Miller appeals ruling on Senate write-in vote lawsuit

SENATE: His challenge of write-in Murkowski ballots will continue.

December 13, 2010 

Republican Joe Miller is taking his challenge to Alaska's U.S. Senate race to the state Supreme Court.

Miller filed his appeal Monday, three days after a lower court ruled against his lawsuit challenging how the state counted write-in ballots for his rival, Sen. Lisa Murkowski. Arguments are set for Friday.

"We have consistently asserted that the law should be followed strictly," Miller said in a statement. "The fact that the legislature stated that there should be 'no exceptions' to the ballot counting method is what, in our view, should govern this matter."

Murkowski ran a write-in campaign, the likes of which Alaska has never seen, after losing the GOP primary to Miller. The state, relying on case law, used discretion in determining voter intent, allowing for ballots with misspellings to be counted toward Murkowski's tally.

Unofficial results showed Murkowski leading Miller by 10,328 votes, or 2,169 votes when ballots challenged by Miller's campaign were excluded. Murkowski has declared victory.

But Miller and his attorneys argued that the law calls for write-in ballots to have the ballot oval filled and either the candidate's last name or the name as it appears on the declaration of candidacy written. Spelling, they contended, matters.

Judge William Carey disagreed, saying that if the Legislature intended for a candidate's name to be spelled perfectly to count, the law would have stated that. Miller's campaign said the ruling "essentially modifies state law."

Carey also dismissed as unfounded questions raised by Miller about voting irregularities.

On Friday, Murkowski called on Miller to "end this" and concede. On Monday, Miller spokesman Randy DeSoto reiterated the campaign's position that a hand recount is needed to ensure a "fair and accurate" tally.

In their appeal notice Monday, Miller's attorneys said Carey erred in giving state officials the "power to impact the outcome of elections by determining that write-in ballots are 'close enough' to be counted," rather than strictly adhering to the law.

They also said Carey was wrong to deny Miller the chance to further investigate concerns about similar-appearing signatures on ballots and precincts where election workers failed to mark whether they'd gotten voters' identification. And they said he was wrong in "constructively denying" to hear Miller's new concerns that convicted felons wrongfully may have been allowed to vote.

U.S. District Judge Ralph Beistline halted certification of the race until the issues raised by Miller had been resolved. The state wanted Beistline to make any continued hold contingent upon Miller filing an appeal by the end of the day Monday. Assistant Attorney General Margaret A. Paton-Walsh said the state intends to ask Beistline as early as Saturday to lift the hold on certification and toss any outstanding claims Miller made in federal court. Miller's attorneys opposed the expedited briefing schedule. They said it supposes the Supreme Court will rule Friday and they said it would "unfairly prejudice" Miller to the high court and public "to suggest or assume that this Court believes the Supreme Court will rule against him on all counts."

The state responded by saying Miller's goal seems simply to be delaying certification.

Miller initially sued in federal court but Beistline said the state courts were in a better position, "at least initially," to "apply Alaska law and to determine who won this election." However, he also said he would "remain available to review any constitutional issues that may exist once the State remedies have been exhausted."

The state hopes for a final ruling before year's end.

Attorneys for the state and Murkowski have sought a speedy resolution, saying it's critical to ensure that Alaska's interests are fully represented in the Senate. Swearing-in of senators for the new term is set for Jan. 5.

Murkowski attorneys also argue that Murkowski's seniority is at risk if her race isn't certified by then.

An associate historian for the Senate, Betty Koed, said the Senate could seat Murkowski pending the results of the election. She said seniority issues, like committee assignments, would be left to party leadership.

Don Stewart, a spokesman for Senate Republican Leader Mitch McConnell, said McConnell hasn't commented on the possibilities. "There are a couple ifs between here and there," he said.

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