Legislature(2009 - 2010)BELTZ 105 (TSBldg)

02/19/2010 01:30 PM Senate JUDICIARY

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Heard & Held
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Heard & Held
           SB  92-U.S. PRESIDENTIAL ELECTION COMPACT                                                                        
2:15:16 PM                                                                                                                    
CHAIR FRENCH announced the consideration of SB 92.                                                                              
2:15:37 PM                                                                                                                    
SENATOR DAVIS, sponsor of SB 92, said her intern would present                                                                  
the bill.                                                                                                                       
QUINN KENDALL, Intern to Senator Davis, read the following                                                                      
sponsor statement for SB 92 into the record:                                                                                    
     Under  the National  Popular  Vote Interstate  Compact,                                                                    
     electoral votes, which are based  on the number of U.S.                                                                    
     representatives and U.S. senators  in each state, would                                                                    
     be  awarded  to  the  national winner,  not  the  state                                                                    
     winner.   The  U.S.   Constitution  gives   the  states                                                                    
     exclusive  and  plenary  control  over  the  matter  of                                                                    
     awarding  their  electoral votes.  The  winner-take-all                                                                    
     rule is  not in the  Constitution. The fact  that Maine                                                                    
     and  Nebraska award  electoral  votes by  congressional                                                                    
     district, is a  reminder that an amendment  to the U.S.                                                                    
     Constitution  is not  required  to change  the way  the                                                                    
     president is elected.                                                                                                      
     As of  January 2010,  this interstate compact  has been                                                                    
     joined by  Hawaii, Illinois, Maryland, New  Jersey, and                                                                    
     Washington.  Their  61  electoral votes  amount  to  23                                                                    
     percent  of the  270 votes  needed for  the compact  to                                                                    
     take effect.  The bill has  also passed in one  or both                                                                    
     houses  in  many  states  and  has  continued  to  gain                                                                    
     support nationally.                                                                                                        
     Because   of  the   current  winner-take-all   rule,  a                                                                    
     candidate  can,  and  has won  the  presidency  without                                                                    
     winning  the most  popular votes  nationwide. This  has                                                                    
     occurred  in   4  of   the  nation's   56  presidential                                                                    
     elections   (and   1   in  7   of   the   non-landslide                                                                    
     elections).In 2004, a shift of  fewer than 60,000 votes                                                                    
     in Ohio would have  defeated President Bush despite his                                                                    
     nationwide lead of 3.5 million votes.                                                                                      
     Another  shortcoming  of  the winner-take-all  rule  is                                                                    
     that presidential  candidates have  no reason  to poll,                                                                    
     visit, advertise  or organize in states  where they are                                                                    
     comfortably  ahead  or   hopelessly  behind.  In  2008,                                                                    
     candidates  concentrated   over  two-thirds   of  their                                                                    
     campaign  visits  and  ad money  in  just  six  closely                                                                    
     divided "battleground"  states. A  total of  98 percent                                                                    
     went to just 15 states.  In other words, voters in two-                                                                    
     thirds  of the  states were  essentially spectators  to                                                                    
     the election.                                                                                                              
     Under  the  National  Popular Vote  Interstate  Compact                                                                    
     bill, all the electoral  votes from the enacting states                                                                    
     would  be  awarded,  as a  bloc,  to  the  presidential                                                                    
     candidate who  receives the most  popular votes  in all                                                                    
     50  states  and Washington  D.C.  The  bill would  take                                                                    
     effect only  when enacted by  possessing a  majority of                                                                    
     the electoral  votes - that is,  enough electoral votes                                                                    
     to elect a president (270 of 538).                                                                                         
2:19:14 PM                                                                                                                    
MR.  KENDALL  said  that  enacting   the  National  Popular  Vote                                                               
