Legislative changes would fix write-in problems, shake up partisan primary system

Posted: Sunday, January 23, 2011

The 2010 election cycle in Alaska was unlike anything ever seen before. Things in both the primary and general elections directly resulted from the way Alaska statutes governing elections are written, from the outcome of the primary election to the ultimate determination of general election results. Ambiguity in the Alaska Elections Act is a bad thing, creating controversy where it need not exist.

Rep. Tammie Wilson, R-North Pole, has introduced House Bill 70, and Sens. Joe Thomas (D-Fairbanks), Hollis French (D-Anchorage), Linda Menard (R-Wasilla), and Bill Wielechowski (D-Anchorage) Senate Bill 31, to add the following mandate to the list of rules about how ballots are counted:

“In counting votes for a write-in candidate, the election board shall disregard any abbreviation, misspelling, or other minor variation in the form of the name of a candidate if the intention of the voter can be ascertained.”

This language follows what the Alaska Supreme Court has set as a fair and just standard for counting Alaskans’ votes, erring on a voter’s side when he or she has been unclear, but not so unclear as to have one’s vote not count at all. This is inherently fair and reasonable, and should become law. I haven’t heard what the total cost for the Division of Elections’ work in conducting the write-in count was yet, but it will be a large sum of money, one that had to be spent because the ballots had to be counted. While any candidate had the right to challenge the legality and integrity of the methods put forward by the Division of Elections to count write-in ballots, the cost to all parties of litigating that challenge would have been completely unnecessary had the statute been clear. Yes, there was ample general precedent for discerning voter intent, but case law did not provide direct guidance on spelling a write-in candidate’s name.

SB 31 will be heard Tuesday morning in the Senate State Affairs Committee, after which it will move to the Judiciary Committee. The positive fiscal impact of this bill may not be directly considered at any of these hearings, but it nevertheless one more reason it should pass. Clearing up this issue will save a lot of time and money. It is also an issue on which both sides of the aisle appear to agree, so I expect quick passage.

A much more complex and far-reaching piece of elections legislation is HB 77, introduced by Reps. Max Gruenberg (D-Anchorage), Sharon Cissna (D-Anchorage), and Scott Kawasaki (D-Fairbanks). HB 77 would make many significant changes to many components of the election laws, as evidenced by a simple reading of the title:

“An Act establishing a top two nonpartisan blanket primary election system for elective state executive and state and national legislative offices; changing appointment procedures relating to precinct watchers and members of precinct election boards election district absentee and questioned ballot counting boards, and the Alaska Public Offices Commission; requiring certain written notices to appear in election pamphlets and polling places; relating to declarations of candidacy and letters of intent; and amending the definition of ‘political party.’”

HB 77 is 21 pages long, and will require much explanation as it moves through the legislative process. Easily the biggest change HB 77 would make — if ever enacted — would be the elimination of the closed Republican primary and a creation of a single, non-partisan top-two winner primary election. Right now the Division of Elections by law is to create a separate ballot for each political party but only the Republican party has this done. All other candidates are on a single other ballot, and members of other parties can only vote on this ballot. HB 77 would not only place Republicans, Democrats, Greens, Libertarians, and others on the same ballot, but would advance only the first- and second-place winners regardless of party. Two members of the same party could move forward to the general election. This is a vast change from our current system as there would never be more than two candidates in the general election (unless, of course, there were write-in candidates) and because the primary election would no longer determine the nominee of a political party.

Last August’s Republican primary election turned out the way it did in no small part because it was a closed primary, and many voters were not able to vote for the candidate who ultimately won the U.S. Senate race. It would be possible to return to a unified primary election but not eliminate the process of moving a candidate from each party on to the general. It will be interesting to see how HB 77’s more far-reaching approach is received by the Legislature, in addition to the myriad of other changes it would make.

If we don’t fix elections law problems that exist, we have no one but ourselves to blame when costly problems flare up in the future. I am grateful that, while the Legislature is busy writing budgets and considering a universe of other issues, attention is being paid to crucial elections issues too.

• Brown is an attorney who lives in Juneau.

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