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Miller files suit in state court over Senate vote count

Richard Mauer

Republican Senate candidate Joe Miller followed through on a court order Monday and moved his lawsuit challenging the general election results to state court in Fairbanks from federal court in Anchorage.

Miller's 21-page lawsuit in Fairbanks Superior Court mostly mimics his earlier claims in federal court: that election officials improperly counted too many write-in votes for the apparent winner, Sen. Lisa Murkowski, and failed to count legitimate votes for him.

But he added two new allegations. He said that in unnamed precincts, voters may have been allowed to take ballots even if they didn't have identification or weren't personally known to election officials. As evidence, he said, ballot rolls in some precincts failed to indicate whether the election official had asked for identification.

And he said that "in several precincts," handwriting samples indicate that the same person or a small group of people wrote in names on multiple ballots. He said that would be a violation of a requirement that a voter personally pen the name of a write-in candidate.

Murkowski claimed victory last week when a hand count of write-in ballots by the state Division of Elections showed she led Miller by more than 10,000 votes. Even subtracting the ballots challenged by Miller's representatives, Murkowski still led by more than 2,100 votes.

But Miller is saying the balloting was unfair from the precincts in unnamed parts of the state to the counting room in Juneau.

Miller initially filed suit Nov. 9, seven days after the election, in U.S. District Court in Anchorage. He said election officials were improperly counting ballots under a state law that he said requires the written-in name to be spelled perfectly and legibly. State officials say there is no such requirement, as long as they're able to determine the intent of the voter -- for example, by a phonetic spelling.

Miller also said that the state's optical-scanning ballot-counting machines rejected votes for names printed on the ballot if stray marks appeared on the ballot. Ballots with stray marks on which a name was handwritten by the voter didn't suffer the same fate, he alleged.

And Miller said the rules for counting write-ins were created after the election, a violation of the state's administrative procedures act, which requires a drawn-out public process, including time for public comment.

The state challenged the lawsuit's venue, saying it was a state matter that should be heard in state court. U.S. District Judge Ralph Beistline agreed, telling Miller to file his suit in state court by Monday or he would throw it out.

Now that Miller has followed the first part of Beistline's order, the second kicks in -- the state is barred from certifying the election until the case makes it way through the state courts. Beistline said he would retain jurisdiction in the event Miller still has a federal claim to assert after his state appeals are exhausted.

With the new Congress on schedule to be sworn in Jan. 3, the state courts -- and then, possibly the federal courts -- would have to move swiftly to resolve the matter in time, or else Alaska might be represented by only a single senator. The contested 2008 Senate race in Minnesota wasn't resolved until July 7, 2009, when Al Franken was sworn in.

In an announcement Monday, Murkowski said her campaign planned to intervene in the state court case "to keep those thousands of voters from being disenfranchised by Mr. Miller." Her intervention, if accepted by the Superior Court, will undoubtedly add more issues that will need to be briefed by lawyers and decided by a judge.

Miller, meanwhile, wants a hand count of ballots. He's also asked for precinct-level records to research whether improprieties occurred at the polls.

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