Interstate  Compact will  increase political  efficacy and  civic                                                               
engagement in Alaska and throughout the U.S.                                                                                    
CHAIR FRENCH posed a hypothetical  situation to show that if just                                                               
270 electoral votes  were committed to the  National Popular Vote                                                               
system,  a candidate  could receive  a  clear electoral  majority                                                               
despite the fact that within the  states that opted for NPV there                                                               
was an overwhelming majority for  the other candidate. Some folks                                                               
are likely to comment on this possibility, he said.                                                                             
2:22:28 PM                                                                                                                    
TRENT  ENGLAND,   Director,  Save   our  States   (SOS)  Project,                                                               
Washington  State,  said  SOS  is  dedicated  to  protecting  the                                                               
institutions  of  federalism,  one  of  which  is  the  Electoral                                                               
College.  He  relayed  that he  often  analogizes  the  Electoral                                                               
College  to the  keel on  a sailboat.  A self-appointed  nautical                                                               
reformer  may  decide that  the  boat  would function  very  well                                                               
without a keel.  That would only happen until the  wind blows, he                                                               
said. The Electoral  College does two important things;  it has a                                                               
nationalizing  and  unifying affect  on  politics  and it  has  a                                                               
moderating affect.                                                                                                              
MR.  ENGLAND  pointed  out  that   all  credible  candidates  and                                                               
political  parties start  campaigning  in the  states where  they                                                               
have significant  support and  later focus  on the  swing states.                                                               
NPV  considers this  a problem,  but  the reality  is that  swing                                                               
states draw politics in toward  the center for a unifying affect.                                                               
Grover  Cleveland  learned about  the  moderating  affect of  the                                                               
Electoral College in  1888 when he won the  most votes nationwide                                                               
and lost the  presidency. The NPV would claim he  became a poster                                                               
child for  how terrible  the Electoral College  is, but  the 1884                                                               
vote was based on intense  regional popularity rather than having                                                               
a broad national coalition. In  the four years that Mr. Cleveland                                                               
was out  of the  presidency he  rebuilt the  democratic coalition                                                               
and  then recaptured  the presidency  in 1892,  winning both  the                                                               
national popular  vote and  the electoral  vote. If  the national                                                               
popular  vote system  had  been  in existence  at  the time,  the                                                               
Democratic Party might  never again have become  a national party                                                               
or the  civil rights coalition that  it did. That is  all owed to                                                               
the Electoral College process, he stated.                                                                                       
2:29:47 PM                                                                                                                    
JOHN KOZA,  Chair, National Popular  Vote, point out  that voters                                                               
in two-thirds of  the states are totally  ignored by presidential                                                               
candidates. Candidates spend  98 percent of their  time and money                                                               
in just  15 states.  States like Alaska  are simply  ignored when                                                               
presidential candidates or a  sitting president considers issues,                                                               
he said.                                                                                                                        
2:30:43 PM                                                                                                                    
ROBERT  M.  HARDAWAY, Professor  of  Law,  University of  Denver,                                                               
Sturm College  of Law, said  he is  the author of  "The Electoral                                                               
College   and  the   Constitution:   The   Case  for   Preserving                                                               
Federalism." He said his comments  would center on the particular                                                               
problems with "Koza  scheme" and whether or not it's  a good idea                                                               
to do  away with  the Electoral College.  He asked  the following                                                               
questions: about what would                                                                                                     
   1. What would happen under the "Koza scheme" if a recount was                                                                
      required, but just a handful of states engaged in the                                                                     
   2. Who would decide what the national popular vote is and what                                                               
      would happen if a national official and a state officer                                                                   
      disagreed on the vote tally?                                                                                              
