Judge rules against Miller in suit over Senate election

APPEAL? U.S. Senate candidate can still take case to Alaska Supreme Court.

December 10, 2010 

A Superior Court judge has ruled on all counts against Joe Miller's challenge of Alaska's election for U.S. Senate. The judge on Friday found the state tallied the ballots properly and there was no evidence for Miller's suggestions that fraud tainted the election.

The state judge, William Carey of Ketchikan, gave Miller until early next week to appeal to the Alaska Supreme Court. The timing is critical because a federal judge has blocked certification of Sen. Lisa Murkowski as the winner until the lawsuit is settled.

The newly elected Senate is to be sworn in Jan. 5, and state officials have argued that Alaska will be left with just one senator, Democrat Mark Begich, until the election is certified. Murkowski argues a delay could cost her seniority and top positions on committees.

Miller campaign spokesman Randy DeSoto said the decision on whether to appeal is "under advisement." DeSoto said by e-mail that Miller wants a hand recount and for the state to toss out Murkowski ballots that he disputes.

"When we've ensured that these issues have been addressed, then we'll have an accurate count, and if Lisa Murkowski's tally is greater than Joe's, then he will certainly honor that result," DeSoto wrote.

Murkowski issued a statement Friday saying it's time for Miller to give up after decisively losing in court and trailing by more than 10,000 votes more than a month after Election Day.

Judge Carey dismissed Miller's claim that misspelled write-in votes shouldn't count for Murkowski. Even if Miller had succeeded in tossing out the votes disputed by his ballot observers, Murkowski would still win by more than 2,000 votes.

But Miller has hopes that a hand recount would reveal more votes for him. He's also claimed that Murkowski benefited from election irregularities. He's alleged some Murkowski ballots were written in the same handwriting. Another of his charges is that people may have been allowed to vote without showing identification.

But Judge Carey on Friday dismissed the suggestion of fraud. "Nowhere does Miller provide facts showing a genuine issue of fraud or election official malfeasance," he wrote.

MISSPELLED BALLOTS OK

Much of the court battle was over Miller's claim that the state shouldn't have counted misspelled ballots. Elections Director Gail Fenumiai has said her standard for accepting ballots was "if I can pronounce the name by the way it's spelled."

The judge found that was OK, saying Alaska Supreme Court decisions have found that the state's emphasis should be on making sure voters aren't disenfranchised. He supported the state's reliance on "voter intent" in the Senate race.

Miller argued state law doesn't allow misspelling or state judgments of what the voter intended when writing in a candidate's name. The law says write-in votes should be counted if the name "as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate, is written in the space provided."

The judge focused on the fact that the word "appears" is a part of a definition.

"The definition of 'appears' in this context does not require perfection or precision, but rather a close, apparent approximation known to the viewer upon first look ... if exact spellings were intended by the legislature, even with respect to the most difficult names, the legislature could have and would have said so," Carey wrote in his ruling.

Carey also disagreed with Miller's argument that Murkowski's own effort during the campaign to convince voters to spell her name right confirms that's required.

"He seems to suggest that a voter who really wanted to vote for Murkowski would have no excuse for getting the spelling of her name wrong. But of course there are many reasons why this might happen, whether they involve a village elder who had grown up speaking his or her Native dialect, a recently naturalized citizen, a person with any one of a number of disabilities, or someone who just mistakenly left off a letter in his or her chosen candidate's name," the judge wrote.

Murkowski launched the write-in campaign after losing in the August Republican primary to Miller, who ran on a tea party platform with the backing of former Gov. Sarah Palin. The state Republican Party has urged Miller to concede, but South Carolina Sen. Jim DeMint is helping fuel Miller's legal fight with money from his political action committee, the Senate Conservatives Fund.

Miller campaign spokesman DeSoto sent out a statement after the judge's ruling, saying that the purpose of Miller's lawsuit is to "ensure that the integrity of the vote is upheld."

"The Miller campaign believes that every valid write-in ballot should be counted, but not those that fail to meet the standard established by the state legislature. Additionally, the core American values of equal protection under the law and fundamental fairness in this election require that the Miller ballots are counted and reviewed in the same fashion as Lisa Murkowski's, by hand, and that the count includes only those who are eligible to vote," DeSoto wrote in an e-mail.

State law requires a hand count of write-in ballots because a person has to look and see what name the voter wrote in. All other ballots are counted by computerized voting machines that read the oval filled in next to candidate names.

It's not entirely clear how much time Miller has to decide whether to appeal to the Alaska Supreme Court. Judge Carey's ruling said his decision to throw out Miller's lawsuit wouldn't take effect until "Tuesday, Dec. 13" to allow time for an appeal.

But Tuesday is the 14th, not the 13th.

FIGHT IN FEDERAL COURT TOO

The state will ask Federal District Judge Ralph Beistline to lift his order blocking certification of the election. Beistline said he stopped the certification to allow the state court issues to be settled. Miller is also making arguments on federal law.

Lawyers for the state and Murkowski filed a flurry of motions in federal court on Friday urging Beistline to put the arguments on a fast track. They argued it is crucial for the election to be certified by the time the Senate convenes on Jan. 5.

Acting Alaska Attorney General Richard Svobodny claimed in a court filing that Miller is trying to slow the process and is making "entirely speculative allegations."

"If certification is enjoined beyond the convening of the new Congress in January, the state will suffer significant and immeasurable harm through the loss of full representation in the Senate," Svobodny wrote in a motion to federal court.


Find Sean Cockerham online at adn.com/contact/scockerham or call him at 257-4344.

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