Chapter IIIA. Internet Democracy
A. Introduction
B. Internet Voting Problem
PROBLEM: Internet Voting
Re: Review of initiative application for a new state capital, Office of the
Attorney General State of Alaska
2 U.S.C. ' 9
Sample State Internet Voting Statutes
Bruce v. City of Colorado Springs
Lubin v. Panish
Nelson v. Miller
Romer v. Evans
C. Regulation of Internet Campaign Activity
PROPOSED RULES FEDERAL ELECTION COMMISSION 64 Fed. Reg.
60360 Use of the Internet for Campaign Activity Friday, November 5, 1999
A. Introduction
The internet may be moving us toward a AGovernment of One,@ in which the individual is both the governor and the governed.
Technological advances deeply affect our society. They change what we do and how we do it, and perhaps more important, what and how we think. For example, the intercontinental telegraph changed the way we think about property rights with respect to news stories. See, e.g., International News Service v. Associated Press, 248 U.S. 215 (1918) (West Coast newspaper agency enjoined from using stories gathered on the east coast from rival newspaper agency).
The internet is substantially reducing the role of retailers. AShopping-dot-com@ companies are proliferating at lightening speed, allowing consumers to find, purchase and obtain delivery of goods directly from manufacturers or wholesalers, without the participation of retailers. See, e.g., Amazon.com, buy.com, cnet.com, gemshopping.com, hifi.com.
Changes in the marketplace have a tendency to affect changes in government. See John Martinez, Book Review, 25 Urban Lawyer 683 (1993) (reviewing David Osborne & Ted Gaebler,Reinventing Government: How the Entrepreneurial Spirit is Transforming the Public Sector (1992). So it should not be surprising, therefore, that the internet will dramatically affect not only our economic lives, but our political existence as well. See generally Mark Poster, CyberDemocracy: Internet and the Public Sphere (1995)
Our state, local and federal governments have elected representatives who act as Aretailers@ of public policy to citizens as Aconsumers.@ Unlike the economic marketplace, however, voters are both the Amanufacturers@ as well as the Aconsumers@ of representative government. Since the internet can at least potentially allow voters to express their views on issues of concern, therefore, the internet can greatly diminish the role of representatives in our society. The AState@ in state and local government law may not wither away in the new Millennium, but it will certainly be dramatically different.
B. Internet Voting Problem
PROBLEM IV. #1: Internet Voting
You have been retained by AThePeople.Com,@ a company that produces software and hardware for counting paper ballots through the use of computers. ThePeople.Com would like to know whether it should invest in gearing up for internet voting. Provide a memorandum analyzing all relevant issues with respect to the following proposed initiative. (For discussion about the California Internet Voting Initiative in its various iterations, and internet voting in general, see for a transcript of an ABC News Nightline program about internet voting, see for a proposed city internet voting ordinance, see
STATE INTERNET VOTING INITIATIVE
' 1: In order to promote broader participation in the state=s electoral processes, the People of the state hereby declare it to be the policy of the state:
(a) to legalize the use of the Internet for voter registration and the casting of ballots in all elections conducted by public entities in the state;
(b) to establish the right of every voter in the state to register to vote and to vote over the Internet from any platform anywhere providing Internet access, including, but not limited to, homes or offices; and
(c) to require that every public electoral jurisdiction in the state provide the means by which voters in that jurisdiction may vote in elections in that jurisdiction by means of the Internet from any platform anywhere providing Internet access, including, but not limited to, homes or offices.
' 2: The Legislature shall adopt legislation implementing this Initiative by January 1, 2001. Such legislation shall:
(a) authorize the use of the Internet for election purposes, including voter registration and the casting of ballots;
(b) require the Secretary of State, within 90 days of the enactment of such legislation, to develop and adopt standards according to which the Internet may be used for these purposes;
(c) allow for the casting of ballots and the registration of voters by electronic means over the Internet from any platform anywhere providing Internet access, including, but not limited to, homes or offices;
(d) minimize the wrongful manipulation, fraudulent use, or violations of the integrity of the means by which the Internet is used for these purposes by requiring Internet voting systems to employ suitable technologies and practices, and establish suitable sanctions against those illegal acts;
(e) adopt a policy of providing all voters with suitable means of identifying and authenticating themselves over the Internet from any platform anywhere providing Internet access, including, but not limited to, homes or offices, in order to perform the electoral functions covered by this measure;
(f) adopt a policy of providing suitable means of assuring the confidentiality of information communicated by voters pursuant to such legislation; and
(g) require that all elections in the state shall include internet registration and voting by January 1, 2002.
