and should be the Chief Justice. She has a well-reasoned approach to the law. Bolger is a simple, political hack. That, is so apparent now. The Lefties are praying that Bolger gives them one last chance.

  • If the Supreme Court buys into the arguments of the proponents of this initiative, I will explore bringing an action in federal court to enjoin it. This Frankenstein proposal does not enable democracy, it perverts it. This is something that ANTIFA would design. Or George Soros — which may be actually true.

    • Both George Soros and his son Jonathan are funding ranked-choice ballot measures in a number of states and municipalities.

  • Smart money tells you that Chief Justice Bolger will rule in favor of the outside mostly non Alaskan group and let the vote take place. Even though there are multi facets that go into the initiative which on it’s face makes the initiative flawed.
    Regrettably Bolger has his own ethical flaws which are brightly on display in how he is handling his bias against Gov Dunleavy in determining whether the recall vote should go forward. He has an affirmative duty to recuse himself because of his actual bias and comments which are on display. Instead he places the burden on the Governor and his lawyer who is an applicant for the position on the Supreme Court and whose application will likely be voted upon by Bolger in the near future. Think she’s looking forward in claiming Bolger cannot be fair towards her client? Right!

  • Good analysis, AK First, but you are missing this:
    .
    The real onus is not placed on the State’s counsel, but rather on Bolger. Bolger is the one boxed-in, not Paton-Walsh. Bolger has two two ethical duties which must not be breached:
    1). To disqualify himself if he has commented extra-judicially on a matter that has come before the Court;
    2). To give fair and unbiased consideration to an SCt applicant even if he has a personal issue with that applicant. Otherwise, he should also disqualify himself from the Judicial Council when making a choice on Stower’s replacement
    .
    Anything less from Bolger on these two matters would put his fitness as a Chief Justice into extreme question and make him a candidate for disciplinary action by the ABA. And of course, he would face public censure and rebuke.

  • Judie, I fully agree with you that Bolger has the burden here. and in a perfect world he would shoulder it. But his re-election is what, 6 years from now? Anything that he does today about these matter will be soon forgotten and he will
    in all likelihood be re-elected. The justices are almost untouchable. And they know it.

    • Good comments above by both writers.
      Unfortunately, the SCt Chief Justice is making it perfectly clear that the court is just another political animal and that true justice does not get served because it is humanly flawed…..even in black robes.

  • It doesn’t appear that the Court is considering throwing the Ballot Initiative out, only whether it should stand as one Measure or three separate questions. To me, it looks like three separate issues. The Court could be justified in throwing the whole initiative out.

    Ranked Choice Voting allows voters to choose third party candidates without the spoiler effect. Claims that voters must vote for more than one, or that it is “too complicated”, don’t hold up. Nor does it end any political party as some have claimed. If you have a second or third choice, that choice will count, if your first choice is not one of the top two vote getters.

    • Ranked-choice voting effectively disenfranchises us.
      .
      If one has no problem about candidates with marginal voter support winning elections, why vote?
      .
      If government has no problem about candidates with marginal voter support winning elections, our democracy has a problem.
      .
      Minimal voter turnout, corrupted state elections (recall the Great Alaska LeDoux Vote Experiment) are already problematic.
      .
      Add the recognized effect of ballot exhaustion and, if current events are an indication, what passes for state government might be well on its way to becoming one big, impenetrable Cosa Nostra.
      .
      One big RICO enterprise, in other words… what then shall we do about it?

  • The people promoting this ‘better elections initiative’ are either deluding themselves or deceiving the public.
    Go to their website. You will notice it is clearly presented to accomplish three separate things: 1. “End “Dark Money” in Alaska Elections”; 2. “Open our Primaries to All Alaskan Voters”; and 3. “Form Ranked Choice Voting Elections”.

    Whatever the merits of each individual proposal, they are separate proposals.

    But don’t take my word for it, take a look at the initiative language itself.

    *Sec. 73. [Yes, there are actually 74 sections of the initiative – it’s 26 pages long.] The provisions of this act are independent and severable. If any provision of this act, or the applicability of any provision to any person or circumstance, shall be held to be invalid by a court of competent jurisdiction, the remainder of this act shall not be affected and shall be given effect to the fullest extent possible.

    End of discussion. It shouldn’t take the court more than a few days to figure that – by their own admission – this initiative violates the separate subject rule.

    BTW: The group promoting the initiative is funded by over $750,000,000 in ‘dark money’ contributed from various ‘not-for-profit’ foundations. (According to their APOC website.)

    • Good analysis , Mike, and congratulations on the appointment.

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