Joe Miller won't be waging his legal fight over the outcome of Alaska's U.S. Senate race from his hometown of Fairbanks. On Monday, a Fairbanks judge ruled that Juneau is a better location, and Miller was there in the courtroom to hear the news for himself.
"I appreciated his conscientious approach," Miller said of the judge's decision at a brief press conference held in the hallway outside the courtroom following the hearing.
Superior Court Judge Douglas Blankenship initially ruled that the Fourth Judicial District in Fairbanks was a proper venue for the case, given Fairbanks is one of the state's voting districts. If the case could be restricted to a purely legal argument and there was no need to get into matters of fact to be decided at trial, the case would be OK to remain in Fairbanks, as Miller had argued, he said.
Miller, who ran in the Senate race on the GOP ticket, is challenging write-in candidate Lisa Murkowski's apparent victory. The state has awarded Murkowski 101,088 votes -- more than 10,000 compared to the 90,740 votes that went to Miller. Miller has challenged 8,159 of Murkowski's votes, but even with that group tossed out, she remains 2,189 votes ahead of him, or 1.19 percent of the total votes cast between them. He'd need to shave that gap to a little more than 900 -- or .5 percent of the total votes cast for the two candidates -- in order to force the state to pay for a recount. Otherwise, if he requests a recount, Miller will need to foot the bill.
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More coverage from Monday's hearing
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Anticipating that issues are likely to arise over the ballots themselves, Judge Blankenship went on to rule that Fairbanks would be an inconvenient location for the state, causing unnecessary time and expense in litigating matters of fact in addition to matters of law. Blankenship identified several matters of fact that might arise:
"It is my belief that this case should be transferred to the First Judicial District in Juneau," Blankenship told the courtroom, noting that the ballots and election registers are located in Juneau, and that it didn't serve the people of Alaska, or the need for an expeditious outcome, by changing the venue and the judge later in the process.
"There's a statewide import to getting this done promptly and efficiently," he said.
Miller attorney Thomas Van Flein agreed that moving quickly was in everyone's interest. "We all recognize there is a short time frame," Van Flein said.
Blankenship also expressed concerns about damaging the integrity of the election -- the very issue on which the legal challenges are mounted -- by moving election registers or ballots away from where they are currently stored.
"Further movement of the original ballots is a risk and, as I stated, we are here for the integrity of the election and performing any acts that further risk the integrity of the election may not be prudent," he said.
Because he is moving the case to Juneau, Blankenship chose not to rule on whether to allow Lisa Murkowski to join the case. He will leave that decision to a Juneau judge.
During the hearing the state gave notice that it would have been willing to stop its fight over the venue, but only if the court decided the case by Dec. 9 and if no questions of fact -- like the integrity of the ballots themselves -- came up.
In a court filing earlier Monday, Murkowski, through her attorney Tim McKeever, argued that not only does Miller's court action directly affect her, she has her own disputes with the Division of Elections over the vote count and can't rely on the division to adequately represent her interests. Murkowski believes ballots on which the oval was not filled properly but on which her name was written should be counted as valid. Currently, those ballots are excluded from the official count.
The Murkowski team is also taking aim at Miller's claims of unfairness and impropriety with the ballot count, calling the allegations "a sharp detour away from both the truth and reality." Among the misrepresentations, according to McKeever, is Miller's allegation that he didn't have time to mobilize election observers in time for the hand count of write-in ballots in Juneau. But Alaska Republican Party Chairman Randy Ruedrich directly contradicts that representation in a signed affidavit accompanying Murkowski's filing.
Ruedrich, who says he had frequent contact with the Miller campaign and staffer Matt Johnson via phone, calls Miller's claims of unfairness and inability to prepare "false and self-serving."
On Nov. 5, two days after the count timeline was announced, Ruedrich said in his affidavit, "I was told by Mr. Johnson that (the Miller campaign was) ready for the hand count, they had made travel arrangements and had the necessary number of folks recruited to help with the hand count. No one told me that they were unable to recruit and train observers for that hand count." The count was to begin five days later on Nov. 10.
At Monday's hearing, Van Flein indicated that the Miller campaign did have some observers on the first day of the count, but not enough to cover every table. He claims it took a day or two to have everyone in place.
After the hearing, Miller repeated his now common refrain about why he's keeping up the fight, despite being urged by the state Republican Party -- which backed him after the primary -- to give it up.
"It's not about winning or losing. It's about having a clear process of how the votes are counted," he said. Miller also said it wasn't his intent to "hold up the process."
"I feel disenfranchised by what you are doing here," said voter Joanna Pippenger as Miller spoke to the press.
Pippenger voted for Murkowski and is unhappy her vote is among those Miller has challenged. Because she wrote the word "Republican" next to Murkowski's name on the write-in ballot, she assumes her ballot is one of the votes the Miller camp believes shouldn't count.
Murkowski claims Miller election observers challenged ballots for myriad reasons. Some had poor handwriting. On other ballots, voters had either written in or circled party affiliation. Some simply said "L. Murkowski." Others may have had corrections or Murkowski's name may have been written slightly above or below the line. Still others, Murkowski argues, were challenged for no apparent reason.
"I wish I would have said, 'You should concede,'" Pippenger told a reporter after the press conference.
Kathleen Dalton, a former Fairbanks assemblywoman and one-time office manager for the late Sen. Ted Stevens who also attended the hearing, was similarly dissatisfied with Miller's efforts.
"It's a nuisance case now," Dalton said. "Whatever the decision is he will try to appeal it. That's his game."
The case resumes Wednesday in Juneau.
Contact Jill Burke at jill(at)alaskadispatch.com. Tom Hewitt, Howard Hardee and Matt Anderson contributed reporting from Fairbanks.