Re: Review of initiative application
for a new state capital
Office of the Attorney General
State of Alaska
1993 WL 566450 (Alaska A.G.)
File No. 663-94-0113
August 24, 1993
The Honorable John B. AJack@ Coghill
Lieutenant Governor
State of Alaska
Dear Lieutenant Governor Coghill:
I. INTRODUCTION AND SUMMARY
You have asked us to review the application for an initiative petition providing for the capital of Alaska to be moved to Wasilla, Alaska. The application and the proposed bill comply with the constitutional and statutory provisions governing the use of the initiative. Therefore, the application should be certified.
II. ANALYSIS
A. Introduction
Under AS 15.45.070, the lieutenant governor is required to review an application for a proposed initiative and either Acertify it or notify the initiative committee of the grounds for denial.@ The grounds for denial of an application are that (1) the proposed bill is not in the required form; (2) the application is not substantially in the required form; or (3) there is an insufficient number of qualified sponsors. AS 15.45.080.
B. The Form of the Application
The form of an initiative application is prescribed in AS 15.45.030, which provides:
The application shall include (1) the proposed bill to be initiated, (2) a statement that the sponsors are qualified voters who signed the application with the proposed bill attached, (3) the designation of an initiative committee of three sponsors who shall represent all sponsors and subscribers in matters relating to the initiative, and (4) the signatures and addresses of not less than 100 qualified voters.
The application meets the first three requirements. The proposed bill is included in the application, the sponsor signature pages include the proposed bill and a statement that the sponsors are qualified voters, and the application designates a three-member initiative committee. Before petitions are issued, your office must determine whether the application contains the signatures and addresses of not less than 100 qualified voters.
C. The Form of the Proposed Bill
The form of a proposed initiative bill is prescribed by AS 15.45.040, which requires that (1) the bill be confined to one subject; (2) the subject be expressed in the title; (3) the enacting clause be ABe it enacted by the People of the State of Alaska@; and (4) the bill not include prohibited subjects. The prohibited subjectsCdedication of revenue, appropriations, the creation of courts or the definition of their jurisdiction, rules of court, or local or special legislationCare listed in AS 15.45.010 and in article XI, section 7, of the Alaska Constitution. Constitutional amendments are also a prohibited subject. Starr v. Hagglund, 374 P.2d 316, 317 n.2 (Alaska 1962).
The proposed bill reads:
An act providing for a new capital for the State of Alaska.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF ALASKA:
SECTION 1. At the first statewide election at which this initiative can be submitted to the People of Alaska, the voters shall be asked:
Shall the capital of Alaska be changed to Wasilla?
SECTION 2. If a majority of the votes cast on the question vote yes, Wasilla, Alaska shall be Alaska=s capital effective January 1, 1997.
The proposed initiative meets the first three requirements of AS 15.45.040: it is confined to one subject; the subject is expressed in the title; and the enacting clause is in the proper form.[1]
The proposed bill raises three issues with regard to prohibited subjects: (1) whether the initiative would make an appropriation; (2) whether the initiative would enact local or special legislation; and (3) whether the initiative would impermissibly amend the Alaska Constitution.
1. Would the proposed initiative make an appropriation?
The proposed initiative would not make an appropriation. An appropriation Ainvolves setting aside funds for a particular purpose.@McAlpine v. University of Alaska, 762 P.2d 81, 88 (Alaska 1988) (emphasis in original); see also Alaska Conservative Political Action Committee v. Municipality of Anchorage, 745 P.2d 936, 938 (Alaska 1987) (initiative requiring conveyance of government assets is an appropriation whether the assets are money or other property); Thomas v. Bailey, 595 P.2d 1, 7-9 (Alaska 1979). That state money would have to be expended in order for an initiative to be implemented never has caused the Alaska Supreme Court to invalidate an initiative. Rather, A[t]he reason for prohibiting appropriations by initiative is to ensure that the legislature, and only the legislature, retains control over the allocation of state assets among competing needs.@McAlpine, 762 P.2d at 88 (footnote omitted) (emphasis in original).
