Justices hear arguments in Senate lawsuit

State attorney, Trust the People address Alaska Supreme Court in Senate vacancy case

Posted: Thursday, July 22, 2004

ANCHORAGE - An initiative changing how U.S. Senate vacancies are filled should not appear on the general election ballot because a new state law has the same effect, an assistant attorney general told the Alaska Supreme Court.

Not so, said attorneys for initiative sponsors Trust the People. They told justices Wednesday that the law ignores the main thrust of the initiative - repealing the governor's ability to make a temporary Senate appointment, which gives appointees the power of incumbency when they stand for their first election.

The hearing was the latest fallout from Gov. Frank Murkowski's appointment of his daughter, Lisa Murkowski, to fill his own unexpired U.S. Senate term after he won the gubernatorial election in 2002.

Charges of nepotism are expected to be a factor in Sen. Lisa Murkowski's Republican primary race Aug. 24 and, if she prevails, in the general election Nov. 2. The issue will be underscored if the initiative appears on the ballot.

Alaska law in 2002 called for the governor to fill a Senate seat if less than two and a half years remained in the departing senator's term. However, the Republican-dominated Legislature that spring changed election laws so that outgoing Gov. Tony Knowles, a Democrat, would not be able to fill a Senate vacancy.

Legislators instead voted to have the newly elected governor fill a vacancy. When Frank Murkowski was elected that November, he appointed Lisa Murkowski to the seat.

State Reps. Eric Croft, Harry Crawford and David Guttenberg, all Democrats, in response formed Trust the People to sponsor the ballot initiative. If approved, the initiative would repeal the law allowing the governor to temporarily fill vacancies. They instead would be filled by special election, which could occur within 60 to 90 days.

The law approved by the Legislature this year, after Trust the People had collected enough signatures to put its measure on the ballot, calls for the same special election but allows the governor to make a temporary Senate appointment to fill the 60- to 90-day gap.

That is a substantial difference, said attorney Jeff Feldman.

"The initiative was intended to strip the governor of power to make the appointment," Feldman said.

Assistant Attorney General Joanne Grace said justices should not try to guess the intent of voters when they backed the initiative. Instead, they should look at whether the two measures accomplish the same general purpose by means that are comparable. She said they do.

Instead of waiting up to two and a half years for an election, both measures provide that an election be held within 60 to 90 days. The governor's power would be restricted under both measures.

What the Legislature's version does, Grace said, is allow the governor through a short-term appointment to give Alaska crucial representation in the Senate for what could otherwise be a three-month gap. The court needs to decide whether that short incumbency is powerful enough to keep voters from being able to freely choose who they want in the special election.

"That's clearly an exaggeration of the impact," she said.

Under both measures, people have the same rights to fill the vacancy.

But Feldman said the initiative could have included that language. The measure was exceedingly clear, he said, that the governor's ability to make a Senate appointment, even a short one, should be repealed.

"The purpose of the initiative was not simply to speed up the holding of a special election," Feldman said.

He said there was nothing in the record to support Grace's contention that short-term incumbency carries little power.

He likened the situation to proposing an initiative banning all telemarketing calls, and having the Legislature pass a law banning all calls except those made between the hours of 6 and 10 p.m.

"Some is not the same as none," Feldman said. "The people say they want none. None is different."

Supreme Court justices will now deliberate.

Croft said after the hearing that the justices' decision will speak loudly regarding the power of the administration and the Legislature to keep initiatives off the ballot.

"We're either going to take a big step forward or a big step backward on people's initiative rights," Croft said.

Lt. Gov. Loren Leman, who oversees the state elections division, decided last month to keep the initiative off the ballot. He said he hoped his decision would be affirmed.

"It's not identical," he said of the law. "But it substantially similar."

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