   3. Would Alaska be bound to accept the popular vote tallies                                                                  
      from states whose voting standards violate Alaska public                                                                  
   4. Which state officer would be empowered to overrule the will                                                               
      the voters of Alaska and instead allocate votes to the                                                                    
      other candidate?                                                                                                          
   5. What would happen if some states decided to withdraw from                                                                 
      the [NPV]?                                                                                                                
   6. What provision is there in the "Koza scheme" for a runoff                                                                 
   7. If "Koza scheme" supporters want to undermine federalism,                                                                 
      wouldn't the first step be to abolish the U.S. Senate since                                                               
      it is the more violative of the "one man one vote"                                                                        
   8. Would the Koza supporters claim that the British system was                                                               
MR.  HARDAWAY cited  the  final committee  vote  in the  Colorado                                                               
Legislature and noted that once  these problems were pointed out,                                                               
Colorado  did not  adopt  the National  Popular  Vote system.  He                                                               
further pointed out that national  recounts would be particularly                                                               
problematic  because all  50 states  would  have to  participate.                                                               
"Multiply the problems  we had in Florida by 50  times," he said.                                                               
Minorities have  testified against  NPV because it  dilutes their                                                               
voting power, particularly in swing states.                                                                                     
MR. HARDAWAY  concluded that  the most  essential feature  of the                                                               
Electoral College is that it requires broad-based support.                                                                      
2:37:34 PM                                                                                                                    
JAMES GILLES, representing himself,  Bird Creek, said he believes                                                               
that  the National  Popular Vote  is  a good  way to  go. It's  a                                                               
system that would finally help Alaska.                                                                                          
2:38:39 PM                                                                                                                    
JOSEPH F.  ZIMMERMAN, Professor of Science,  Rockefeller College,                                                               
State University  of New  York at Albany,  relayed that  when the                                                               
Electoral College  was established,  the assumption was  that the                                                               
electives in  each state would  vote for the best  candidate, but                                                               
that's not  the way it has  worked. This is a  nation of majority                                                               
rule  yet   voters  are   not  allowed   to  vote   directly  for                                                               
presidential and vice-presidential  electives. Furthermore, major                                                               
candidates only campaign actively  in the so-called swing states.                                                               
These  are   democratic  deficits.  Former  U.S.   Justice  Felix                                                               
Frankfurter  and James  Landis wrote  that the  U.S. Constitution                                                               
encourages   creativeness  "to   devise   a   variety  of   legal                                                               
alternatives  to  cope  with  the  diverse  forms  on  interstate                                                               
interests." The National Popular Vote  proposal is a creative way                                                               
to ensure  that this nation  has majority  rule when it  comes to                                                               
the selection of  the president and vice president  of the United                                                               
States, he stated.                                                                                                              
MR. ZIMMERMAN  noted that  he is  the author  of about  40 books,                                                               
many on federalism and several on interstate compacts.                                                                          
2:42:21 PM                                                                                                                    
DEBBIE  JOSLIN, President,  Eagle Forum  Alaska, Delta  Junction,                                                               
said that  as a  patriotic Alaska  she opposes  SB 92  because it                                                               
would make the state irrelevant  in the election of the president                                                               
and vice  president. She  recognizes that  Alaska has  just three                                                               
electoral votes,  but they have  far greater influence  than they                                                               
would under the National Popular Vote system.                                                                                   
2:44:30 PM                                                                                                                    
BARRY F. FADEM, President, National  Popular Vote, said he enjoys                                                               
going  state to  state having  discourse  on this  issue, but  he                                                               
finds it  somewhat offensive for  Professor Hardaway to  refer to                                                               
this proposal  as the  "Koza scheme." He  noted that  some people                                                               
