Miller sues over spelling, gains votes in absentee ballot count

Kyle Hopkins,Sean Cockerham | Tribune Media Services
Election worker Connie Scott looks closely at a ballot that had too many ovals filled in for a race, while counting absentee ballots at the State Division of Elections office in Anchorage on Tuesday morning, Nov. 9, 2010.
BILL ROTH / Anchorage Daily News
Election workers count absentee ballots at the State Division of Elections office in Anchorage on Tuesday morning, Nov. 9, 2010.
BILL ROTH / Anchorage Daily News
Election workers count absentee ballots at the State Division of Elections office in Anchorage on Tuesday morning, Nov. 9, 2010.
BILL ROTH / Anchorage Daily News

Votes that misspell Lisa Murkowski's name shouldn't count as the state today tallies write-in ballots in the U.S. Senate race, Senate candidate Joe Miller said in a federal lawsuit Tuesday.

Miller is asking a judge to stop the state from making a judgment on a voter's intentions if the voter wrote in something other than "Murkowski" or "Lisa Murkowski." State law allows no leeway for other spellings, his lawsuit says.

Despite the lawsuit, the state is preparing this morning to start checking and counting the more than 92,000 write-in ballots cast in last week's election. Gail Fenumiai, the state's elections director, said she plans to start this counting at 9 a.m.

The state counted about 27,000 absentee and early votes Tuesday, according to Fenumiai, with Miller gaining on the write-in total by about 2,100 votes. At the end of the day, Miller remained 11,333 behind the write-in total.

At the beginning of the day, Miller had been trailing by 13,439 votes.

The Murkowski campaign reacted to Tuesday's lawsuit by accusing Miller of trying to toss out legitimate votes for the eight-year incumbent. "They're trying to discount as many votes as possible from Alaskans," Murkowski campaign manager Kevin Sweeney said.

Miller's lawyer, Tom Van Flein, is asking a federal judge for a hearing this afternoon.

The campaign seeks to block the state from "counting or otherwise accepting as valid any write-in ballots in which the name of the candidate is spelt incorrectly, or on which the name of the candidate is not written as it appears on a write-in declaration of candidacy," according to the complaint.


The Senate race could be decided over the next few days in Juneau, where the Division of Elections plans to open write-in ballots to see what names voters wrote in.

The state counted most of the absentee ballots on Tuesday. About 12,400 remain to be counted, Fenumiai said Tuesday night.

The state also has more than 12,200 questioned ballots to count starting Friday, depending on how many are determined eligible. But, unless there is a serious issue with the write-in ballots, it looks like Murkowski is in a good position to win.

"We remain confident that Sen. Murkowski will be heading into the write-in process with sufficient margins and will hold enough of a lead to have victory by the end of the week," Sweeney said.

Still, the Miller camp remained hopeful as Murkowski's apparent lead thinned.

"We anticipated, as during the primary election, that we would have a strong showing with the absentee voters. The Miller campaign remains cautiously optimistic as we look towards the completion of absentee vote counting and the beginning of the write-in count tomorrow," Miller spokesman Randy DeSoto said in an e-mail.


Meantime, the Murkowski and Miller campaigns have dispatched lawyers and election observers to Juneau for the write-in count.

Lt. Gov. Craig Campbell, who oversees Alaska elections, has indicated that he will accept minor misspellings of Murkowski's name as long as the "voter intent" is clear. "The courts have been very clear for the last 25 years that voter intent is important," Campbell said in an interview this week with KENI radio host Mike Porcaro. "You do not want to disenfranchise voters over a technicality."

But Van Flein, Miller's lawyer, is arguing that nothing in state law allows for that kind of discretion. "The statute does not allow for the election board to weigh 'voter intent,' 'voter feelings,' or 'voter hopes,' " Van Flein wrote in a letter to Fenumiai.

Here's what the law says:

"A vote for a write-in candidate, other than a write-in vote for governor and lieutenant governor, 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."

Miller's lawsuit argues the state waited until this week -- "the eleventh hour" -- to release a written policy saying it would weigh voter intent in the counting process.

Van Flein said the campaign is asking the court to respond to the complaint by noon today.

A Department of Law spokesman said he hadn't seen the complaint yet and couldn't comment.


The website Politics Daily reported that, during a conference call with conservative voters, Miller accused Campbell of bias, saying he was appointed by Murkowski's father, then-Gov. Frank Murkowski.

Murkowski appointed Campbell in 2003 to be the commissioner of the state Department of Military and Veterans Affairs. But it was then-Gov. Sarah Palin who chose Campbell to be in the position to ascend to the lieutenant governor's office when she resigned as governor in 2009.

The state will have 15 teams of two counters going through the write-in ballots in Juneau this week. The campaigns will have observers watching them. If the observers disagree with the determination of the counters, they can raise the issue with elections director Fenumiai on the scene.

Both the Murkowski and Miller campaigns have been furiously raising money for lawyers to review the count, and potentially to go to court over it.

The handling of write-in ballots over the next few days will be televised on public affairs channel 360 North, which is available on cable (Channel 15), satellite (Dish Network 9380, 7040 or 8299) and over-the-air TV (Channel 7.3 in Anchorage). It also will be streamed online at The coverage is expected to start at 9 a.m. each day.

Write-in ballot check begins today Get live updates throughout the day on the checking of more than 92,000 write-in votes. Visit or follow us on Facebook and Twitter. Get the most important news first by signing up for our breaking news alerts at

PDF: Miller complaint
PDF: Miller motion for preliminary injunction
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