Federal judge says Alaska can certify Senate election

Action could be reversed if Miller eventually wins in court.

December 14, 2010 

JUNEAU -- Alaska should have a U.S. senator in place by the time Congress convenes in early January, even if all of the legal wrangling between the two rivals contesting the seat isn't resolved by then, a federal judge said Tuesday.

U.S. District Judge Ralph Beistline said in a written order that certification of the race between Republicans Joe Miller and Sen. Lisa Murkowski doesn't necessarily mean the end of the court battle. He said it's possible that the certification could be revoked if it was done in error and suggested the sides submit legal briefings on that issue.

Miller believes the state mishandled the ballot count in the Nov. 2 election and has challenged Murkowski's apparent victory in court.

But Beistline, who has halted certification of the race pending Miller's legal challenge, said Tuesday that one of them should be in place in the Senate by Jan. 3, even if that means later having to replace that person when all legal disputes are eventually resolved. Murkowski's campaign hailed this position and expressed hope that Beistline could resolve the matter before Christmas.

Murkowski already has declared victory, and attorneys for her and the state have sought a speedy resolution that would allow for the race to be certified before the new Congress begins Jan. 3. Members are sworn in Jan. 5.

Beistline said that if Miller loses his appeal in a separate case to the Alaska Supreme Court, he'd let Miller plead his case on any outstanding issues in the federal court. The state Supreme Court is hearing arguments Friday.

Miller is appealing a decision last Friday by state Judge William Carey to toss Miller's challenge of the state's handling of the election and its counting of write-in ballots for Murkowski. Murkowski ran a write-in campaign, the likes of which the state has never seen, after losing the GOP primary to Miller in August.

Carey also found no support for concerns Miller raised about voting irregularities, though Miller's attorneys argue they weren't given time to investigate them further.

The state, relying on rulings in past court cases, used discretion in tallying write-in ballots for Murkowski, allowing ballots with misspellings to be counted for her. But Miller maintains that spelling matters and that the law calls for the candidate's name or name as it appears on a declaration of candidacy to be written in.

While acknowledging the high court has placed "great weight" on voter intent, Miller's attorneys wrote in their appeals brief, filed Tuesday, that there's no objective way to ascertain voter intent outside of a strict adherence to the law.

Unofficial results showed Murkowski ahead by 10,328 votes, or 2,169 votes when ballots challenged by Miller's campaign were excluded. Carey said that regardless of his reading of the law, Murkowski won.

Miller's attorneys took issue with this, too, saying in part that this assumes Miller observers "perfectly challenged all ballots that were invalid due to misspellings or other issues." They reiterated the campaign's claim that the state's decision to move up the start of the write-in ballot hand count prevented it from properly preparing observers. Murkowski's campaign hasn't made a similar complaint.

Some of the ballots challenged by Miller observers included "Murkowski, Lisa," which the campaign later conceded should not have been contested.

Beistline last month halted certification of the race, pending resolution of the concerns raised by Miller.

Miller spokesman Randy DeSoto said Tuesday that Miller's team is taking its legal challenges "one step at a time," though he said Miller is willing to take his case to the U.S. Supreme Court if necessary.

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