have been  working on this  project for  up to four  years. Also,                                                               
the  book he  co-authored on  the subject  has forwards  by three                                                               
former congressmen and a former senator  so he would hope that it                                                               
would rise  above the level  of a  scheme. He further  noted that                                                               
the  book  deals   with  much  of  the   misinformation  that  is                                                               
circulating about the NPV proposal.                                                                                             
CHAIR FRENCH asked him to address  the question of whether or not                                                               
a national recount might be necessary.                                                                                          
MR. FADEM  said that under the  NPV system recounts would  be far                                                               
less  likely than  under  the current  system.  It's the  current                                                               
system that  causes the  crises that result  when there's  a very                                                               
close count  in just one  state as in  Florida in 2004.  He noted                                                               
that in the last 56  presidential elections, just five were close                                                               
enough that legal  challenges were brought. He  reported that the                                                               
Washington  D.C.  based  organization called  Fair  Vote  studied                                                               
7,645 statewide  elections and  found that  the probability  of a                                                               
recount was one every 332  elections. Using those statistics, the                                                               
chances  of a  recount occurring  under NPV  would be  once every                                                               
1,328 years.  But what's more  important, he said, is  that under                                                               
the  current system  there are  literally  51 separate  elections                                                               
each time there's a national election.                                                                                          
2:49:00 PM                                                                                                                    
CHAIR FRENCH asked  him to respond to the  argument that changing                                                               
to  the  NPV  system  would  require an  amendment  to  the  U.S.                                                               
MR. FADEM  replied the founding  Fathers gave  state legislatures                                                               
the right  to determine how  to award  electoral votes so  it's a                                                               
state's rights issue. If a  state feels that the president should                                                               
be elected  by the  NPV, it has  the right to  do that.  He noted                                                               
that 70  percent of  the 800  some voters  polled in  Alaska said                                                               
they favored  the National  Popular Vote. He  opined that  it's a                                                               
landslide if 70 percent of voters agree on anything today.                                                                      
2:51:22 PM                                                                                                                    
SENATOR COGHILL asked him to read the poll question.                                                                            
MR. FADEM  said the question asked,  "How do you think  we should                                                               
elect  the president?  Should it  be the  candidate who  gets the                                                               
most  votes in  all 50  states or  the current  Electoral College                                                               
CHAIR FRENCH commented that he  almost asked each witness if they                                                               
believe  that  the  candidate  with  the  most  votes  should  be                                                               
elected,  but it  seems rather  unfair because  who would  oppose                                                               
SENATOR  COGHILL remarked  that  he thinks  people  might have  a                                                               
different response if  they understand that the  majority vote of                                                               
the nation might take their state's votes.                                                                                      
CHAIR FRENCH said he doesn't disagree.                                                                                          
MR. FADEM  said that a recent  focus group asked if  whoever gets                                                               
the  most votes  in all  50 states  should become  president. The                                                               
answer  was,  "Well,  duh;  it's   the  American  way,  it's  the                                                               
democratic system."                                                                                                             
2:53:39 PM                                                                                                                    
CHAIR FRENCH  asked how many  different state compacts  there are                                                               
since  the issue  is whether  or not  this can  be done  by state                                                               
MR.  FADEM replied  there are  literally thousands;  it's a  very                                                               
common vehicle for states to  use when they agree upon something.                                                               
He knows that every state is in  at least one compact with all 50                                                               
states.  The  issues  include  environmental,  juvenile  justice,                                                               
education, and child support.                                                                                                   
MR.  FADEM  concluded  saying  the  states  that  have  very  few                                                               
electoral  votes are  the poster  child for  how bad  the current                                                               
