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Supreme Court rules against Miller

Sean CockerhamMcClatchy-Tribune News Service
Joe Miller, right, and attorney Thomas Van Flein listen as the Alaska Supreme Court hears arguments Friday.
ERIK HILL / Anchorage Daily News
Justice Walter Carpeneti, center, brings matters to a close after the Alaska Supreme Court heard arguments on the results of the U. S. Senate race Dec. 17, 2010 at the Boney Courthouse downtown.
ERIK HILL / Anchorage Daily News

The Alaska Supreme Court on Wednesday ruled unanimously on all counts against Joe Miller's challenge of last month's U.S. Senate election, saying Miller's interpretation of the law would erode the integrity of Alaska's election system.

"There are no remaining issues raised by Miller that prevent this election from being certified," the Supreme Court justices declared in their 24-page ruling.

The court ruled the state was right to count misspelled write-in ballots for Sen. Lisa Murkowki. The justices also found Miller hasn't proved his allegations of election fraud.

Murkowski leads by more than 10,000 votes and Miller is fast running out of legal options. He still has a chance to quickly press his claim in federal court.

U.S. District Court Judge Ralph Beistline is giving Miller until Monday morning to argue that the federal courts should take up any remaining constitutional issues. Beistline has blocked the state from certifying Murkowski as the winner of the Senate race while the court issues are being settled.

The state is asking Beistline to lift his block and he's promised to decide "as soon as possible."

Miller didn't agree to an interview after the Supreme Court ruling but e-mailed a statement saying he was weighing what his next move will be.

"We disagree with the court's interpretation of the election code, but respect both the rule of law and the court's place in the judicial system," Miller said. "We are studying the opinion and carefully considering our options."

Miller has been challenging the results of the Nov. 2 election with the help of money from South Carolina Sen. Jim DeMint's political action committee, the Senate Conservatives Fund. Miller's campaign spokesman has said they might attempt to take the fight all the way to the U.S. Supreme Court.

Murkowski campaign manager Kevin Sweeney said he was elated by the Supreme Court ruling and expects Beistline will let the election results be certified next week. "We also anticipate that Joe will continue to pursue his baseless claims in federal court until his money runs out," Sweeney said.


The Supreme Court ruled that state Superior Court Judge William Carey of Ketchikan was right to toss out Miller's lawsuit over the U.S. Senate race. "We affirm the decision of the superior court in all respects," the justices wrote in their ruling.

Miller's central claim was that the Division of Elections shouldn't have counted write-in ballots for Murkowski if her name was misspelled. The incumbent Murkowski launched her write-in campaign after losing in the Aug. 24 Republican primary to Miller, who ran on a tea party platform with the backing of former Gov. Sarah Palin.

The Supreme Court said it was relying on 50 years of rulings that emphasized the principle of following voter intent in deciding Alaska's elections.

"Voter intent is paramount and any misspelling, abbreviation or other minor variation ...does not invalidate a ballot so long as the intention of the voter can be ascertained," the Supreme Court said in its ruling.

The court said Alaskans who don't speak English as a first language or have learning disabilities still deserve to have their votes count. The court also said federal law explicitly allows misspellings for write-in ballots cast by overseas or military voters.

"Miller's proposed construction of the statute would require us to impose a different, and more rigorous, voting standard on domestic Alaskans than those who are serving in the military or living abroad," the justices said.

Miller argued that Alaska law doesn't allow the state elections director to decide what candidate a voter intended to support when a misspelling occurs.

The Legislature awkwardly phrased the law in dispute. The law says "a vote for a write-in candidate ... 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."

The state Supreme Court ruled that language needs to be taken in the context of broader Alaska election law, which the justices said is written to ensure that votes are counted and not excluded. The justices said Miller had wrongfully argued that only his interpretation of the law would preserve the integrity of the election.

"It is Miller's interpretation of the statute that would erode the integrity of the election system, because it would result in disenfranchisement of some voters and ultimately rejection of election results that constitute the will of the people," the court ruled. "We have consistently construed election statutes in favor of voter enfranchisement."


Even if the Supreme Court had tossed out every ballot challenged by Miller's ballot observers, Murkowski still would win by more than 2,000 votes. And Miller's lawyers have acknowledged that some of those challenges were wrong.

But Miller also claimed election irregularities that he hoped would take other votes from Murkowski. The Supreme Court shot him down on those claims as well.

Miller wanted more time to prove his allegations. But the justices wrote that "pure speculation cannot support a fishing expedition for evidence to oppose summary judgment in an election contest."

One of Miller's claims stated that some Murkowski write-in ballots appeared to have all been written in the same handwriting. The Supreme Court ruled that doesn't mean there was fraud. The justices noted Alaska law lets voters ask elections workers for assistance in voting, including writing the name of a write-in candidate.

"No reasonable inference of misconduct can arise from the mere fact that the handwriting on multiple ballots appears to be from a small number of people," the court ruled.

Miller also alleged that more than 5,000 votes were suspect because election workers didn't check a box specifying how they'd verified voter identification. But the court said there is no actual requirement that election workers fill in those boxes.

Miller's latest claim was that an unknown number of felons voted who shouldn't have. The state said only felons who had their voting rights reinstated had voted.

Miller made the claim after his lawsuit was already filed and the courts have declined to wade into the issue. The Supreme Court justices left it up to Superior Court Judge Carey to decide if he wanted to let Miller try to prove it. But they said the election results still could be certified if that issue is pending.


Lt. Gov. Mead Treadwell said he wasn't too worried about this claim. "There is no evidence that there was any inappropriate activity there," Treadwell said Wednesday.

Treadwell said he's hoping the election will be certified between Christmas and New Year's. He said the federal courts need to let the state certify the election before the new U.S. Senate is sworn in Jan. 5. Federal Judge Beistline has agreed that's important and said Miller could still pursue legal claims even after it is certified.

Rick Hasen, an election law expert at Loyola Law School in Los Angeles, looked over Wednesday's Alaska's Supreme Court ruling. "At this point, a rational politician hoping for a future in Alaska politics would throw in the towel rather than contesting these results in federal court, in state court after certification, or in the U.S. Senate," he concluded.

Murkowski tried to make her lead even bigger by arguing that the state should have counted about 1,500 ballots where voters wrote in her name but didn't fill in the oval next to it.

The Supreme Court considered that along with Miller's lawsuit and ruled the state was right not to count those additional ballots for Murkowski.

Find Sean Cockerham online at or call him at 257-4344.