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Judge hears arguments in Miller's Senate battle; decision won't come before Friday

Patti Epler

Don't expect a ruling in Joe Miller's challenge of Lisa Murkowski's apparent win in the U.S. Senate race until sometime Friday, Ketchikan Superior Court Judge William Carey told attorneys who spent two hours arguing their cases on Wednesday morning.

The judge also said he'd immediately allow a brief stay, no matter what he ruled, so either side could appeal to the Alaska Supreme Court.

Little new was presented in the way of arguments to the court on Wednesday. The state and Murkowski contend the judge should rule in their favor now and say there is no need for time-consuming investigations into allegations of fraud or misconduct as Miller wants.

Assistant attorney general Joanne Grace described the ballot-counting process as "very open" with observers for both Miller and Murkowski present at all times. When the count was finished, Murkowski was ahead by about 10,300 votes and Miller's observers had challenged about 8,000, giving Murkowski a lead of more than 2,100 votes even if all the challenges stand, she said.

The Alaska Supreme Court has set a very high standard for post-election challenges to discourage losing candidates from tying up the final results simply because they're disgruntled, Grace said.

She asked the court to recognize that the legal fight is not going to change the outcome of the election -- that Murkowski has prevailed -- and grant the state's motion for summary judgment now.

Miller: Elections officials shouldn't arbitrarily interpret law

Miller is seeking to overturn the election results on five different grounds, including violations of the state's own administrative rules, or because some ballots were counted by hand and others by a machine or because some votes may have been improperly cast, for instance, by people who didn't show identification.

Miller's main argument, according to his attorney Michael Morley, is that ballots that misspelled Murkowski's name, even by a single letter, should not be counted. He told the judge that state law requires the name written in on the ballot to match the name on the paperwork filed by a candidate with the state elections office.

Morley began his presentation by quoting James Madison: "If men were angels, no government would be necessary." He pointed out that the Legislature worded the statute the way it did because it didn't want elections officials arbitrarily interpreting it. He said the spectrum of votes the state had to consider ranged from ballots that displayed bad penmanship to misspellings to "Lisa M." instead of her full name. An elections worker shouldn't be arbitrarily deciding what should count and what shouldn't, he said.

But Grace, along with Murkowski attorney Tim McKeever, urged the judge to follow previous Supreme Court rulings that have come down on the side of voter intent. Grace said Miller's "standard of perfection" was not appropriate.

Miller "wants the vote count changed so he wins, not because voters chose him but rather based on a technicality," she said, adding that Miller considers bad penmanship to be an invalid vote.

She said the state has a duty to preserve very voter's choice if it can. "Alaska is not populated by 700,000 clones," she said.

People come from different back grounds and cultures and have differing abilities to perfectly write in a long name, but that doesn't mean they can't make the choice on who to vote for, Grace said.

McKeever argued that, logically, voter intent is clear on every write-in ballot whether the name is spelled correctly or not. Simply by choosing to write in a candidate rather than filling in the oval next to a name that's printed on the ballot shows the voter intended someone else, he said.

"There can be no clearer intention of the voter's intent," he said.

McKeever pointed out that Murkowski's margin of unchallenged votes actually has grown by about 3,000 -- up from 2,100 -- because Miller has withdrawn challenges of ballots where voters wrote "Murkowski, Lisa" and minor misspellings. He asked the court to encourage Miller to clarify whether he will withdraw challenges on other ballots where the name was written below the line, for instance, or used her title "Senator" or dotted an I with a heart.

"It substantially increases the margin of unchallenged votes," McKeever said.

State: Miller's case is the ‘poster child' for frivolous court challenges

McKeever said Miller has had plenty of time to produce evidence of significant wrongdoing and that there's no need to continue dragging out the election by trying to discover improprieties that may or may not exist. "It's not substantial evidence, it's the suspicions of a few people," he said.

Just before the hearing, Miller's team filed paperwork with new allegations that some registered sex offenders may have been allowed to vote in violation of "disenfranchisement" laws that prohibit convicted felons from voting. That suggests other felons might have voted as well, Morley said.

But there would be no way to know whether felons or others who shouldn't have voted cast ballots for Murkowski, Miller or Democrat Scott McAdams. And since the number of potential felon voters is small, it wouldn't change the election results, Grace said.

She called this case the "poster child" of why the state Supreme Court has held post-election challenges to very high standard.

"Miller is throwing in everything," assistant attorney general Joanne Grace said.

The judge questioned Morley closely a number of times about his interpretation of state law and the fairness of throwing out votes that are not perfectly spelled or written.

Carey pointed out that state election paperwork filed by Murkowski isn't exactly the same as the way it was written on the ballot and Miller had no problem with that. "So how does that square with an interpretation that spelling has to be precise?" Carey asked. "There seems to be some areas where you're willing to grant flexibility and some where you're not."

That's where the discussion basically broke down into the use of commas, because state paperwork has her listed as "Murkowski, Lisa" and most voters wrote in "Lisa Murkowski," which spelled correctly was not challenged by Miller.

Morley countered that the name is the name, whether it's last name first, or first name first. It's the deviation in spelling that doesn't hold up, he said.

"It isn't a situation of trying to disenfranchise voters," Morley said. "The situation is the law requires correct the correct spelling."

Contact Patti Epler at patti(at)alaskadispatch.com.