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
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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 presidency. SENATOR PASKVAN asked if the ideal is that each vote count, why not just count each vote and dispense with Electoral College completely. 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 compact." 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 vote. 10:06:23 AM MR. ROSENTIEL replied that the compact has an enforceability clause. 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 College. 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 Constitution? 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 idea. 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.