The proposed initiative Aleaves the legislature with all the discretion it needs with respect to appropriations@ for a new capital. McAlpine, 762 P.2d at 91. Nothing in the proposed bill usurps the legislature=s appropriation powers. For these reasons, the proposed bill does not violate the constitutional and statutory prohibitions against using the initiative to make an appropriation.
2. Would the proposed initiative enact Alocal or special@ legislation?
Nor can the proposed initiative be characterized as Alocal or special legislation@ prohibited by AS 15.45.010 and article XI, section 7, of the Alaska Constitution. In Boucher v. Engstrom, 528 P.2d 456 (Alaska 1974), the Alaska Supreme Court reviewed a proposed initiative to relocate the capital of Alaska from Juneau to a location to be determined by a commission. The court held that the initiative did not constitute local or special legislation, stating:
Thus, in deciding whether an initiative is local or special legislation, we must consider the subject matter of the initiative and determine whether the subject matter is of common interest to the whole state. In our view, the question of the location of Alaska=s capital has obvious statewide interest and impact. Access to Alaska=s seat of government is of substantial importance to citizens of Alaska throughout the state.
Boucher, 528 P.2d at 461 (footnotes omitted).
The court further observed that Aa law does not cease to be general, and become local or special, because it operates only in certain subdivisions of the state.@Id. at 461-62. Rather, the critical element in determining whether legislation is Alocal or special@ is whether there is a rational basis for the particular classification; the classification must bear a reasonable and proper relationship to the purposes of the act and the problem sought to be remedied. Id. at 463.
The court determined that if any conceivable factual basis would render an initiative=s classification constitutional, the state=s courts are obligated to uphold the measure. Applying this test, the court upheld the initiative, finding a rational basis for eliminating Anchorage and Fairbanks from consideration on the premise that the new capital should be a planned capital not located in a relatively heavily urbanized area. Id. at 464.
A factual basis exists to support the proposed initiative for a new capital at Wasilla. Wasilla is located in the Matanuska-Susitna Valley near Anchorage. This area is the main center of population in Alaska. Changing the capital of Alaska to Wasilla is rationally related to making the capital more accessible to Alaskans. In considering this issue, it is important to point out that, in the absence of a clearly fatal constitutional flaw, an initiative should be allowed to proceed in order to facilitate the citizens= right to utilize the initiative, Aan act of direct democracy guaranteed by our constitution.@Yute Air Alaska, Inc. v. McAlpine, 698 P.2d 1173, 1181 (Alaska 1985). In using the initiative, the Alaska Supreme Court has repeatedly recognized that the Apeople are exercising a power reserved to them by the constitution and the laws of the state, and that the constitutional and statutory provisions under which they proceed should be liberally construed.@Id. (quoting Boucher v. Engstrom, 528 P.2d at 462, and Municipality of Anchorage v. Frohne, 568 P.2d 3, 8 (Alaska 1977)). The court applied this rule of liberal construction in its review of the local or special legislation question in Boucher. Id. at 462.[2]
3. Would the proposed bill impermissibly amend the Alaska Constitution by initiative?
The proposed bill would not impermissibly amend the Alaska Constitution by initiative.
The Alaska Supreme Court addressed this issue in Starr v. Hagglund, 374 P.2d 316 (Alaska 1962). In Starr, the court considered an initiative petition to move the capital from Juneau to some place in Western Alaska. The court held that article XV, section 20 of the Alaska Constitution, which provides that A[t]he capital of the State of Alaska shall be at Juneau,@ is a transitional provision which Ais subject to change by law, enacted either by the legislature or by the people through the initiative.@Id. at 322.
III. IMPARTIAL SUMMARY OF THE PROPOSED BILL
AS 15.45.090(2) requires that the initiative petition include an impartial summary of the subject matter of the bill. We recommend the following title and summary:
An Act providing for a new capital for the State of Alaska.
