The lawyer for Joe Miller argued to the Alaska Supreme Court on Friday that Sen. Lisa Murkowski hasn't won the election despite leading Miller by over 10,000 votes more than a month after the polls closed.
Lawyers for the state and Murkowski countered that Miller is denying reality and trying to overturn the will of the voters. The state Supreme Court justices took the matter under consideration after hearing arguments for nearly two hours.
The justices asked many wide-ranging questions throughout the hearing. Murkowski campaign manager Kevin Sweeney said afterward his best guess is that the ruling will come over the weekend.
Both the Miller and Murkowski camps declared themselves happy with how the arguments were received.
Miller attended the hearing, watching impassively as he sat between his Washington, D.C., lawyer, Michael Morley, and his Alaska lawyer, Thomas Van Flein. Miller said afterward it was clear to him the justices were looking closely at the issues.
"I thought there were very good inquiries from the court. They recognized this is not a frivolous case, this is one that requires some consideration," Miller said.
Sweeney said he didn't hear anything in the arguments to make him think the justices would overrule state Superior Court Judge William Carey's ruling last week tossing out Miller's lawsuit.
The arguments in court Friday focused mostly on Miller's contention that the state was wrong to count write-in ballots for Murkowski that were misspelled.
"The statutes aren't supposed to be massaged to allow as many ballots in as possible," Morley argued.
Justice Dana Fabe asked him whether, if a voter misspelled Murkowski's name by one letter, isn't it clear that voter really meant to voter for Murkowski. The votes challenged by Miller's ballot observers commonly had a letter or two misspelled.
Morley said that spellings worse than that were counted, and voter intent isn't the standard the court should be using. "The issue is, regardless of what the voter intended, that is clearly not the candidate's name as required," Morley said.
Alaska law requires correct spelling so a state elections official doesn't have the awesome power to decide elections by interpreting who voters meant to support, he said.
PERFECT SPELLING REQUIRED?
Assistant Attorney General Joanne Grace argued for the state that the voters made it clear they didn't want Miller to be Alaska's next U.S. senator and he is trying to win on a technicality.
Grace said the law does not say anything about perfect spelling. Miller's strict standard goes against how elections are decided in Alaska, she said, where "voter intent" is the key question in judging ballots. Court rulings have made that clear, she said.
"(The law) must be construed liberally to prevent disenfranchisement of voters and to uphold the will of the electorate," Grace argued to the justices.
Even if all the votes challenged by Miller ballot observers are thrown out, Murkowski would win by over 2,000 votes. And Miller's lawyers conceded Friday that not all those challenges were valid. Miller's legal team has disavowed the challenges of ballots that appeared to be spelled correctly, those written "Murkowski, Lisa" and "Lisa Murkowski (R), with the "R" standing for Republican.
But Miller is alleging a series of other election irregularities that he argues should take additional votes from Murkowski. Miller hopes to pick up votes for himself by asking the courts to order a hand recount of the election.
Miller conceded after the arguments Friday that he's waging an "uphill battle." But he doesn't accept that Murkowski holds a 10,000-vote lead.
"That number is really open to dispute. Right now we know that there are maybe 2,000 uncontested votes (in Murkowski's lead.) That number is even in question. If you listen to the arguments today there are a number of different factors that blend in to what the final number may or may not be. We don't know what that is," he said.
Miller is alleging that some of the Murkowski ballots appear to be written in the same handwriting and that felons were wrongfully allowed to vote, a charge the state disputes. Miller is additionally citing over 5,500 examples where election workers didn't check a box saying they'd verified the voter's identification.
The state Superior Court judge who tossed out Miller's lawsuit last week ruled that he'd provided no evidence of misconduct by elections workers. But Alaska Supreme Court Justice Daniel Winfree seemed more open to Miller's claim. Winfree said that it can't be assumed election workers simply forgot to check the box showing that they'd verified the identification of voters.
But even if those votes were thrown out, there's no way to know who they were for. The most Miller can hope for is the state to toss out ballots proportional to the number cast for each candidate in the precincts where this happened.
Murkowski's lawyer suggested to the justices that there is no way for Miller to overcome Murkowski's lead. But the justices didn't appear convinced by that, saying none of the lawyers has clearly laid out the math showing it is impossible.
It's particularly vital for Miller to win his argument that the state shouldn't have counted misspelled ballots, though. And the justices were asking skeptical questions about that.
Alaska law says "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."
Chief Justice Walter Carpeneti said Miller's interpretation of the law seems to suggest that the state should have only accepted write-in ballots that read "Murkowski Lisa." That is how her name appeared on the declaration of candidacy.
Miller lawyer Morley responded that insisting voters write "Murkowski Lisa" in that order would be absurd.
"Requiring correct spelling is not absurd," he said. "It's reasonable, it's a bright line."
FILLING IN THE OVAL
Murkowski's lawyer, meanwhile, was arguing her lead over Miller should be even bigger. Murkowski lawyer Scott Kendall argued that about 1,500 ballots where voters wrote in Murkowski's name but didn't fill in the oval should be counted.
He also argued that the state be forced to count about 500 ballots that say "Lisa M." Kendall maintained that Murkowski's lead should really be over 12,000 votes if the intent of the voters were taken as the true test of what to count.
"Miller's case appears to be simply an attempt to delay justice by denying reality," he argued.
Only four of the high court's five justices heard the arguments Friday. Justice Craig Stowers recused himself because he used to work for the law firm where a lawyer for Miller works.
If the Alaska Supreme Court rules against Miller, he still has a chance to argue that the federal court should take up his issues.