AFN seeks to intervene in Senate voting lawsuit

Richard Mauer

The state's largest Native group says the federal lawsuit filed by Republican Senate candidate Joe Miller endangers the voting rights of some Alaska Natives and of citizens with conditions that might have made it hard to cast a "perfect" write-in ballot for Lisa Murkowski.

The Alaska Federation of Natives Monday filed court papers to join the state in opposing Miller's lawsuit, which seeks to force state election officials to count only those write-in ballots where Murkowski's name is precisely spelled and legibly written.

Both the state and the AFN say Miller's position runs counter to state and federal laws that require officials to count a ballot that's less than perfect, so long as the voter's intent can be determined.

"Perhaps a voter speaks English as a second language, or struggles with English for some other reason? Perhaps the voter suffers from dyslexia or Parkinson's, or is disabled? Perhaps their handwriting is simply sloppy, or contains personal flourishes? Miller's answer: Throw out all of their votes," AFN attorney Thomas Amodio said in a court filing. (And in a personal footnote in his filing, Amodio admitted getting "unsatisfactory" marks for penmanship in grammar school himself and wondered whether his own vote for Murkowski would have been challenged by Miller.)

The AFN is asking U.S. District Judge Ralph Beistline to let it enter the case, which is being argued on an expedited schedule. As of the close of business Monday, Beistline hadn't ruled on the AFN request, but in the interest of time, the organization filed its own arguments anyway.

The AFN says it has standing to join the case because it represents thousands of Natives who contributed to Murkowski's extremely strong showing in Bush Alaska. Discounting Murkowski ballots over misspellings or other "insignificant" defects would therefore disproportionately affect Alaska Natives whose suffrage is protected by the U.S. Voting Rights Act as well as state law, Amodio said.

Miller filed suit last week in federal court seeking an order halting the counting of ballots in which Murkowski's name is incorrectly spelled or other marks or phrases, such as the word "Republican," are added by the voter. Beistline denied Miller's request for an immediate injunction against the state but told the sides to submit legal arguments before he makes a final ruling.

Last week, the state argued that if Miller had a beef with the way state officials were interpreting state law, he needed to sue in state court, not federal court. The state asked Beistline to throw out the case without ruling on the merits of the arguments.

At issue is a recent law passed by the Legislature that says that for a write-in vote to be counted, the name must be the same as appears on a candidate's write-in declaration. Miller says that statute removes any discretion from election officials to count anything other than a replica of Murkowski's name as she wrote it on her declaration.

That distinction could be critical. When vote tallying closed for the day Monday with nearly all ballots counted, Murkowski's unchallenged ballots weren't enough for her to beat Miller -- she trailed 83,968 to 90,458. But add in the ballots in which election officials overruled Miller's objections, and Murkowski led with 91,517 votes.

In a separate filing Monday, the state said Miller is failing to consider other state laws, federal law and decisions by the Alaska Supreme Court that take into account minor errors by voters to determine their intent. Miller's "cramped reading" of a single law "does not transform write-in voting to a literacy test," the state said, arguing that "a misspelled version of a candidate's name is still that candidate's 'name.' "

"When a newspaper prints an article referring to 'Lisa Murkowsky' and her Senate campaign, readers do not assume that, by bizarre coincidence, a woman with a very similar name to the incumbent senator had also decided to run for the U.S. Senate -- they understand that this is a spelling error in a story about Senator Lisa Murkowski," the state said.

The main purpose of the legislation cited by Miller was to allow a candidate to give nicknames or alternate names in the declaration, so that no matter which was written in by a voter, it would count.

"A candidate whose name was Henry Boucher but who went by the nickname 'Red' Boucher, for example, would fill out the form, 'Boucher, Henry Red,' " the state said, using an example of a popular former state legislator who died last year. "Under Miller's interpretation of the phrase 'as it appears,' voters would have to write 'Boucher, Henry Red' to have their votes counted for this candidate, because that would be precisely how his name 'appeared' on the form. 'Henry Boucher' would not count, nor would 'Red Boucher.' "

The AFN cited previous Alaska Supreme Court decisions affirming that election officials should attempt to determine a voter's intent on a ballot as a way to ensure one person's vote is as meaningful as another's.

"Shamefully, Miller seeks precisely the opposite result here: he seeks to make his vote and the votes of his followers more meaningful than the votes of other citizens who have exercised their constitutional right to vote, merely because they voted for a candidate other than Miller," said Amodio, the AFN attorney. "Worse, Miller seeks to ensure the inequality of those voters, who invested the time and effort to cast a write-in vote. In Miller's view, voters who have any trouble spelling a candidate's name should be disenfranchised, their votes tossed out."

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