Thank you to the 754 Alaskans who have participated in the poll I put out this week about legislators voting in secret. Those who have participated to date voted 774 to 6 that an elected legislator’s official votes should always be made public, without exception. The results of the poll are here.
I received several requests this week for the backstory on the poll. I didn’t want to overly prejudice the poll from the outset, but with over 750 responses now, I’m glad to share the backstory.
On Wednesday, I was told that an official legislative vote (pursuant to AS 15.40.330), will be held later today. On Wednesday, I asked that the vote be made public, as is the case with all of the other official votes that we cast as legislators. I was told that the vote will not be made public, that only one legislator will be permitted to count the votes, and that only one legislator will know how each of the other legislators have voted.
I am now in my second term as a legislator, and this is highly irregular. Every official vote I have cast as a legislator should be part of the public record, and by state law (AS 24.08.105) should be made available to any other legislator or member of the public upon request. When I cast an official vote, I do so on behalf of the people in my district. It is their vote, and they have a right to know how I cast their vote.
Alaskans should never have to “take my word for it” on how I voted. Anyone should be able to watch for themselves how I voted, and afterward find my vote recorded either in the committee minutes or in the Legislative Journal. In the one instance this year where legislators’ votes were going to be omitted from the House Journal, steps were immediately taken to correct the oversight.
I setup the poll this week to gauge whether I might be an outlier in how I see this issue. I was very glad to see that I am not, and that most Alaskans have difficulty imagining a scenario where it would be appropriate for legislators to take an official vote in secret.
After further legal research the past couple days, I have learned that state law is also in line with the expectation that a legislator’s votes should never be made in secret. I expected to receive a more detailed legal opinion from the legislature’s lawyers in advance of today’s meeting, but as that has not been forthcoming, here is how I currently see the issue and the legality of my participation in the meeting and vote to be held later today.
Resignation of Rep. Tammie Wilson
On Tuesday, Governor Dunleavy announced his appointment of Mike Prax to fill the House District 3 seat left vacant by the resignation of Rep. Tammie Wilson (R-North Pole) on January 24th. Today’s vote will be to confirm (or fail to confirm) the governor’s appointee.
Mike Prax was one of three candidates chosen by the Republican Party in North Pole to forward to the governor for his consideration. [See local media coverage of each stage of this process; here, here and here.]
The process of Republican legislators in the House voting on the confirmation of the governor’s appointee is required by state law, pursuant to AS 15.40.330. As Rep. Wilson was elected as a Republican, only Republican legislators are permitted to vote on the confirmation of her replacement.
Under the broadest possible interpretation of this statute, all 22 house legislators elected as Republicans in the last election are permitted to vote on whether to confirm the governor’s appointee. A majority of votes is required in order to confirm the appointment. If all 22 legislators are participating, at least 12 votes are needed in order for Mike Prax to be seated as the state representative for House District 3.
Open Meetings Guidelines
Alaska state law requires that, with very few exceptions, all legislative meetings be open to the public. The primary trigger is any meeting where legislators are present, and voting “is taken or could be taken” (AS 24.60.037). State law goes further and prohibits a legislator from participating in any meeting that violates these guidelines:
A meeting of a legislative body is open to the public in accordance with the open meetings guidelines established in this section. A legislator may not participate in a meeting held in violation of these open meetings guidelines.
The issue of legislators attempting to cast votes in secret or to hold closed-door meetings to confirm appointees of the governor has generated concern from not only the legislature’s own attorneys but also from the Alaska attorney general in both Republican and Democratic administrations (2009 Op. Alaska Att’y Gen. (April 20)).
The strongest argument supporting the legality of such meetings seems to be that legislators have done it before. Having read the state law cited above, I do not believe that is a strong argument.
As a freshman, I might have made the mistake of assuming that previous legislators followed the law on such things. Unfortunately, legislators set aside state law on an increasingly frequent basis today.
As a separate branch of government, there are many circumstances in which a group of legislators may stretch or break state law, and neither the executive nor the judicial branch will be in a position to immediately enforce compliance. That is the nature of having separate branches of government. But just because another branch of government is not in a position to enforce a particular law, does not mean that conduct on the part of the offending legislators is legal or that other legislators should follow in their footsteps.
With the status of a separate branch of government comes the responsibility to follow the law. This is why elected and retained officials in all three branches take an oath to the constitution, and not to their particular branch of government. We must stop the slide towards increasingly scofflaw behavior on the part of our legislative branch. That responsibility should fall first on legislators, in keeping with the oath of office they took when they were first sworn in. When one or more legislators prove themselves unable to live up to that oath, it next falls to the people whom they work for.
Alaska state law makes no provision for legislators to meet in closed-door meetings, without public notice, to cast votes. In fact, state law declares that “[a] legislator may not participate in a meeting held in violation of these open meetings guidelines.”
While I would like to cast my district’s vote today to confirm the governor’s appointee, I do not see how I can legally participate in the secretive process that some legislators have chosen to engage in today.
If the meeting is held today without my participation, I encourage Alaskans to contact their Republican legislator and inquire how their legislator voted. Knowing how your legislator voted is your right, and the right of every Alaskan in keeping with the Republican form of government that we are guaranteed under the U.S. Constitution.