The Race That Could Hold the Senate Hostage

If Alaska's Senate race is as close as expected, it could take months of legal wrangling--and possibly even an intervention by the Supreme Court--to resolve

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.

Tom DeLay's district in Texas tackled similar questions when a write-in candidate named Shelley Sekula-Gibbs ran for DeLay's seat after the House Majority leader resigned in 2006. In evaluating write-in ballots, a bipartisan panel ended up compiling a 28-page list of accepted spellings of Sekula-Gibbs' name, including everything from Snelly Gibbr, to ShelleySkulaGibbsssss, to Shelly DraculaCunt Gibs.

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This is the kind of nitty-gritty election procedure that can lead to never-ending court battles that exhaust observers and bleed candidates dry. After the 2008 elections, Minnesotan Senate candidates Al Franken and Norm Coleman began an eight-month legal battle and protracted recount. Only in July 2009 was Franken sworn into the Senate.

And most notorious of all recounts, of course, is Bush v. Gore. The 2000 presidential election resulted in one of the most bitterly partisan Supreme Court cases of all time. After George W. Bush won the popular vote in Florida by a very narrow margin, the state completed an automatic machine recount. Bush's lead shrank significantly, so Al Gore requested a manual recount in four key counties. From here, the case devolved into a battle between the Florida Supreme Court and the U.S. Supreme Court, with the latter eventually splitting along partisan lines and ending the state's recount efforts.

The legacy of that case is strong enough, says Nathaniel Persily, an election law expert at Columbia Law School, that the U.S. Supreme Court probably isn't "chomping at the bit" to get involved in another recount. The real question, Persily says, is whether a hypothetical Alaska legal battle transcends state law and raises federal questions.

The Supreme Court looks at cases "when circuits are split or when it's an issue of extremely high importance," Persily says. "There have been plenty of election cases that have dealt with Senate races that never made it to the Court," including the Coleman/Franken case. "If control of the Senate is in doubt, I would think that they would be more likely to take the case. If it's not, then I think it's unlikely."

Many steps are required, however, before the Supreme Court would find itself weighing a recount case from Alaska. Someone would have to appeal the case to the Court, which means someone would have to have filed a federal case, which means someone would have to have filed a state case, which means the race would need to have been close enough to prompt legal action.

And a federal case has been filed already, although it likely won't be the case that holds Alaska's results in the balance: supporters of Joe Miller have responded to the state Supreme Court's write-in decision by filing suit against the state in federal court, alleging Alaska has changed its election laws without consent of the Department of Justice.

So starting at midnight Eastern Time tomorrow, when the Alaska polls close, keep an eye on the state's trickling returns. Voters could hand a decisive win to one of the three candidates, or they could spark a historic legal battle that holds the Senate hostage for weeks or even months.