JUNEAU -- Republican Joe Miller calls his court challenge to Alaska's U.S. Senate race results an "uphill battle."
But Miller believes it's worth fighting. He said he want to ensure the law is upheld -- at least the law as he sees it -- and that there's a clear process for the state's handling of this and future elections.
How long he keeps fighting could well be determined by the Alaska Supreme Court.
Its decision is expected soon in Miller's appeal of a lower court ruling to toss his challenge on how the state conducted the vote count and handled write-in ballots for Sen. Lisa Murkowski for the Nov. 2 election. Miller has sought to have the votes of thousands of Alaskans declared invalid, throwing out Murkowski's win in the process.
Miller argues the state was wrong to use discretion in tallying votes for Murkowski and should be held to a strict reading of a law that calls for write-in ballots to include a candidate's last name or the name as it appears on the declaration of candidacy. That means that ballots with misspellings should not be included.
The state has pointed to precedent in case law in defending its use of discretion in determining voter intent. The state also says Miller isn't reading the statutes correctly.
If the high court rules against Miller, he would have the option of continuing his pursuit of federal claims in a separate lawsuit filed in U.S. District Court in Anchorage. Miller's spokesman repeated Monday that Miller is proceeding "one step at a time."
U.S. District Judge Ralph Beistline said he'd give Miller 48 hours from the time the state Supreme Court rules to plead his case, if he wishes to do so. Beistline said last month that state courts were in a better position, "at least initially," to "apply Alaska law and to determine who won this election." He has said he would "remain available to review any constitutional issues that may exist once the State remedies have been exhausted."
Beistline has put a hold on certifying the results of the race, and that must be lifted for a senator to be sworn in with the new Congress on Jan. 5.
Unofficial results showed Miller behind Murkowski by 10,328 votes, or 2,169 votes when ballots challenged by Miller observers are excluded. Miller believes the numbers are far fuzzier: He has raised questions about voting irregularities that his attorneys say he wasn't given time to fully investigate. And his campaign believes those could change the outcome of the race or be sufficient to merit a hand recount.
"We certainly recognize that it's an uphill battle. I mean, this race from the very beginning, from the primary to the general, has been an uphill battle," Miller said last week, apparently contradicting polls, including his own, that showed him initially with a wide lead over Murkowski when she declared herself a write-in candidate. "But the fact is, this is about the integrity of the election, making sure we've got a clear process that we can apply, not just in this election but in future elections, making sure that the rule of law is upheld.
"And that really is the goal here," he said. "Once that's done, obviously, we're going to sit back and respect whatever the numbers are. But that hasn't happened yet."
Murkowski's campaign is hopeful the state will certify the vote results as early as this week. If the matter is dragged out, though, Gov. Sean Parnell said he has sought legal advice on his options, including whether an interim appointment might be necessary, to ensure Alaska has full representation when the new Senate term begins.