Author: alaskaadmin

In August, more than 70% of participating Alaska voters supported Ballot Measure 1, voting to restrict the amount of money that individuals can contribute to campaigns for state office.

On Nov. 3, Alaskans will vote on Ballot Measure 2, and an overlooked section of that measure — intended to roll back the state’s election system to what it was in 2020 — almost certainly would repeal part of Ballot Measure 1.

“I mean, people are like, why didn’t you raise this earlier? I’m like, it’s got 91 sections, and I literally didn’t notice,” said Scott Kendall, the author of Alaska’s existing elections system and an attorney fighting Ballot Measure 2.

In 2020, Alaskans passed a different Ballot Measure 2. It installed three major changes to the state’s election system: An open primary, where all candidates run together, and the top four advance to the general election; a ranked choice general election, where voters sort those four candidates in order of preference; and a disclosure law requiring third-party groups to disclose their donors when the groups donate to political candidates and causes.

This year’s Ballot Measure 2 seeks to repeal all three parts, returning Alaska elections to what they were in 2020.

There’s also a new wrinkle because of this year’s Ballot Measure 1.

Passed by voters in August, Ballot Measure 1 limits the amount of money that someone can donate to a candidate. That includes governor and lieutenant governor candidates who run together as a single ticket.

That single-ticket system was installed in 2020’s Ballot Measure 2. Ballot Measure 1 limited donations to that single ticket, putting the limits in Alaska Statute 15.13.070(g).

Ballot Measure 2 seeks to get rid of the combined single-ticket campaign, and Section 5 states, “AS 15.13.070(g) is repealed.”

That would get rid of the combined donation limit for governor and lieutenant governor. But some state officials say another law may then come into play. 

Because candidates would — if Ballot Measure 2 passes — be running separately, they may be limited by a different part of Ballot Measure 1, AS 15.13.070(b), which applies to individual candidates.

That’s the position held by Alaska Public Offices Commission director Heather Hebdon. APOC is in charge of enforcing Alaska’s campaign finance laws.

By email, Hebdon said that if Ballot Measure 2 passes, “contribution limits for gubernatorial candidates would fall under those found in AS 15.13.070(b)(c) and (f).”

She believes APOC would likely write new regulations to deal with those limits’ applicability to governor and lieutenant governor candidates.

Kendall said he isn’t sure about that. 

“I will say it’s really legally tenuous. I think when you have a statute that says a thing and you explicitly repeal that thing, you get what you get,” he said.

He also observed that in 2021, when the 9th U.S. Circuit Court of Appeals struck down Alaska’s prior limits on political donations, APOC attempted but failed to preserve a limit for the state’s 2022 elections.

Supporters of Ballot Measure 2 said they don’t have a position on the issue.

“Repeal Now wrote Ballot Measure 2 as a full and complete repeal of the 2020 ballot measure that brought ranked choice voting to Alaska. We are unaware of any effect on Ballot Measure 1 and thus can’t comment on that,” said Bethany Marcum, treasurer of Repeal Now, the leading group behind Ballot Measure 2. 

Craig Richards, a former attorney general who represented Repeal Now in court, said he was unfamiliar with the issue.

The Alaska Department of Law also declined to make a definitive statement on the topic.

Sam Curtis, a spokesman for the department, said by email that attorneys within the Alaska Legislature would make the final determination of what happens if Ballot Measure 2 passes.

That’s because the revisor of statutes — an obscure staff official — is in charge of mediating disputes between enacted laws.

Emily Nauman, the Legislature’s chief attorney, declined to say how the Legislature might interpret any conflict. 

Rep. Calvin Schrage, I-Anchorage and a sponsor of Ballot Measure 1, said earlier this month that he has requested that Nauman’s office deliver a written ruling on the issue, but as of Tuesday afternoon, that memo had not yet been completed.

The Alaska Supreme Court has dealt with similar issues before. In 2021 and in 2006, the court ruled that later laws trump earlier ones.

“In general, if two statutes conflict, then the later in time controls over the earlier, and the specific controls over the general,” the court wrote in a 2006 decision.

On Sept. 11, Schrage said he doesn’t like the idea of repealing a campaign finance limit.

“It seems to fly in the face of what Alaskan voters have time and time again reaffirmed as a priority for them,” he said.

The Alaska Supreme Court had an opportunity earlier this month to address the issue but declined to take it up.

During arguments over the proper description of Ballot Measure 2 on the November election ballot, Kendall sought to bring up the Section 5 issue.

The court rejected Kendall’s attempt, saying it hadn’t been properly briefed beforehand.

As a result, the final description on the ballot says only that Ballot Measure 2 would “remove the limits on donations to joint campaigns for governor and lieutenant governor.” 

It doesn’t say whether anything will replace them. 

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