Miller Sues to Stop Counting of Misspelled Murkowski Votes

Invokes Bush v. Gore and says misspellings were really "protest votes"

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Joe Miller is invoking Bush v. Gore to stop the counting of some of the Alaska Senate race's write-in ballots, most of which are presumed to have been cast for Lisa Murkowski. Miller won just 35 percent of the votes, while 40 percent of voters opted to write in their choice. Alaska's election law says only ballots that have the write-in oval filled in and the words "Murkowski" or "Lisa Murkowski" can be counted for the incumbent senator. But the lieutenant governor, who's in charge of elections,  is allowing misspellings of Murkowski's name as long as "voter intent" is obvious.

In the 2000 presidential election, the Supreme Court stopped the vote recount in Florida because the state had not adopted a single standard for determining voter intent, violating the equal protection clause of the Constitution. (The court also specifically stated that the decision was not to be used as precedent.) Even if Miller's right on the legal question, one expert told USA Today's Catalina Camia, it doesn't matter if he doesn't have enough votes: "Even if you can say the legal theory is correct, he may not have the numbers. ... He won't win an election if the numbers aren't there."

  • Miller Claims Bad Spellers Really Support Him, Talking Points Memo's Josh Marshall notices. "In addition to citing Bush v. Gore, Van Flein makes an incredibly novel and I would think fairly preposterous argument. ... But Miller's lawyer has another argument. Namely, that ballots with mispellings of Murkowski's name should be interpreted not as votes for her but rather as protest votes against her." The suit says that Murkowski spent "hundreds of thousands of dollars on a "spelling bee" campaign, replete with wrist bands, pencils and tattoos, all to educate the voters on proper spelling. Why was this done? Because even Murkowski had read the law and knew that it required proper spelling -- 'No exceptions.' So protest voters were trying to send a message to the candidate." Therefore, the suit says, counting a misspelled write-in vote "effectively nullifies the protest and falsely inflates the vote for the write-in candidate," overriding voter intent.
  • Miller Is Right, Patterico argues. Alaska's harsh spelling requirements serve a purpose. "As the Al Franken recount showed, recounts are messy propositions — and depending on the standard you choose, it can sometimes be quite difficult to interpret a ballot. ... If the Alaska Legislature chose to set out clear rules to avoid such a situation, I say more power to them." As for the misspelling-as-protest argument, Patterico continues, "At a minimum, this argument throws a monkey wrench at a court trying to ignore the clear language of the law to apply a murky 'intent' standard. (See what I did there?) Whether it’s a persuasive monkey wrench is another issue."
  • The Clock Is Ticking, Andy Kroll writes at Mother Jones. "What remains to be seen is if Miller's suit is too little, too late. Alaska elections chief Gail Fenumiai says she's planning to begin counting the 92,000 write-in ballots cast in last Tuesday's Senate election... suggesting she won't wait for Miller's suit to play out. ... If Alaska election officials do follow the 'voter intent' idea, and Miller's suit fails, we could see a winner announced in Juneau, where votes are currently being tallied, in the next day or two."
  • Easy Argument for a Guy Named Miller! Don Surber writes, but Miller's "supporters had better be careful. You do not disenfranchise a person simply over a spelling error. You go by intent, not some exclusionary interpretation of the law. If more people want her as senator than him, she had better win. This is getting to be more like a girl fight every day. Settle it before January 3, guys, or Democrats will have one less vote to fear in the Senate."
  • The Suit Isn't Completely Ridiculous, Jesse Zwick reports at The Washington Independent. That protesting misspellers claim may sound silly, but "Elections law expert Rick Hasen, however, thinks that Miller’s camp does have a few good arguments it could make — the most promising being a 'due process claim' that argues the candidate’s rights were violated by a change in elections rules in the middle of the election."
  • Meanwhile, Miller's Making Gains in Absentee Ballots, Real Clear Politics's Scott Conroy reports. "After Election Day, the total number of write-in votes held a 41 percent to 34 percent lead over Miller -- an advantage of 13,439 votes. But after Alaska Division of Elections officials counted more than 22,000 of the absentee votes by late Tuesday, Miller had cut his deficit to 11,557 -- a gain of 1,882 votes." And absentee ballots from rural districts have yet to be counted. Though Murkowski did better in most of those areas, one of the uncounted districts is in the Mat-Su valley, where Miller polled well ahead.
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