Requested by: Joe Josephson
Prepared by: Shelley Ebenal, Assistant Director
Date issued: September 28, 2000
Subject: Registration and Reporting Requirement of a Group Formed to File a Legal Challenge to a Ballot Proposition.
This Opinion is in response to your July 28, 2000 letter notifying APOC of a complaint filed on behalf of Citizens of Alaska for a Sound Economy (CASE) and clarifying your understanding that CASE does not have a reporting obligation to the Alaska Public Offices Commission (Commission.)
Staff agrees that CASE is not required to report their fund raising and expenditure activity to the Commission, provided their activity is restricted solely to their legal challenge of State of Alaska Ballot Proposition Number 4.
You have stated that CASE is a group formed for the sole purpose of prosecuting a legal challenge to Ballot Proposition Number 4. CASE will only expend funds on litigation costs for this challenge. CASE will not contribute to, nor receive contributions from, Alaskans United Against the Cap, or any other group, nor will CASE make any independent expenditures to influence voters to vote on Ballot Proposition Number 4
AS 15.13.010(b) ., this chapter applies to contributions, expenditures and communications made by a candidate, group, municipality or individual for the purposes of influencing the outcome of a ballot proposition or question..
AS 15.13.110(e) A group formed to sponsor an initiative, a referendum or a recall shall report 30 days after its first filing with the lieutenant governor. Thereafter each group shall report within 10 days after the end of each calendar quarter on the contributions received and expenditures made during the preceding calendar quarter until reports are due under (a) of this section.
In 1985, the Commission approved an advice letter to the Alaskans for Justice, a group formed to sponsor a state initiative authorizing capital punishment. The letter stated that Alaskans for Justice were not required to report contributions and expenditures made for the sole purpose of collecting the signatures necessary to submit a petition. The Commissions' advice was based, in part, on the emphasis in AS 15.13 on the disclosure of finances that specifically "influences the outcome of a ballot proposition or question" prior to the date the proposed ballot issue is certified and, in part, on the constitutional rights of citizens to petition their government.
This is the first time the Commission has been asked to provide guidance to a group challenging the legality of a ballot question after certification, but before the election. However, the Commission has a longstanding policy of not requiring a group formed to initiate a legal challenge against a ballot initiative before certification, or a ballot question after the election, to either register or report.
The Commission has taken the position that groups formed to sponsor or initiate a legal challenge to a ballot initiative before certification are not "influencing the outcome of an election" since the initiative is not yet on the ballot. In 1999, an initiative to increase the alcohol tax was circulated. Before certification, a group of hospitality associations filed a law suit challenging the legality of the initiative. The Commission was aware of the suit, but did not require the group to register or report to the Commission.
Likewise, groups formed to initiate a legal challenge after an election are not influencing the outcome of a ballot question, since the question has already been decided by the voters. For example, in 1988, an initiative passed, which established English as the official language in Alaska. A law suit was filed presenting a legal challenge to this initiative. The Commission was aware of the group, but did not require the group to register or report.
In adopting this policy, the Commission also considered the rights of individuals and groups to petition the court on the legality of any measure to go on the ballot. In Vogler v. Miller, 651 P.2d 1 (Alaska 1982) an independent candidate challenged an amendment to AS 15.25.160. This amendment effectively increased the percentage of signatures needed to get a candidate of a political party on the gubernatorial ballot. The court found that the State did not have a compelling interest to justify the additional infringement on candidates and voters constitutional right to access the ballot. Although this case is not directly controlling as to this present issue, the Commission is likewise mindful to avoid infringing on the constitutional rights of individuals and the members of groups.
Based on the above, staff believes the Commissions longstanding policy would also apply to a group formed to file a legal challenge after certification but before the election. CASE, like the 1998 and 1999 groups, is not influencing the outcome of a ballot question in its attempt to determine, through a court case, whether the ballot initiative should or should not be presented to the voters.
Staff believes that CASE's activities in filing a court action are not intended to influence the outcome of a ballot question and therefore, CASE is not subject to the campaign disclosure law.
The Commission approved the advice in this letter by an affirmative vote of 5-0 on November 30, 2000 with minor typographical changes. The advice in this opinion applies only to the specific activity for which the advice was requested.
A copy of the original letter requesting the above advisory opinion is available upon request at the Alaska Public Offices Commission. 907/276-4176.