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Court rejects Miller, lifts certification hold

Lisa Demer

A judge on Tuesday dismissed Republican Joe Miller's federal lawsuit seeking to overturn the results of the Nov. 2 election, clearing the way for U.S. Sen. Lisa Murkowski to be sworn in for another term.

U.S. District Judge Ralph Beistline issued a 14-page order in which he said Miller wasn't raising any federal issues that he needed to resolve.

The judge ruled without waiting for the state to provide its defense of the election. He said state lawyers didn't even need to respond to Miller's latest filings. He ordered Miller's entire federal case dismissed.

Within hours, Lt. Gov. Mead Treadwell announced that the state had certified Murkowski as the winner of the hotly contested race for U.S. Senate.

But in the early evening, Treadwell's office issued a correction saying the election would be officially certified Thursday by Gov. Sean Parnell.

The confusion resulted from the fact that there are two certifications. Under federal law, the governor specifically must sign the certificate of election for a U.S. senator. State law provides for the elections director to certify the election result, which happened Tuesday.

The certification signed by the governor must be delivered to Washington, D.C., by noon on Jan. 3 so that Murkowski -- who has held the office for eight years -- doesn't lose her seniority, according to state Elections Director Gail Fenumiai.

'A RELIEF'

Murkowski learned of the ruling Tuesday afternoon just after boarding an Alaska Airlines flight in Anchorage, headed out of state for a family vacation.

"This is pretty great news," she said in a telephone interview from the plane. "It means that I can breath a sigh of relief knowing that next week Alaska will have two senators in the United States Senate and there would not be any lapse that could have happened had certification been held up very much longer.

"This signals clearly that this election is done and Alaskans are ready to move on and I'm ready to get to work," the senator said.

Miller said in a statement that he was disappointed by the ruling and was contemplating what to do now.

An appeal would go before the 9th U.S. Circuit Court of Appeals. His lawyers contended the U.S. Constitution puts authority for regulating elections with the Legislature, not election officials.

"Specifically, should the courts be required to follow the legislature's standard for the selection of U.S. Senators or create their own?" Miller said in a written statement. "My legal team believes that the clear language of the Election Clause as well as precedent support our claims. Thus, we are evaluating the ruling and determining what our next step should be."

After losing to Miller in the GOP primary in August, Murkowski mounted a well-funded write-in campaign, the likes of which Alaska has never seen. The final count left her with 101,091 votes to 90,839 for Miller, elections officials said Tuesday.

POORLY WRITTEN LAW

Beistline's order lifted a block on the election's certification that he had previously imposed while Miller challenged the case in state court.

He wrote that he would not second-guess the Alaska Supreme Court, which already had ruled against Miller. But he also said Miller's technical arguments were not frivolous.

Miller argued the state wrongly counted ballots in which Murkowski's name was misspelled. His lawyers pointed to a state statute that says "in order to vote for a write-in candidate, the voter must write in the candidate's name in the space provided and fill in the oval opposite the candidate's name."

The state Supreme Court ruled that elections officials properly considered voter intent in deciding to count write-in ballots with slight misspellings.

"What we have before us is a poorly drafted state statute," Beistline wrote. "Wisdom would suggest that the Alaska Legislature act to clarify it to avoid similar disputes in the future. For now we have to work with what we have and that is what the Alaska Supreme Court has done."

It wasn't immediately clear if legislators intend to take up the issue.

While the law is awkwardly phrased, the Supreme Court clarified its meaning, assistant Attorney General Margaret Paton Walsh, lead state attorney in the federal case, said.

"This situation shouldn't come up again because nobody in the future should be at all confused by whether the statute requires exact spelling because the Alaska Supreme Court has said that it doesn't," she said.

The state likely will file in state court to recover a portion of its expenses from Miller, under the "loser pays" court rule, Paton Walsh said. Under the rule, the state likely is entitled to 20 percent of its costs, which would amount to about $15,000 from Miller.

Parnell is scheduled to sign the election certificate Thursday morning in Juneau, with Treadwell as a witness.

The state says an employee will hand carry the certification to Washington. The logistics were still being worked out, Fenumiai said.

CHAMPAGNE TIME?

Murkowski was just digesting the news on the plane. Her husband, Verne Martell, who was sitting on a different row, heard about the ruling about the same time. He walked back to give her a congratulatory kiss and suggest they get champagne.

It may finally be time, she agreed.

"I have had a bottle of champagne in just about every refrigerator where I have visited over this Christmas holiday and I haven't been able to release that cork yet," the senator said.

Murkowski said she, her husband and two sons spent the last four days at Alyeska Resort "skiing hard." In early 2009, she suffered a serious knee injury on the slopes and ended up in a wheelchair for a short time. She said Tuesday "I am back, and in a good way."

Murkowski, who served her first two years as an appointee, is scheduled to be sworn in on Jan. 5 for a second six-year term.

She said she will serve on the Energy Committee and hopes to be named the ranking Republican.

"A huge and sincere thank you to Alaskans who have entrusted their confidence in me," Murkowski said. "And Happy New Year."

Find Lisa Demer online at adn.com/contact/ldemer or call 257-4390. Reporter Richard Mauer contributed to this story.


By LISA DEMER
ldemer@adn.com