The Race That Could Hold the Senate Hostage

Sen. Lisa Murkowski won a small victory last week in her battle to win re-election as a write-in candidate in her home state of Alaska. The state's Supreme Court ruled that voters would, in certain cases, be able to view a list of write-in candidates at their polling places. The voters would have to request the list, which would not include party affiliations.

Last week, the Alaska Republican Party had joined with its Democratic counterpart to sue the state for its decision to provide write-in lists to voters who asked for them, the assumption being that such a practice would aid Murkowski's bid.  Despite her Republican registration and the fact that she claims she will continue to caucus with Republicans if she returns to Washington next year, the Alaska Republican Party supports the state's official nominee, Joe Miller, who defeated Murkowski in the August primary.

In reality, though, write-in lists may be somewhat irrelevant to the race. Since a conservative Anchorage radio host named Dan Fagan urged his listeners to file as write-in candidates as an act of "civil disobedience," the state's write-in list has swelled to about 160 candidates. Murkowski's name would presumably be randomly placed among the other write-in candidates', meaning that viewing a list would likely have little effect on voters who were not already planning on voting for Murkowski.

In many ways, though, the case may presage legal chaos to come.

Murkowski's extremely viable write-in candidacy--and her status as an incumbent ousted by a more extreme member of her own party--make this race virtually unprecedented in U.S. electoral history. This lack of precedent, however, also guarantees post-Election-Day legal challenges. If the vote counts are as close as many expect, this race could stall the formation of a Senate majority and potentially even wind up in the U.S. Supreme Court.

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On November 3, when most Senate candidates will be hosting victory parties or giving concession speeches, Alaska's Senate race will be far from over. According to Randy Ruedrich, chairman of the state's Republican Party, anywhere from 30 to 40 percent of Alaska's votes could be absentee or provisional. These votes will be counted by November 18. It's possible one candidate will gain a lead of five or six percentage points before the 18th, prompting the other candidates to concede. But in a three-way race that has been polling very close (though polling in Alaska is notoriously unreliable), a five or six point lead with only 60 to 70 percent of ballots counted is unlikely.

The Division of Elections will not sort through write-in ballots (deciding which ones were cast for Murkowski) unless they would account for enough votes for her to win, or unless the total of write-ins comes within 1 percent of the candidate who receives the most votes. After all the votes are counted if a candidate is within half a percent of an opponent, the state will fund an automatic recount. If the margin is over half a percent, the losing candidate can request a self-funded recount.

In the case of a very close race, regardless of recounts, it is extremely likely that candidates or parties will sue, further prolonging the decision process. Both parties will have volunteers closely monitoring polling places for any signs of impropriety. And one of the key legal questions will be what exactly counts as a vote for Murkowski.

The Division of Elections has said that it will not require perfect spelling of Murkowski's name but will instead use a standard of voter intent. This protocol is obviously ambiguous and, since the state does not have many precedents for write-in campaigns of this seriousness and scale, open to challenge. If "Lisa" doesn't count, then would "Lisa M."? Given that there's a Lisa M. Lackey on the write-in list, this iteration might not be sufficient.

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Nicole Allan is a former senior editor at The Atlantic.

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