Opponents outline legal concerns with elections initiative, backers say they’re misguided

Alaskans for Better Elections turn in signatures for the election reform initiative on Jan. 9, 2020. (Photo by Matt Buxton/TMS)

Correction: My “I’ve only been covering politics in Alaska for 10 years and not 30” is showing. Thanks to the politico who corrected my incorrect summary of when Alaska’s blanket primary came to an end.

While the potential extinction of political parties in Alaska grabbed our attention from Tuesday’s House State Affairs Committee hearing on the Alaska’s Better Elections Initiative, opponents to the measure also outlined a litany of practical, legal and constitutional concerns with the measure.

The backers of the measure argued the opponents had a misguided or ‘100 percent false’ reading of the initiative and how it interacts with legal precedent on elections, noting that none of the issues were raised in the legal analysis conducted by the state (which has also not been a fan of the measure).

The Alaska’s Better Elections Initiative proposes to completely redo how Alaska’s elections are run by implementing an open nonpartisan jungle primary system for all state races where the top four vote-getters would advance to the general election. The general election would then be conducted through a ranked-choice ballot system.

It would also implement transparency measures for money given to independent expenditure groups.

There was a load of different issues raised during the hearing, but we’ll focus on a handful that seem to be the biggest underlying legal issues brought by the opponents.

One rank, no vote?

GOP Party Chair Glenn Clary made plenty of claims about the initiative in his testimony against it, arguing that it’s a “communistic” plot funded by conservative’s favorite boogeyman George Soros aimed at driving political parties extinct. But one of his claims was that the initiative’s ranked choice primaries would require voters to rank every candidate if they wanted their votes to count at all.

“Alaskans will lose this right of voting just for the candidate they support if this initiative passes,” he said, referring to a repealed section of the law that says a vote still counts if someone votes for fewer names than there are to be elected to office.

Clary appears to be referencing language that deals with elections where multiple seats are being filled (I can really only think of municipal elections where this would be the case) but he hung up before legislators got to ask him questions. Legislators, instead, asked initiative backers about his claims.

“That’s 100% false. If you want to vote how you normally vote and you want to fill in just that first bubble for the person you support, your vote will count just like it counts today,” said Scott Kendall, the legal counsel to the initiative group, during questions from legislators. “That, in fact, is so clear that even in the ballot summary that was drafted by the Attorney General and his attorneys, that statement appears: ‘If you wish to vote for one candidate, you can.'”

Kendall and other supporters frequently referred to the state’s analysis of the initiative to address the concerns raised by Clary and former Alaska Democratic Party Executive Director Kay Brown. He noted the state had challenged the initiative but only on the grounds that it was overbroad—which was rejected by the Alaska Supreme Court—and not that it had violated any constitutional issues.

The constitutional issues

Alaska has operated under an open primary system longer than it has used the current partisan primary system, using the blanket primary system from statehood to 2000 from 1947 to 1960, from 1967 to 1992 and in 1996 and 1998. The practice came to an end for good in 2000 when California Democratic Party v. Jones reached the U.S. Supreme Court and struck down the concept of blanket primaries because it essentially chose each party’s nominees.

That court ruling was referenced on Tuesday as reason to cast doubt on the jungle primary as proposed in the initiative, but Kendall also pointed out that there’s more recent U.S. Supreme Court rulings on the matter.

Namely, that’s Washington State Grange v. Washington State Republican Party where Justice Clarence Thomas wrote in the majority opinion that the Washington primary system—which is similar to what’s proposed in the Better Elections Initiative—is different than the one struck down in California because it only chooses frontrunners and not a party’s nominees.

“The flaw in this argument is that, unlike the California primary, the I–872 (Washington’s law) primary does not, by its terms, choose parties’ nominees. The essence of nomination—the choice of a party representative—does not occur under I–872. The law never refers to the candidates as nominees of any party, nor does it treat them as such,” he wrote. “To the contrary, the election regulations specifically provide that the primary ‘does not serve to determine the nominees of a political party but serves to winnow the number of candidates to a final list of two for the general election.’”

Electing a governor

Another issue raised is the Alaska Constitution’s clause for electing a governor, which states “The candidate receiving the greatest number of votes shall be governor.”

Both Brown and Clary argued this means the governor couldn’t be elected through the ranked-choice system, arguing that it’s meant to allow the governor to be elected with a plurality of the vote. The ranked-choice system is designed as essentially an instant runoff that ensures whoever’s elected has a majority of the vote.

Kendall argued that a ranked-choice system would still comply with the Alaska Constitution’s vote requirements.

“What the Alaska Constitution says is the governor shall be elected with the greatest number of votes,” he said. “Greatest means what it says, the highest number of votes. Our ballot measure itself says the candidate receiving the greatest number of votes through the final tabulation is the winner. There is no conflict.”

He noted that Maine’s constitution specifically says the governor and legislators can be elected by a plurality but said there’s a world of difference between “plurality” and “greatest number of votes.”

“That’s a very different word with a different meaning. Our constitution has no such restriction and, again, there is no such conflict,” he said, adding, “and no such conflict was raised by the Department of Law or Attorney General Clarkson.”

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