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.
