Court OKs limited access to write-in list

October 29, 2010 

Voters who need help spelling the name of a write-in candidate and who want to see a list of those certified candidates can look at the list under limited circumstances, the Alaska Supreme Court ruled Friday afternoon.

The list, though, won't include the party affiliation of the candidates on it, and it can only be handed out to those voters who specifically ask for help in voting for a write-in candidate, the Supreme Court ruled in a decision issued late Friday afternoon.

"There will be some circumstances where providing the list will not be necessary to address a voter's request for assistance and other circumstances where providing the list will be necessary to address a voter's request for assistance," the court said in its ruling.

"For example, if a voter requested the correct spelling of a specified registered write-in candidate's name, it would be unnecessary to provide the entire list to that voter in order to provide the requested spelling assistance."The court also said the Division of Election won't have to segregate the ballots of those voters who reference the list, a change from its previous order.

The list has grown from one to eight pages, swelled in part by an Anchorage radio talk show host who on Thursday urged people to submit their own names as certified write-in candidates by the Thursday deadline. More than 150 people are now listed.

Both the Alaska Democratic Party and the Alaska Republican Party brought suit earlier this week to keep the list from polls, arguing it had never been done before and that the Division of Elections violated its own regulations in publishing it. They argued the list crossed the line from assistance to voter information about write-ins, which state regulations prohibit at the polls.

At least one of the four Supreme Court justices who heard the case suggested in court Friday that it was no different that the pocket guide in the voter guide produced by the state Division of Elections, or a newspaper list that some people take to the polls.

Both political parties thought they'd won the case Wednesday morning when the lower court judge told the state Division of Elections to remove the list from voting places statewide. Democrats first complained about the list when a voter in Juneau noticed it had been posted in an early voting location.

The state Division of Elections argued Friday that all voters who show up with the intent to vote for a particular candidate should be able to do so with the confidence their vote will be counted, said its lawyer, Margaret Paton-Walsh. If they need help, "that assistance should be available," she said. That -- and the anticipation there'd be an unprecedented number of questions about Sen. Lisa Murkowski's write-in bid -- led them to distribute lists to the polls.

"This case is about assistance to voters," Paton-Walsh said. "Only voters who come to the poll workers and ask for assistance in casting a write-in vote may be shown the list."

The state also disputed the suggestion by the two political parties that the list somehow constitutes electioneering, campaigning or persuading. There's nothing "suspect, sketchy or weird" about the list, she said.

"They're just names on a piece of paper," Paton-Walsh said, adding that it is a much longer list now. "The voter still has to pick a candidate. The list doesn't tell them which candidate to pick. It merely helps them identify the candidate that they want to vote for."

Sen. Lisa Murkowski and the Alaska Federation of Natives joined the state in its fight to keep the lists at the polls; they were seen as benefiting her candidacy by giving voters a reference tool for her write-in bid.

But in court Friday, her lawyer, Scott Kendall, said that the campaign did not request the lists, although he said the campaign's position is that they're the most reasonable way of helping voters who ask for assistance in spelling the name of a write-in candidate.

Kendall pointed out that there were just 63 requests for help out of the estimated 10,000 people who've cast votes so far. That's just one-half of one percent of the electorate that needs help, he said.

"Our campaign position has always been that the more voters that get to vote their intent the better, the better for everyone," he said, in response to a question from Justice Daniel Winfree. "The better for Lisa Murkowski, certainly, but the better for Alaska and the better for democracy."

He added that the campaign did not object to leaving off party affiliation, which the court said Friday should not be included, because that label constitutes information, not assistance.

Both political parties originally argued that a list directly violated a state regulation that forbids allowing any information about write-in candidates at the polling place or within 200 feet of its entrance, a position that State Superior Court Judge Frank Pfiffner agreed with Wednesday when he blocked the list from polls.

After Pfiffner blocked the list, the Division of Elections appealed to the Supreme Court, which made the decision later to allow a modified version at the polls. It blocked Pfiffner's ruling from taking effect while the high court further considered the appeal heard Friday morning in court.

Thomas Daniel, an attorney for the Alaska Democratic Party said during that hearing that if the Division of Elections thinks it needs to revisit its regulations, it should do so -- but not without public comment, and not on the eve of the vote.

"There is arguably no area of law where strictly following the rules is more important than in elections, or else public confidence is eroded and gives way to legitimate concerns about political favoritism," Daniel said.

Republicans continued with their argument that the list harms the primary process. It's an "admitted inequality" that the people who won primaries get to be on the ballot, said Kenneth Kirk, the attorney for the Alaska Republican Party.

"There's a reason for the primary system," Kirk said. "The primary system makes it easier for dark horses, for people who don't have a lot of money but a lot of time and are willing to put in the effort, to have a shot. It makes it less likely that people can win a sit with a small plurality, so they're more likely to try to build consensus with people in their district or state."

But Kirk also acknowledged that things have changed since Thursday, thanks to the dozens of new additions to the certified write-in list. The list is admittedly less helpful to a specific candidate when it includes so many, Kirk said.

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