Alaska's Democratic and Republican parties went to court Monday to force the state to stop providing voters with a list of certified write-in candidates at the polls, one of the first salvos in what is expected to be a contentious vote count in the U.S. Senate race.
The two political parties may not agree on much, but it was clear Monday in court that they both fear the effect of Sen. Lisa Murkowski's write-in campaign on their own candidates' fortunes in the Nov. 2 election.
The state Division of Elections has been providing early voters who ask for assistance a list of all write-in candidates, and in one case, had actually posted the list at an early-voting location in Homer.
Both political parties say the lists, which have been distributed to polling places statewide, are a considerable change in the state's previous write-in practices. In her write-in bid, Murkowski is taking on Republican Joe Miller and Democrat Scott McAdams.
"Our position is pretty straightforward," Thomas Daniel, a lawyer for the Alaska Democratic Party, said in court Monday. "What we're asking is they simply comply with their own regulations."
State Superior Court Judge Frank Pfiffner asked both the state and the Murkowski campaign to explain by noon today why he should allow the state Division of Elections to continue providing a list of write-in candidates to voters who ask for one.
An attorney for the Division of Elections, Margaret Paton-Walsh, acknowledged Monday that the state has never provided write-in lists before at polling places -- although she also pointed out that the state's write-in laws date only to 2000 and are relatively untested.
Pfiffner was skeptical of the Division of Election list, saying the state's move "troubles me quite a bit" in light of a state regulation that forbids allowing any information about write-in candidates at the polling place or within 200 feet of its entrance.
He said he'll have to weigh whether it is more harmful to allow the state to continue offering voters the list, or yanking it from polling places and calling into question the early votes of perhaps thousands of Alaska voters.
Paton-Walsh said the Division of Elections officials decided to distribute the list because they were anticipating more questions than usual at the polls about the write-in process and they believe they have a legal obligation to assist voters who ask for help.
Some states with a registration requirement for write-in candidates go as far as to post the names of those candidates in polling places, Paton-Walsh said.
"This is purely designed to provide assistance to voters and there is no advocacy aspect to this list," she said. "The write-in list is shown only to voters who request assistance with a write-in candidate."
The list is incomplete, though, argued Daniel, because write-in candidates have until five days before the election to be certified and the list could change between now and that time.
Kenneth Kirk, who represented the Alaska Republican Party, argued that the lists cheapen an established primary election process designed specifically to narrow the list of candidates. That was a swipe at Murkowski, a fellow Republican who launched her write-in bid after losing the August primary to Miller and who has drawn criticism from his supporters for saying before the primary that she would honor the decision of GOP voters and stand with the party nominee.
"Pretty soon, the advantages of having a primary are lost," Kirk said. "It significantly diminishes the advantage to the primary winners of actually having their names on the ballot. If we take that away by allowing write-in candidates to be listed ... we've made it that much easier for people to just skip the primary entirely."
Kirk argued that the situation is especially egregious when the candidate is as well-connected and powerful as Murkowksi, a sitting senator and the daughter of a former senator, he pointed out.
"All the sudden the rules are changed to advantage her, and I'm not suggesting that's actually what the Elections Division intends to do, but it certainly allows for the appearance of impropriety," he said.
'AN IMPARTIAL TOOL'
A lawyer for the Murkowski campaign, though, called the list an "impartial tool."
Only the voters who really feel they need the list would actually ask for it, said Murkowski attorney Scott Kendall. It won't change whom they vote for, just ensure that people who are uncertain about the spelling of a candidate's name can be assured their vote will count, he said.
"What they can't argue, because it's untrue, is that the intent of the voter is changed by this list," Kendall said. "It gives them assistance just as handicap-accessible ramps can be of assistance."
Democrats initiated the complaint after a voter at an early-voting location in Homer reported seeing a list of write-in candidates posted inside a polling booth. Another voter who voted early at the Chugiak Senior Center asked for instructions on how to cast a write-in ballot; the poll worker pointed directly to the write-in bubble and said it was where the voter could write in "Lisa Murkowski."
In a press conference before the hearing, Alaska Democratic Party Chair Patti Higgins said the write-in list opens a door to providing murky so-called "help" to voters, including pointing them in the direction of one candidate or another.
"It's in all the voters' best interest to have a fair and legal election," Higgins said. "If you can't trust in that, then everything is in doubt."
Also before the hearing, Alaska Republican Party Chair Randy Ruedrich called it a "flawed decision" to provide the lists and one that "threatens the integrity of the election process and the legitimacy of every candidate elected."
The two political parties will have until 4:30 p.m. Tuesday to respond to filings from the state and the Murkowski campaign, and Pfiffner is expected to issue a ruling Wednesday morning. Both Miller and McAdams were notified of the proceedings but are not parties in the legal action.