This initiative would amend state law to provide that the capital of Alaska be changed from Juneau to Wasilla effective January 1, 1997.
V. CONCLUSION
For the reasons discussed above, it is concluded that the proposed initiative complies with the constitutional and statutory provisions governing the use of the initiative. Therefore, provided the required number of signatures and addresses of qualified voters have been submitted in the application, we recommend that you certify the application and so notify the initiative committee. Preparation of the petitions may then commence in accordance with AS 15.45.090.
Please let us know if you have any questions.
Very truly yours,
Charles E. Cole
Attorney General
Notes and Questions
1. Most states designate a particular state officer the responsibility for determining whether a proposed initiative petition satisfies state and federal laws. As illustrated, that state official may ask the state=s attorney general for a formal opinion. Such opinions routinely err on the side of allowing petitions to be presented to the electorate.
2. May the required number of signatures for the State Internet Voting Initiative petition be obtained through the internet? What if each signer obtains the form through the internet faxes or mails it to the petition sponsors?
United States Code Annotated
Title 2. The Congress
Chapter 1CElection of Senators and Representatives
2 U.S.C. ' 9
' 9. Voting for Representatives
All votes for Representatives in Congress must be by written or printed ballot, or voting machine the use of which has been duly authorized by the State law; and all votes received or recorded contrary to this section shall be of no effect.
R.S. ' 27; Feb. 14, 1899, c. 154, 30 Stat. 836; R.S. ' 27 derived from Acts Feb. 28, 1871, c. 99, ' 19, 16 Stat. 440, and May 30, 1872, c. 239, 17 Stat. 192.
Notes and Questions
1. Does internet voting constitute the use of a Avoting machine?@
2. Why should state law control?
Sample State Internet Voting Statutes
Utah Code Annotated
' 20A-6-103 Internet voting pilot project
Notwithstanding any other provisions of this title, any second class county may, if selected by the Department of Defense, participate in the Federal Voting Assistance Program pilot project to allow military voters as defined by Section 20A-3-403 to cast their votes electronically.
Montana Code Annotated
' 12-12-276 Legislative findings and purpose.
[Preamble, Ch. 111, L. 1991.]
WHEREAS, there is increasing interest on the part of both state and federal agencies in the use of facsimile transmissions for the purpose of voting in state and federal elections, particularly for the casting of absentee ballots by men and women of the Armed Forces serving in Operation Desert Shield; and
WHEREAS, the federal Uniformed and Overseas Citizens Absentee Voting Act authorizes but does not require the use of facsimile ballots in federal elections; and
WHEREAS, state election laws currently present severe obstacles to the use of facsimile voter registration and the sending and receiving of absentee election ballots by facsimile; and
WHEREAS, the adoption of state laws allowing registration of absentee voters and the sending and receiving of absentee ballots by facsimile may increase the likelihood that absentee voters would exercise their right to vote; and
WHEREAS, adoption of rules by the Secretary of State that provide for absentee voter registration and the casting of absentee ballots by facsimile would provide maximum flexibility for state and local election officials to work with one another and appropriate federal officials to see that voting by facsimile becomes a reality in this state.]
The legislature finds that the increased use of facsimile transmissions and the internet has encouraged the possibility of absentee voter registration and the sending and receiving of absentee ballots by facsimile and electronically through the internet. The legislature also finds that while federal law encourages but does not require the use of facsimile transmissions and the internet in federal elections, there is sufficient reliability in facsimile and internet technology and sufficient evidence that absentee facsimile and internet voting would be of benefit to electors in the United States service to provide for absentee registration and voting by facsimile and electronically through the internet. It is the purpose of 13-13-276 through 13-13-278 to allow for absentee voter registration and voting by facsimile and electronically through the internet for overseas electors in the United States service, while recognizing that state and local election officials have the responsibility to maintain the accuracy, integrity, and secrecy of the election process and the individual election ballot. It is the purpose of the legislature to allow facsimile and internet voting for electors in the United States service but to continue to ensure that voting security is maintained for the ultimate purpose of preventing election fraud and maintaining the validity of the election process.