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The Alaska Supreme Court will hear Joe Miller's argument this afternoon that his loss to Sen. Lisa Murkowski came in a tainted election. It's Miller's last chance to challenge the results in state court.
Murkowski campaign manager Kevin Sweeney said he thinks the court will likely issue its ruling tonight. The court made clear that it wants to resolve the issue quickly. But the ruling could also come over the weekend or sometime next week.
Miller's appeal to the Alaska Supreme Court comes after a state Superior Court judge tossed out his lawsuit. Judge William Carey ruled last week that the state was right to consider "voter intent" and count misspelled write-in ballots for Murkowski.
Carey also found there was no evidence for Miller's suggestion of fraud in the election.
Miller will be nearly out of options if he loses in the Alaska Supreme Court. His only remaining alternative would be a last-ditch effort in federal court.
U.S. District Court Judge Ralph Beistline earlier ruled that the state courts should decide Miller's challenges of Alaska election law. But if the Alaska Supreme Court rejects his arguments, he will have 48 hours or until Monday morning, whichever comes later, to argue that the federal courts should take up any remaining issues, according to an order by Beistline.
Beistline blocked certification of the Senate election until the state court issues were settled. If Miller loses in Alaska's high court, Beistline wrote that he would decide "as soon as possible" on lifting his order blocking certification.
The newly elected U.S. Senate is to be sworn in Jan. 5 and state officials have argued that Alaska would be left with just one senator, Democrat Mark Begich, if the election isn't certified soon.
Beistline wrote that the election should be certified by then, even if the legal fight is not over.
Miller has indicated that he might fight all the way to the U.S. Supreme Court.
'LEEZA MURCOWSKI'
Miller's appeal to the Alaska Supreme Court argues he wasn't given enough time to produce more evidence of fraud and that the judge dismissed his data in favor of an assumption that election workers weren't breaking the law.
His appeal also maintains that the state Superior Court judge was wrong to rule that misspellings of Murkowski should count. Miller's lawyers argue that it's necessary to throw out some votes in order to ensure the integrity of the election.
"Nothing in the statute suggests that the legislature intended to delegate to a State official the awesome power to determine which write-in votes should count," Miller lawyer Thomas Van Flein argued in the appeal.
The Legislature awkwardly phrased the law in question. It says that "a vote for a write-in candidate ... shall be counted if the oval is filled in for that candidate and 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."
Judge Carey found the fact that the word "appears" is in the law is an indication that perfect spelling isn't required. Carey ruled that the Legislature would have written a requirement for exact spelling into the law if that's what it wanted.
Lawyers for the state are arguing that tossing out ballots where voters were clearly trying to write "Lisa Murkowski" would violate their rights.
"It is hard to imagine how a voter who wrote 'Lisa Murcowsky' or even 'Leeza Murcowski' might have been trying to vote for anyone else," Assistant Attorney General Joanne Grace wrote in the state's motion to the Alaska Supreme Court.
The Alaska Federation of Natives, the state's largest organization representing indigenous people and which heavily supported Murkowski in the election, also filed a motion with the Supreme Court. The AFN argued Miller's demand would violate federal voting rights law by disproportionately hurting those Alaska Natives and other minorities for whom English is not their first language.
Miller is behind Murkowski by more than 10,000 votes. Even if the Supreme Court did agree to toss out all the votes that were challenged by Miller's ballot observers, Murkowski would still beat him by more than 2,000 votes. The state argues his lawsuit is pointless because Murkowski will win no matter what.
But Miller hopes the courts will force a hand recount in which he will pick up additional votes. He's also making suggestions of election fraud that he hopes will take away votes counted for Murkowski and put him on top when it's all over.
Miller has alleged that some Murkowski ballots were written in the same handwriting and that felons wrongfully were allowed to vote, a charge state elections officials dispute. Miller has also questioned whether people were allowed to go ahead and vote without showing identification to state elections workers.
The justices will hear argument on the case beginning at 1:30 p.m.
Lawyers for Miller and the state will each have half an hour to present arguments backing up the motions they've filed with the court. Murkowski's lawyers have 10 minutes.
The arguments will be broadcast live over the Internet by KTUU Channel 2 television at ktuu.com.
Find Sean Cockerham online at adn.com/contact/scockerham or call him at 257-4344.
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