Update: The Department of Law says the state plans to appeal the case to the Alaska Supreme Court and request a freeze on issuing signature booklets while that case is resolved.
Today marked yet another legal loss for Attorney General Kevin Clarkson.
Anchorage Superior Court Judge Yvonne Lamoureux issued a summary judgement order that thoroughly rejects Clarkson’s legal reasoning for barring the Alaska’s Better Elections initiative from advancing toward the 2020 ballot. Lamoureux’s order finds the initiative meets the legal grounds for an initiative and ruled that the Division of Elections must issue the group the booklets so it can begin the signature-gathering process.
The initiative seeks to end the state’s party primaries in favor of a nonpartisan primary, implement a ranked-choice voting process for the general election and create tougher campaign finance disclosure laws. Lt. Gov. Kevin Meyer had rejected the initiative based on legal advice from Clarkson, who argued that the initiative violated the state’s rule that the content of legislation and initiatives fall under a single subject.
The state rejected the initiative, inviting its sponsors to voluntarily pare back the bill.
The backers argued instead that Clarkson’s application of the single-subject rule was wrong and that the provisions all fell under the subject of election reform.
Lamoureux’s order agrees with the initiative backers.
“Here the provisions of (Alaska’s Better Elections initiative) satisfy the test of relating to a single subject matter: election reform. Whether the provisions could have been written or offered as three separate initiatives is not the question before the court or the standard to be applied to this case. Similarly, whether it is wise or unwise to adopt the proposed initiative is not the question before the court,” wrote Lamoureux. “The sole legal question is whether the proposed initiative embraces one general subject. The answer is yes.”
The 12-page order delves into the history and thinking behind the single-subject rule, noting that precedent requires it to be interpreted broadly.
“There is longstanding precedent that courts should construe the single-subject rule provision ‘with considerable breadth,’” she wrote, noting that the single-subject rule means legislation should align with a “general idea.”
She noted that the only time that the single-subject rule was used to effectively kill an initiative was in Croft v. Parnell, where an initiative sought to implement both an oil production tax and a new “clean elections” program. She disputed the state’s position that that case reinterpreted the single-subject rule.
“The court did not announce a new test to be applied when reviewing challenges to initiatives based on the single-subject rule. Instead, for the first time, the court concluded that there was a violation of the single-subject rule,” Lamoureux wrote. “But the court applied the same test that has been applied in seven prior cases addressing the single-subject rule. In other words, the outcome was different from the past cases, but the analysis remained the same.”
She noted that the single-subject rule applies both to initiatives and to legislation written and passed by the Alaska Legislature, where legislation like this year’s crime legislation House Bill 49 dealt with the criminal justice system broadly from sentencing to parole and recidivism.
The state did not raise single-subject concerns about that legislation.
The order clears the way for the group to begin the process of collecting the 28,501 signatures needed to get the initiative on the 2020 ballot. It must turn the signatures into the Division of Elections before the start of the legislative session on Jan. 21, 2020 to meet that deadline.
Things could get tight if the state chooses to appeal the case to the Alaska Supreme Court.
Why it matters
Judge Lamoureux pointed out that the single-subject rule is meant to be applied the same way to both voter-created initiatives and Legislature-created legislation. With that and multi-faceted bills like any criminal justice legislation in mind, it’s absurd that this was ever an issue raised by the state in the first place.
In that light, the state’s opposition based on the single-subject grounds comes across as either a deeply misinformed reading of the law or a cynical attempt to stymie a legal initiative. Either should raise concerns for the fairness of Alaska’s elections.
Initiative backers are under a tight timeline to get the signatures necessary for the initiative to reach the 2020 ballot. They have to get the signatures turned in before the Alaska Legislature convenes in January, and this legal challenge has taken the better part of two months to resolve.