Legislature(2009 - 2010)BELTZ 105 (TSBldg)

02/02/2010 09:00 AM Senate STATE AFFAIRS

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Moved SJR 21 Out of Committee
Moved SB 92 Out of Committee
           SB  92-U.S. PRESIDENTIAL ELECTION COMPACT                                                                        
9:46:36 AM                                                                                                                    
CHAIR MENARD called  the State Affairs Committee  meeting back to                                                               
order at 9:46 and said the  next order of business to come before                                                               
the committee was SB 92.                                                                                                        
QUINN  KENDALL, aide  to Senator  Davis, sponsor  of SB  92, said                                                               
that  under   the  National  Popular  Vote   Interstate  Compact,                                                               
electoral  votes,   which  are   based  on   the  number   of  US                                                               
representatives and US  senators in each state,  would be awarded                                                               
to the  national winner,  not the  state winner.  He said  the US                                                               
Constitution  gives each  state exclusive  control over  awarding                                                               
their electoral  votes; the  winner-take-all rule  is not  in the                                                               
Constitution.  He  pointed  out  that the  states  of  Maine  and                                                               
Nebraska award  electoral votes by congressional  district. As of                                                               
January  2010,   Hawaii,  Illinois,  Maryland,  New   Jersey  and                                                               
Washington  joined this  interstate compact;  their 61  electoral                                                               
votes make  up 23 percent of  the 270 electoral votes  needed for                                                               
the compact to take effect.                                                                                                     
9:49:13 AM                                                                                                                    
MR. KENDALL said the compact has  also passed in the House and/or                                                               
Senate  in  other  states  and has  continued  to  gain  national                                                               
support.  He  explained  that the  current  winner-take-all  rule                                                               
allows  a candidate  to win  the presidency  without winning  the                                                               
most popular  votes nationwide. This has  occurred in 4 of  56 US                                                               
presidential  elections   and  1   in  7  of   the  non-landslide                                                               
elections.  He pointed  out that  a  shift of  fewer than  60,000                                                               
votes  in Ohio  would have  defeated President  Bush despite  his                                                               
nationwide lead  of 3.5 million  votes in 2004. With  the winner-                                                               
take-all rule,  presidential candidates  have no reason  to poll,                                                               
visit, advertise or  organize in states where they  are far ahead                                                               
or  behind. He  explained  that candidates  concentrated over  66                                                               
percent  of  their  campaign  visits  and  ad  money  in  just  6                                                               
battleground states  in 2008;  98 percent went  to 15  states. He                                                               
said  voters  in  two-thirds  of   the  states  were  essentially                                                               
spectators to the election.                                                                                                     
MR.  KENDALL  reported  that  under  the  National  Popular  Vote                                                               
Interstate  Compact,  all   electoral  votes  from  participating                                                               
states  would  be  awarded  to  the  presidential  candidate  who                                                               
received the most  popular votes in all 50  states and Washington                                                               
D.C. The Interstate Compact becomes  effective when enough states                                                               
join that their collective electoral  votes add up to a majority,                                                               
that is, enough electoral votes to elect a president.                                                                           
9:51:07 AM                                                                                                                    
MR.  KENDALL said  the National  Popular Vote  Interstate Compact                                                               
will increase political efficacy and civic engagement.                                                                          
TOM OBERMEYER,  aide to  Senator Davis,  said that  the Electoral                                                               
College  would  remain  intact   under  the  proposed  interstate                                                               
compact,  which  is  a  constitutionally  authorized  method  for                                                               
states  to address  problems. With  this  compact, the  Electoral                                                               
College  would  change  from an  institution  reflecting  voters'                                                               
state-by-state choices  or, in  the case  of Maine  and Nebraska,                                                               
district-wide choices, into a  body reflecting voters' nationwide                                                               
choice.  He explained  that the  proposed  compact would  require                                                               
each  member   state  to  award   its  electoral  votes   to  the                                                               
presidential  candidate  who  received   the  largest  number  of                                                               
popular votes in all 50 states  and the District of Columbia. The                                                               
interstate  compact becomes  effective only  when it  encompasses                                                               
states  collectively  possessing  a  majority  of  the  electoral                                                               
votes. In  this manner, the presidential  candidate receiving the                                                               
most popular votes in all 50  states and the District of Columbia                                                               
would be guaranteed  enough electoral votes to be  elected to the                                                               
SENATOR PASKVAN asked  if the ideal is that each  vote count, why                                                               
not  just count  each vote  and dispense  with Electoral  College                                                               
MR. OBERMEYER  replied that changing the  Electoral College would                                                               
be more  difficult than implementing  an interstate  compact. The                                                               
Founding Fathers  set up  the Electoral  College in  part because                                                               
many people  were not  informed as to  who should  represent them                                                               