system is; that's why Hawaii was  one of the first states to join                                                               
the compact. They understood that,  just like Alaska, their votes                                                               
as a non-battleground state do not count.                                                                                       
2:55:48 PM                                                                                                                    
TARA  ROSS,  representing herself,  said  she  is the  author  of                                                               
"Enlightened Democracy: The Case  for the Electoral College." The                                                               
NPV proposal  asks states like  Alaska to give their  electors to                                                               
the winner  of the national  popular vote rather than  the winner                                                               
on their own state's vote.  This plan would practically eliminate                                                               
the  Electoral  College,  which  would   do  more  harm  than  is                                                               
generally appreciated. She noted  that she outlined her reasoning                                                               
in written testimony she submitted.                                                                                             
MS.  ROSS  expressed  the view  that  eliminating  the  Electoral                                                               
College  by   implementing  SB  92  carries   special  logistical                                                               
dangers. She  supports the Electoral College  but if it is  to be                                                               
eliminated  it   should  be   done  through   the  constitutional                                                               
amendment  process.  The  compact  contemplated by  SB  92  would                                                               
require  participating  states to  award  their  electors to  the                                                               
candidate winning the largest National  Popular Vote total. Under                                                               
this scheme, Alaska  could be forced to commit its  electors to a                                                               
candidate  who   was  not   on  the   ballot.  There   are  other                                                               
inconsistencies  among states  ballots that  could skew  election                                                               
results. For example,  some states allow felons  to vote, whereas                                                               
Alaska  does  not.  Inevitably  Alaska would  have  to  abide  by                                                               
national  election results  derived from  policies with  which it                                                               
does not agree.                                                                                                                 
MS.  ROSS  said it's  a  big  assumption that  recounts  wouldn't                                                               
happen  under the  popular vote  scheme as  has been  claimed. If                                                               
there were  recounts, huge problems  would result because  of the                                                               
differences   in   state   recounting  statutes.   Voters   would                                                               
inevitably  be  disenfranchised  and  there would  be  chaos  and                                                               
litigation each and every election  year. She said she focused on                                                               
the  logistical   problems  because  they  aren't   given  enough                                                               
attention, but  the proposal has philosophical  problems as well.                                                               
She believes  that formally eliminating the  Electoral College in                                                               
any manner would be unhealthy for the country.                                                                                  
3:00:46 PM                                                                                                                    
SENATOR  WIELECHOWSKI  asked  if   under  the  current  system  a                                                               
candidate could win with just 15 percent of the nationwide vote.                                                                
MS. ROSS  replied she doesn't  see how that could  happen because                                                               
of the  current, strong two-party system,  which forces political                                                               
parties and candidates to compromise.  She noted that a professor                                                               
once  said that  nobody  gets their  first-choice candidate,  but                                                               
lots of people get their second choice because presidential                                                                     
candidates have to build concurrent majorities to win.                                                                          
SENATOR WIELECHOWSKI said it's also the case that under the                                                                     
current system a candidate who is not on the ballot in Alaska                                                                   
could win.                                                                                                                      
MS. ROSS disagreed; the case today is that Alaska's three                                                                       
electorates will cast their votes for whomever qualifies for the                                                                
CHAIR FRENCH announced he would hold SB 92 for a future hearing.                                                                

Document Name Date/Time Subjects
SB_257_Sponsor_Statement.pdf SFIN 3/12/2010 9:00:00 AM
SJUD 2/19/2010 1:30:00 PM
SB 257
SB 257 Juneau DistCourt LOS.pdf SFIN 3/12/2010 9:00:00 AM
SJUD 2/19/2010 1:30:00 PM
SB 257
SB257 Letter of Support.pdf SFIN 3/12/2010 9:00:00 AM
SJUD 2/19/2010 1:30:00 PM
SB 257
SB257 Ketchikan Magistrate LOS.pdf SFIN 3/12/2010 9:00:00 AM
SJUD 2/19/2010 1:30:00 PM
SB 257
SB257 JYC Bd LOS.doc SFIN 3/12/2010 9:00:00 AM
SJUD 2/19/2010 1:30:00 PM
SB 257
SB92 Sponsor Statement.pdf SJUD 2/19/2010 1:30:00 PM
SB 92
SB 92 Sectional.pdf SJUD 2/19/2010 1:30:00 PM
SB 92
SB92 Press.pdf SJUD 2/19/2010 1:30:00 PM
SB 92
SB92 Letters of Support.pdf SFIN 3/26/2010 1:30:00 PM
SJUD 2/19/2010 1:30:00 PM
SB 92
Wasilla PD LOS.pdf SFIN 3/12/2010 9:00:00 AM
SJUD 2/19/2010 1:30:00 PM
SB 257