Rep. Ben Carpenter
Alaska House of Representatives, District 8

HB 124 “An Act relating to filling a vacancy in the legislature by appointment.”

HB 124 amends current statute to clarify that the governor must appoint a replacement to a legislative vacancy within 30 days unless the term of office will expire within 30 days or if a vacancy in the senate will be filled by special election prior to the legislature next convening.

Ambiguity currently exists in AS 15.40.320 regarding the exceptions for filling vacancies in the state legislature. This ambiguity led to the 2020 District 30 vacancy taking 171 days to be filled.

Since statehood Alaskans have gone without representation in the House of Representatives 21 times because of various delays in the replacement process. HB 124 clarifies the process by amending the statute to clearly communicate the exceptions to the 30-day appointment requirement.

AS 15.40.320 currently clearly indicates that “When a vacancy occurs in the state legislature, the governor, within 30 days, shall appoint a qualified person to fill the vacancy.” Shall means must. The next sentence provides two exceptions and a qualifying statement to the governor’s 30-day appointment requirement.

The first exception refers to the expiration of the remainder of the predecessor’s term and the second exception refers to Senate vacancies filled by special election. The qualifying statement refers to the legislature meeting, convening, or reconvening. The ambiguity exists because of individual interpretation of whether the qualifying statement refers to both exceptions, or just the second one.

In 2020, Governor Dunleavy’s reasoning for not appointing a replacement for District 30 was that he did not have the authority to make the appointment because the term of office would expire before the next legislature would meet, convene, or reconvene. His position was that the qualifying statement applied to the first exception, therefore he was prohibited from appointing a replacement.

It is my position that the qualifying statement refers only to the second exception because the qualifying statement’s impact on the first exception would be to negate the first requirement to fill the vacancy within 30 days even though much of the predecessor’s term of office may remain. It may be argued that the vacancy appointment provision was only intended to ensure representation during a legislative session. However, I believe that position would not be in the best interest of the people and is disadvantageous to Alaskans with our current form of representative government.

Legislators not only represent the people during legislative session, but they also represent them in relationship to their government on a wide array of issues while the legislature is adjourned. Alaskans expect that if they are having problems with a state agency, one recourse they have is to contact their state representative for assistance.

The duties and salary of a representative continue during the interim between legislative sessions, and the oath of office applies for the entire term of office. There is clear intent that the framers of our representative form of government intended for continuous representation from each district in our state legislature.

HB 124 restructures the statute by adding the clarifying language “within 30 days after the vacancy occurs” to more clearly communicate that the exception to the 30-day appointment requirement only applies to appointments where the predecessor’s term will expire within 30 days. In practice, this refers to a vacancy that occurs in the time between a November election and the start of the next legislature, in which case, the vacancy would remain until the legislature is in session and the newly elected representative is sworn in. In practice, this language change would also impact a vacancy that occurs prior to the November election, in which case, the vacancy would be required to be filled by the governor within 30 days and would follow the established statutory process for doing so.

This language change will ensure consistent legislative representation for all Alaskans by requiring the governor to submit a legislative vacancy appointment within 30 days unless the vacancy occurs in the 30 days preceding the start of the first session of a new legislature or a special election will be held to fill the vacancy.

HB 124 restructures but does not change the effect of the statute pertaining to filling Senate vacancies which have seats with longer terms and may need to fill vacancies with a special election under certain circumstances.

HB 124 can be found here.