and  did  not  know  their   legislators.  The  Founding  Fathers                                                               
determined that  locally-known people could carry  a vote forward                                                               
for the election of the president.                                                                                              
9:54:26 AM                                                                                                                    
MR.  OBERMEYER  suggested  that changing  the  Electoral  College                                                               
itself might not be possible  and this national popular vote bill                                                               
requires  states  to  agree  to   "presumably,  888  words  in  a                                                               
SENATOR  PASKVAN  said  he  is concerned  that  Alaska  would  be                                                               
"contracting away" an essential right  by forming a contract with                                                               
other  states.   Perhaps  a system  of counting  each  vote on  a                                                               
nationwide basis  would be better and  preserve the Constitution,                                                               
as well.                                                                                                                        
MR. OBERMEYER  replied that  counting each vote  might be  a good                                                               
solution,  but it  may not  have  seemed possible  to people  who                                                               
designed the interstate compact.                                                                                                
SENATOR FRENCH  said he supports SB  92 and that the  person with                                                               
the most  votes should  win. He recognized  concerns about  SB 92                                                               
but supported the idea as basic democracy.                                                                                      
9:57:02 AM                                                                                                                    
PAT  ROSENSTIEL, National  Popular  Vote, said  SB 92  guarantees                                                               
that the candidate who gets the  most votes in all 50 states wins                                                               
the presidency  and that a  vote in Ketchikan, Alaska,  counts as                                                               
much as a  vote in Clearwater, Florida. SB 92  solves the problem                                                               
of  relegating  two-thirds  of  the  country  to  flyover  status                                                               
because   of   winner-take-all   statutes   which   are   not   a                                                               
constitutional principal.                                                                                                       
MR. ROSENSTIEL  offered a different  answer to  Senator Paskvan's                                                               
earlier question  about pursuing  a constitutional  amendment. He                                                               
explained that Alaska  has the right to allocate  its electors in                                                               
its  best interest  and a  constitutional  amendment would  strip                                                               
future  legislators  of their  power  to  do that.  However,  the                                                               
interstate compact preserves the  right of future legislatures to                                                               
withdraw  from it  if there  is  an unintended  consequence or  a                                                               
better choice  for Alaska  later. States  have switched  how they                                                               
allocate their electors throughout history,  he said, and he also                                                               
felt that an  interstate compact would be  the appropriate method                                                               
to change Alaska's way of allocating electors.                                                                                  
10:00:30 AM                                                                                                                   
SENATOR  PASKVAN asked  if the  original intent  of the  Founding                                                               
Fathers was or  was not a winner-take-all system. He  said if the                                                               
goal  is   to  establish  a  winner-take-all   system,  which  is                                                               
different from the original intent,  why not go to a winner-take-                                                               
all national vote.                                                                                                              
MR.  ROSENSTIEL  said  he  and   Senator  Paskvan  might  have  a                                                               
different  understanding of  winner-take-all.  He explained  that                                                               
winner-take-all statutes  currently dictate that a  candidate who                                                               
wins  the popular  vote  in  Alaska gets  all  three of  Alaska's                                                               
electoral votes. He  explained that this compact  is enacted when                                                               
more than  270 electoral votes  are in it. Those  electoral votes                                                               
are all awarded  to the candidate who wins the  most votes in all                                                               
50 states.  He said he  opposes abolishing the  Electoral College                                                               
because  those electors  give  Alaska  influence in  presidential                                                               
elections. The Founding Fathers intended  for states to provide a                                                               
check on the  federal magistrate with their  electoral votes, and                                                               
Alaska can allocate  its three electors in any  way, including by                                                               
joining this compact.                                                                                                           
10:03:30 AM                                                                                                                   
SENATOR  PASKVAN questioned  whether or  not winner-take-all  was                                                               
the original intent of the US constitution.                                                                                     
MR.  ROSENSTIEL  replied that  no,  the  original intent  of  the                                                               
Founding Fathers was not a  winner-take-all statute by state, but                                                               
rather  to  give  each  state  electoral  votes  based  on  their                                                               
representation to allocate in any way.  He said that in the first                                                               
presidential election,  three states  operated on  a winner-take-                                                               
all statute  of white property  owners; the other ten  states had                                                               
other  systems.  The  Founding Fathers  intended  for  Alaska  to                                                               
determine how to  exercise its influence through  its electors in                                                               
Presidential elections  and this compact is  consistent with that                                                               
constitutional principle.                                                                                                       
