by Loren Leman
September 24, 2004
Dear Representative Croft:
Re: Your September 21 Letter Regarding Ballot Measure 4
I received your letter by fax late Wednesday, and was notified about it while I was on my way to three engagements that evening. I regret that I did not have the opportunity to discuss this with you in person before you wrote the letter-or with Rich Mauer, the Anchorage Daily News writer, before his deadline for writing the article that appeared in Thursday's edition of that paper.
Unfortunately, you have misstated facts and erroneously stated opinions that are very misleading. The information that I present in this letter should help clarify what I have done, correct your misstatements and, even if they do not change your mind, I believe will enable other Alaskans to better understand this issue.
You suggest that "political pressures" have caused me to act or not act in a way other than what you would want. This is absurd. You may think if you repeat these falsehoods enough times, the media and others will believe them. Abraham Lincoln had a response to this kind of posturing. He asked: "How many legs does a dog have?" The reply of course, was four. Lincoln asked again, "If we call the tail a leg, then how many legs does a dog have?" The reply five. "No," Lincoln said, "just because you call a tail a leg doesn't make it so."
And, just because you continue to run to the media with your claims of bias or unfair treatment doesn't make it so. I will respond specifically to the most egregious and inaccurate portions of your letter.
You state that the language I approved for this ballot summary is "factually incorrect and phrased in a biased and misleading manner." You request that I change it.
Here is the language in question:
TEMPORARY REPLACEMENT OF U.S. SENATOR
This measure would repeal state law that allows the Governor to appoint a person to temporarily fill a vacant seat in the United States Senate until an election can be held and certified. Under this measure a vacated seat would remain vacant for three to five months, leaving Alaska without full representation in the Senate. Other provisions are identical to existing law and those parts of the law remain unchanged. Current law requires that a senate vacancy be filled by special election, or regular election if the vacancy occurs less than 60 days before the primary election for that seat.
Should this initiative become law?
You specifically object to the second sentence of the summary, "Under this measure a vacated seat would remain vacant for three to five months, leaving Alaska without full representation in the Senate" and state that it is "biased and editorial," "misleading" and "factually incorrect." On the contrary, it is factual and something voters should be aware of when voting on this measure in the General Election.
I believe we can agree on one thing. The ballot measure no longer provides for election of a replacement for a Senate vacancy. That's already law. It would repeal only the provision allowing a temporary appointment until an election can be held and certified. Because of possible voter confusion from the fact that most of your original initiative is now law, I believe a careful and accurate presentation of the change and its impact are important. It will be up to you as an advocate for the initiative to convince voters that the impact is a good thing. I presume initiative opponents will make opposing arguments.
Under existing law, the soonest a special election can be called is 60 days after the vacancy occurs. It can, at the Governor's discretion, be as long as 90 days. In addition, there is a legally required period after the election for receiving absentee ballots, counting provisional (questioned) ballots, conducting the State ballot counting review and certifying the election. A candidate is not "elected" and cannot assume his or her office until this process is completed. The Division of Elections needs a minimum of 21 days to complete this work, if the election is not contested. As a practical matter, the absolute minimum time to fill a vacancy under your proposal is about three months, perhaps one week short of that if there are no challenges following the election. I believe that, to use your term, "as a matter of math" you haven't included the time for certification in your calculations.
You also apparently have not included certification time in your calculation of the vacancy if it occurred within 60 days of a primary election with the Senate seat on the ballot. In the worst case, the vacancy would be more than 150 days-in excess of five months. I also note that after the November 2 election this year the Congress is expected to go into a "lame-duck" session on about November 9. Under current law Alaska would have an appointed Senator representing our interests immediately. Under your proposed language, our State would be without representation until certification in the last week of November, or possibly late December if a full recount is required.
Another issue in which you and I disagree is how I have dealt with you and processed your initiative. I believe I have followed the requirements of the law and have been fair with you and your colleagues. You say in your letter, "The first time, you refused to give us the books to collect the signatures" Actually, Representative Croft, the first time your initiative (03USEN) was turned down because the bill was poorly drafted. You three sponsors who are also legislators had not included key language that repealed existing law. I did not at that time try to embarrass you by alerting the media. I simply told you and gave you time to remedy your error. I remind you that you as sponsors waited almost three months after the legislative session ended to start the initiative process on August 6, 2003-very near the practical deadline for getting on the 2004 ballot. You need to accept responsibility for your own actions that caused your initiative to get in a time crunch.
You further state, "We had to get a court order that you were illegally withholding the books from the people." I assume you are referring to your replacement initiative. Immediately upon receiving your second application I forwarded your proposal to the Department of Law for review. Attorney General Renkes wisely chose to examine important Constitutional questions, as he is required by law to do, before making a recommendation on whether to certify a petition. The Lieutenant Governor cannot and should not act on initiatives without the considered opinion of legal counsel.
The time the Department of Law took to review the application was in line with other reviews over the last several years (and a different Attorney General). See the attached information sheet.
Your final, most egregious assertion is, "The second time, you tried to illegally take the issue off the November ballot. The Alaska Supreme Court ruled that your actions were illegal and ordered you to place it on the ballot for the people to decide." You are playing fast and loose with the facts. As an attorney and lawmaker you know this statement is not true. HB 414 was identical to your initiative in every particular, except that it had a provision for a temporary Senate replacement to ensure Alaska's continued representation in the U.S. Senate.
The Attorney General and I agreed that this was "substantially the same measure" as specified in Article 11 of the Alaska Constitution, and as provided in a previous ruling by the Alaska Supreme Court. I believe the legislative record also confirms this-in that several legislators asked that question. You might even have been part of that debate-and I know you and the other two sponsors voted for HB414 with the temporary replacement language in it. If a Court disagrees with my opinion, mine is not an illegal act; it's a difference of opinion.
Instead of waiting until the evening of September 22 for your first input on the ballot language, you could have engaged in communication with me a lot sooner. Surely you recognized the time constraints we were under after the late Court ruling that required this initiative to appear on the General Election ballot.
I am reticent to question your motives, because I do not like it when you question mine. However, when I look at your entire track record on this initiative, I conclude that you could be more interested in politicizing this initiative rather than enacting good public policy.
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