Senate bill would strike down initiatives modified in court
A bill that would make it a little harder for Alaska voters to change or make laws on their own is halfway through the Legislature.
The state Senate passed Senate Bill 80 on a 15-4 vote May 2, which would require the lieutenant governor to automatically reject a voter-sponsored initiative if the courts deem a portion of the initiative unconstitutional.
SB 80 sponsor Sen. Chris Birch, R-Anchorage, said during floor debate that the bill is aimed at assuring an initiative — a proposed change to state law — that makes it on a statewide ballot matches what voters signed for early in the process.
Alaska is one of 24 states that allow citizens to enact legislation through a voter-driven initiative.
In Alaska, initiative sponsors have up to one year after the lieutenant governor certifies their application to collect signatures from registered voters at least equal to 10 percent of the number of voters in the prior general election with voters from at least 30 of the 40 state House districts.
From there, the sponsors file the petition booklets with the Division of Elections for review. The division and the lieutenant governor, whose primary responsibility is overseeing elections, then have 60 days to certify the initiative as eligible to appear on a statewide ballot or reject it.
However, the timing in that process can sometimes lead to incongruities between what initiative supporters sign their names to and what actually appears on the ballot. It’s what happened last year with the “Stand for Salmon” initiative and what Birch says SB 80 seeks to avoid.
“Voters should be assured that the language on the ballot has not changed from the language in the petition booklets supported with signatures,” Birch said.
According to the Department of Law, just two voter-sponsored initiatives have been amended by state courts and appeared on the ballot: the salmon habitat initiative and another, which also failed in 1988, relating to the state university system.
Overall, Alaskans have voted on 54 ballot initiatives since statehood, according to Division of Elections records.
The sponsors of the Stand for Salmon initiative — which sought to overhaul the state’s salmon habitat permitting regime and set higher bars for development projects in those areas — had their petition application rejected by former Lt. Gov. Byron Mallott in September 2017.
Mallott rejected the proposed initiative language on the advice of Department of Law officials who said the salmon habitat initiative violated aspects of the state Constitution.
That led to a Superior Court review of the initiative language and Judge Mark Rindner in October 2017 overturned Mallott’s decision, allowing the initiative to proceed. Rindner’s decision, in turn, was appealed by the Department of Law to the Alaska Supreme Court while the Stand for Salmon sponsors were gathering the more than 32,000 signatures needed to get their initiative on the fall 2018 ballot.
The Supreme Court ultimately ruled unanimously in August 2018 that the most restrictive requirements the proposed initiative would have placed on development proponents were unconstitutional.
The justices stripped those portions of the initiative out and allowed the remaining aspects to move ahead for a public vote because they determined it remained substantially similar to the original, but the version of Stand for Salmon that appeared on the ballot did not match what signatories supported; it was watered-down.
The Stand for Salmon initiative eventually lost by nearly a 2-1 margin after an intense campaign.
Birch, who strongly opposed Stand for Salmon, said in an interview that SB 80 is in response to how the salmon habitat initiative played out, but he noted that it “cuts both ways” for future initiatives if SB 80 passes.
Public support in Senate hearings for the bill came primarily from pro-development groups that campaigned against Stand for Salmon last year, such as the Resource Development Council for Alaska, the Alaska Chamber and the Alaska Support Industry Alliance.
“I think when you sign something in front of the REI store the expectation is presumably whatever you sign is going to be on the ballot and not substantially rewritten by the courts,” Birch said.
Those groups stressed in written testimony that the language of a ballot initiative needs to remain wholly intact throughout the process and if it is changed by a court the Legislature should have an opportunity to review the modified initiative.
The Legislature can nullify an initiative by passing a law that is “substantially the same” to the initiative, according to the Constitution, which lawmakers did last year in response to an initiative dealing with legislative pay and conflict of interest laws.
The groups also contend SB 80 would limit the number of protracted legal battles over voter initiatives and discourage sponsors from drafting ambitious language with an implicit understanding that the courts can do the requisite editing.
Sen. Jesse Kiehl, D-Juneau, said during floor debates that SB 80 would likely result in the opposite; opponents of an initiative could challenge it and hunt for any small inconsistencies that could result in the whole thing being sent back to square one.
Valerie Brown, legal director for the environmental law firm Trustees for Alaska represented the Stand for Salmon sponsors in front of the Supreme Court, dismissed the notion that sponsors “shoot for the moon” in drafting an initiative and rely on the courts to refine its legality.
“That whole (legal) process — you don’t want to go through it if you don’t have to. It’s time consuming; it’s expensive. You want language that adheres to the allowable restrictions on initiatives that do exist,” Brown said in an interview.
She characterized SB 80 as a way to restrict citizens’ voices in the lawmaking process.
“They saw a citizens’ uprising essentially demanding better protections for salmon and now we have this bill that’s an attempt to add another restriction to how you can use initiatives,” she said.
SB 80 also faces legal questions of its own. An April 23 memo to Kiehl from Legislative Legal Services attorney Alpheus Bullard surmises that the bill could be unconstitutional because it would place additional restrictions on the initiative process beyond what is called for in the Alaska Constitution.
Article XII of the Constitution, according to Bullard, requires that the rules for direct citizen lawmaking cannot be more restrictive than what the Legislature must abide by; and bills going through the traditional legislative process can be parsed.
For his part, Birch points to Article XI, which states that, “Additional procedures (beyond those in the Constitution) for the initiative and referendum process may be prescribed by law.”
“I understand protecting the public’s right for redress and petitioning their government but at the same time there’s an issue of overreach,” he said. “You can just put anything willy-nilly into the legislation and then it finds its way onto the ballot and you’ve got a huge (campaign) cost and impact.”
More than $10 million was spent on a campaign opposing Stand for Salmon, while its supporters spent roughly $3 million.
Brown suggested as an alternative to SB 80 that a formal process be set up in which initiative sponsors could consult with Department of Law officials about the constitutionality of their proposal.
Currently, she said, it’s up to the department if such guidance is going to be offered.
In the case of Stand for Salmon, Law attorneys first notified the sponsors before Mallott rejected it that several aspects of the initiative likely did not pass constitutional muster.
The sponsors subsequently resubmitted a new version of their habitat permitting law change — which again was ultimately rejected by Mallott — but Law officials were criticized by opponents of the initiative for their assistance.
“They caught a lot of flak for even being willing to tell us what they thought was wrong, so if they had an administrative process where in good faith the sponsors could work with the Department of Law that would be a chance to keep some of these challenges out of court,” Brown said.
Ballot measure spending
The version of SB 80 that passed the also includes a late amendment by Sen. Bill Wielechowski, D-Anchorage, that would prohibit state money from being spent to influence ballot measures such as initiatives, referendums, recalls and proposed constitutional amendments.
Wielechowski said he thinks most people likely already believe it is illegal for state money to be spent on a ballot measure campaign; however, it is legal if the funds are specifically appropriated for that purpose.
“The state’s role in the ballot process should be to conduct fair elections and then should be to implement the will of the people,” he said during debate on SB 80.
To that end, the bill could make Gov. Michael J. Dunleavy’s radio ads promoting his administration’s proposed constitutional amendments illegal.
Officials in the Governor’s Office said in a March 21 press release that a series of radio spots costing approximately $9,000 in support of his plan to enshrine the Permanent Fund Dividend in the Constitution would air in the Kenai, Mat-Su and Fairbanks areas.
SB 80 is now up for consideration in the House, where it has been referred to the State Affairs and Judiciary committees. No hearings have yet been scheduled.
Elwood Brehmer can be reached at [email protected].