SENATOR PASKVAN said  he is troubled by the capacity  to sell, as                                                               
a commodity, our  electoral votes, and thereby the  election of a                                                               
president.  He  asked about  the  consequences  of breaching  the                                                               
compact if, for example, the state  had a Governor, a House and a                                                               
Senate that wanted to breach  the compact and oppose the national                                                               
10:06:23 AM                                                                                                                   
MR.  ROSENTIEL replied  that the  compact  has an  enforceability                                                               
10:07:12 AM                                                                                                                   
Short at ease                                                                                                                   
10:07:21 AM                                                                                                                   
CHAIR MENARD called the meeting back to order at 10:07.                                                                         
MR. ROSENSTIEL referred to clause 2  of Article 4 of the National                                                               
Popular Vote compact as follows:                                                                                                
     Any  member state  may  withdraw  from this  agreement,                                                                    
     except that  a withdrawal occurring six  months or less                                                                    
     before the end  of a President's term  shall not become                                                                    
     effective  until a  President or  Vice President  shall                                                                    
     have been qualified to serve the next term.                                                                                
He said if  Alaska wanted to pull out of  the compact because the                                                               
vote didn't go the way they  wanted it to, that withdrawal cannot                                                               
become  effective between  July 20th  of a  presidential election                                                               
cycle  and the  inauguration  on January  20th  of the  following                                                               
year.  A state  cannot withdraw  from a  compact without  running                                                               
counter to  the US Constitution's Impairment  clause, Safe Harbor                                                               
clause  and possibly  200 years  of  case law  that supports  the                                                               
enforceability  of  interstate  compacts.  He  reported  that  no                                                               
interstate compact  in US  history has  ever been  withdrawn from                                                               
without adhering to the clauses within that compact.                                                                            
LARRY SOKOL,  The National Popular Vote,  said the enforceability                                                               
stems from  Article 1  Section 10 of  the Constitution,  known as                                                               
the Impairments Clause,  which says no state shall  pass any laws                                                               
impairing the  obligation of contracts.  For over 200  years, the                                                               
Supreme Court  has upheld interstate  compacts as  contracts that                                                               
are  enforceable.   He  said  no  state   has  ever  successfully                                                               
challenged the  ability to  withdraw from  a compact  outside the                                                               
stated withdrawal provisions contained in that compact.                                                                         
10:11:24 AM                                                                                                                   
SENATOR PASKVAN  asked if  enforcement had  ever been  applied to                                                               
the contractual  delegation of  authority dealing  with Electoral                                                               
College votes.  He said this is  not a matter of  commerce but of                                                               
the  delegation   of  a  constitutional  authority   to  transfer                                                               
Electoral College  votes, and he  is not  aware of any  case ever                                                               
dealing with this subject in the nation's 230-year history.                                                                     
MR. SOKOL said  to his knowledge Senator Paskvan  is correct that                                                               
there has never  been a proposed interstate  compact dealing with                                                               
allocation  of   electoral  votes;   however  the   Contract  and                                                               
Impairment clause  of the Constitution has  successfully governed                                                               
all interstate  compacts, not just  those dealing  with commerce.                                                               
He noted that one of  the country's foremost legal authorities on                                                               
interstate compacts, Professor Joseph  Zimmerman of New York, was                                                               
integral in drafting this compact  and wrote a book that contains                                                               
all the assorted legal precedents and cases.                                                                                    
10:14:02 AM                                                                                                                   
SENATOR  PASKVAN asked  Mr. Sokol  if the  most efficient  way to                                                               
make  sure  each  vote  counts  is  to  eliminate  the  Electoral                                                               
MR. SOKOL  said he viewed the  process of states deciding  how to                                                               
use  their electoral  votes as  the appropriate  and historically                                                               
consistent method. Past  changes, such as extending  the right to                                                               
vote  for  president  to  the   people  or  eliminating  property                                                               
ownership  requirements  to be  able  to  vote, have  come  about                                                               
through  states   acting  on   their  own   and  not   through  a                                                               
constitutional  amendment. He  said  that  National Popular  Vote                                                               
believes state action, using state  rights and the 5th Amendment,                                                               
is  the historically  consistent  way that  the Founding  Fathers                                                               
intended these changes be made.                                                                                                 
10:16:07 AM                                                                                                                   
SENATOR  PASKVAN asked  why he  wants to  change anything  if the                                                               
original intent of the US  Constitution was the advancement of an                                                               
Electoral  College  system.   If  the  goal  is   to  change  the                                                               
