Miller sued in wrong court, state says

Richard Mauer

The state says that Republican U.S. Senate candidate Joe Miller has no business going into federal court now to challenge the counting of write-in ballots for his opponent and urged a federal judge to dismiss the case he filed this week.

State courts are the proper forum to interpret Alaska election law and the actions of state officials, Assistant Attorney General Margaret Paton Walsh said in her motion to dismiss. Until the Alaska Supreme Court has spoken, Miller has no legal basis to make a federal case out of the issue, she said.

"The plaintiff (Miller) in this case has attempted to dress his state-law claims in federal-question clothing, in order to go forum shopping," Paton Walsh wrote. "The Alaska Court System is the proper forum for this case. The Alaska Supreme Court is very familiar with the state's election laws -- issuing an election law decision as recently as two weeks ago -- and is the appropriate court to interpret Alaska's election statutes."

As a candidate, one of Miller's central messages was that the federal government has overreached into areas that should be run by the states, whether that was Social Security, health care, education or resource protection. Now the state says it is Miller who is overreaching by asking a federal court to interfere in what should be an Alaska affair.

Miller has said that election officials supervised by Lt. Gov. Craig Campbell are improperly interpreting a state law that says that write-in votes can count only when the full name or at least the last name is spelled exactly as it appears in the candidate's write-in declaration. This week, his observers in Juneau have even been challenging write-in votes with ambiguous penmanship -- in particular, letters that bump up against each other and raise the question of whether an "ow" combination is actually an "au," for example.

On Tuesday, Miller filed suit in U.S. District Court in Anchorage, asking for an immediate injunction barring the state from counting any ballot for Murkowski with a misspelled name.

On Wednesday, U.S. District Judge Ralph Beistline rejected Miller's request for an injunction. Because election officials are segregating ballots on which questions had been raised, Miller faces no irreparable harm -- the ballots could always be reviewed later, he said.

Beistline gave the parties until next week to fully argue the issues in court filings. He told them in particular to "address the significant jurisdictional issue" of Miller's use of the federal courts.

Before the day was over Wednesday, the state filed its dismissal motion on just that question.

In his campaign, Miller said the U.S. Constitution should be strictly interpreted, and in his lawsuit he cited two sections of the Constitution as the basis for his case: the elections clause in Article I that gives legislatures the power to determine how congressional elections will be managed in their states, and the 14th Amendment's equal protection clause, the basis for most civil rights litigation in the past 150 years.

But Paton Walsh said Miller's constitutional interpretation is mistaken on both counts.

Miller and his supporters frequently cite the Alaska Legislature's write-in statute as the last word in managing the election, but Paton Walsh said that ignored other laws that also apply, including one in which the Legislature gave the director of elections the authority to "provide general administrative supervision over the conduct of state elections."

As explicit as the Legislature was in crafting the write-in law, she added, "The statute is silent regarding spelling and handwriting issues."

But in any event, if the Division of Elections is improperly interpreting the law, it's up to the state courts to rule first, not the federal courts.

"The Elections Clause (in the Constitution) does not transform every claim that a state agency has misinterpreted a state election statute into a federal constitutional claim. If it did, every state election law dispute would implicate the U.S. Constitution, and the federal courts would find themselves the primary arbiters of state election law, despite the Constitution's clear delegation of authority to the states in that arena," she said.

Equal protection also does not apply because only one standard is being used to count ballots, she said. Paton Walsh said the equal protection clause became an issue in Florida in 2000 during the ballot counts between presidential candidates George Bush and Al Gore, when county officials across the state used different standards to determine voter intent when ballots were unclearly marked -- the infamous "hanging chad" problem.

But in Alaska, whether a ballot comes form Kotzebue or Wasilla, the same rules apply at the counting room in Juneau, she said.

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