Constitution  so  each  vote  counts, why  not  just  change  the                                                               
MR. SOKOL replied  that the Founding Fathers  intended for states                                                               
to determine  how they can  best allocate their  electoral votes.                                                               
In  National Popular  Vote's proposal,  states  agree through  an                                                               
interstate  compact, that  the candidate  who  receives the  most                                                               
popular  votes in  all  50 states  should  receive the  electoral                                                               
votes of each  individual state that signed onto  the compact. He                                                               
said he  could not say  that the Founding Fathers'  intention was                                                               
to have a national popular  vote, but their intention clearly was                                                               
for  each  individual state  to  determine  how to  allocate  its                                                               
electoral votes.                                                                                                                
10:17:47 AM                                                                                                                   
SENATOR  FRENCH said  Article 2,  Section 1  of the  Constitution                                                               
says:  "each   state  shall  appoint   in  such  manner   as  the                                                               
legislature there  of may  direct, a number  of electors…"  It is                                                               
complex, but  it is clear that  it is within the  province of the                                                               
legislature to determine.                                                                                                       
SENATOR MEYER  said the Electoral  College needs to  be abolished                                                               
and a national popular vote system  is needed if every vote is to                                                               
truly  count.  He  mentioned  that  even  if  Alaska  joined  the                                                               
compact,  it would  still be  a flyover  state; candidates  would                                                               
still focus on major population centers.                                                                                        
10:19:31 AM                                                                                                                   
CHAIR  MENARD   said  she  would   be  interested   in  Professor                                                               
Zimmerman's expertise.                                                                                                          
MR. ROSENSTIEL clarified that Senator  Meyer's question was about                                                               
candidates ignoring  Alaska during elections due  to its location                                                               
and small population.                                                                                                           
SENATOR  MEYER  agreed and  pointed  out  another frustration  in                                                               
Alaska is  that a winner  is often declared before  many Alaskans                                                               
have voted. He  would like to make sure all  votes count and that                                                               
Alaskans realize how important each vote is.                                                                                    
MR. ROSENSTIEL  said that  the compact is  intended to  make sure                                                               
that  the candidate  who wins  the most  votes in  all 50  states                                                               
wins, and  that a  vote in  every state  counts equally.  When an                                                               
Alaskan writes a  check to a political party  in the presidential                                                               
campaign, all the money is spent  in 6 or 15 battleground states.                                                               
The  compact rectifies  Alaska's  exportation  of this  political                                                               
economy every four years.                                                                                                       
10:22:49 AM                                                                                                                   
MR. ROSENSTIEL  said the interstate  compact will  keep resources                                                               
in  Alaska because  the votes  in  Alaska will  count toward  the                                                               
national total.  He pointed out  that the 1960  presidential race                                                               
came  down to  110,000 votes;  with  the system  proposed in  the                                                               
interstate  compact,  all eyes  would  have  been on  Alaska  and                                                               
Hawaii, the last polls to  close. He suggested Hawaii entered the                                                               
compact  because a  winner  would not  be  declared hours  before                                                               
their polls close. Alaskans feel  their votes are undervalued and                                                               
a  poll showed  that 70  percent think  this proposal  is a  good                                                               
10:25:03 AM                                                                                                                   
CHAIR MENARD opened public testimony.                                                                                           
SENATOR FRENCH  commented that  this is  a big-picture  bill that                                                               
triggers thought about democracy.                                                                                               
SENATOR PASKVAN said  he is troubled by not changing  to a system                                                               
in  which each  vote counts  and the  president is  elected by  a                                                               
majority  across   all  50  states.   He  was  troubled   by  the                                                               
legislative  branch of  each  state being  given  the ability  to                                                               
direct the  state's Electoral  College.   He worried  that Alaska                                                               
under this  language would be  delegating its electoral  votes to                                                               
another state's population. He said  he can foresee a state being                                                               
rewarded  by  breeching the  compact  in  some circumstances  and                                                               
creating litigation.                                                                                                            
10:27:30 AM                                                                                                                   
SENATOR  Meyer  moved  to  report   SB  92  from  committee  with                                                               
individual  recommendations and  attached  fiscal note(s).  There                                                               
being no objection, the motion carried.                                                                                         
10:28:16 AM                                                                                                                   
Finding no further  business to come before  the committee, Chair                                                               
Menard adjourned the meeting at 10:28 a.m.                                                                                      

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