Four days before the August 24th primary election in which she was a candidate for the Alaska Republican Party's nomination for the seat in the United States Senate she had occupied since 2002 when her father gave it to her, Lisa Murkowski publicly promised that she would abide by the outcome of the election. But when Tea Party avatar Joe Miller beat her fair and square, Lisa broke her word and on September 17th announced that she would compete in the November 2nd general election as a write-in candidate.
Since the Alaska Republican Party and the National Republican Senatorial Committee supported Miller, and since it had been more than half a century since a write-in candidate, Strom Thurmond, had been elected to the United States Senate, Lisa's prospects as a write-in candidate looked grim. But on November 17th in front of a phalanx of television cameras that NBC and CBS and the other major broadcast and cable news networks had set up in an Anchorage union hall, Lisa triumphantly announced that she had "made history" by defeating Joe Miller.
Since then the national media have accepted Lisa's vouch. And the Anchorage Daily News has editorialized that "this one is over."
But that is not yet how I am calling it.
All of the write-in ballots have been counted and Lisa Murkowski unofficially leads Joe Miller by more than 10,000 votes - 101,088 votes to 90,740 votes. During the vote count the Miller campaign challenged 8,159 Lisa Murkowski write-in ballots. But if those votes are deducted from her total, Lisa still wins by 2,189 votes. Which is why when she appeared on the CBS Early Show the morning after she declared victory and was asked whether she thought Joe Miller should concede the election, Lisa responded that "the numbers are just not there for him" and then suggested that "I think Mr. Miller recognizes that."
But Mr. Miller recognizes nothing of the kind.
Which is why on November 9th his attorney, Tom Van Flein, who also is Sarah Palin's attorney and whose work for Joe is being financed with money that South Carolina Senator Jim DeMint is helping to raise, filed a lawsuit against Alaska Lieutenant Governor Craig Campbell and the Alaska Division of Elections, which the Lieutenant Governor supervises, in the U.S. District Court in Anchorage to try to persuade District Judge Ralph Beistline to order the Division not to count "write-in votes in which a candidate's name is misspelled, or is not written on the ballot as it appears on the candidate's write-in declaration of candidacy."
Here is what Alaska's election law says about counting write-in ballots: "A vote for a write-in candidate, other than a write-in vote for governor and lieutenant governor, shall be counted if the oval [on the write-in line on the ballot] 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." (my emphasis).
The phrase "the name, as it appears on the write-in declaration of candidacy" seems to require the candidate's name to have been spelled the way the name was spelled on the "write-in declaration of candidacy" in order for a ballot to be counted. But what did the Alaska Legislature intend the phrase "or the last name of the candidate is written in the space provided" to mean?
What if the last name of the candidate is spelled correctly, but more than the last name of the candidate has been written in the space provided? What if the last name of the candidate has been written in the space provided, but the name has been misspelled?
After reading the statute, Judge Beistline concluded that those speculations about the intent of the Alaska Legislature are not frivolous. According to Judge Beistline:
Plaintiff [Joe Miller] contends that if candidate Murkowski's name is misspelled on the write-in ballot or deviates in any way from the manner the name appeared on the declaration of candidacy, that ballot should not be counted. This is certainly one very possible interpretation of the disputed statute. Defendants contend, however, that if the spelling of "Lisa Murkowski" or "Murkowski" is such that the voter's intent to vote for candidate Murkowski is clear, that should be sufficient and the ballot should be counted for her. This too is a viable interpretation of the disputed statute.
So the question of law that Joe Miller's lawsuit presented for decision is which interpretation did the Alaska Legislature intend?
The answer to that question is potentially consequential because it was widely reported that when the staff of the Division of Elections counted the write-in ballots Gail Fenumiai, the director of the Division, regularly authorized ballots to be counted no matter how the name "Lisa Murkowski" or "Murkowski" was spelled, as long as, in her personal opinion, Ms. Fenumiai thought that a write-in voter had intended to vote for Lisa. As Ms. Fenumiai explained her vote-counting system to the Anchorage Daily News: "Some of them [i.e. the write-in ballots] are very, very easy. Some of them are you know - can I phonetically get 'Murkowski' out of them? Not everyone writes perfectly."
If the Alaska Legislature intended the name of a write-in candidate to have been spelled correctly in order for a write-in ballot to be counted, and if the Division of Elections is ordered to recount all of the write-in ballots using that legal standard, rather than the "can I phonetically get 'Murkowski' out of them" standard that Gail Fenumiai invented, are there more write-in ballots that the Division of Elections should not have counted than the 8,153 ballots that Joe Miller challenged?
But my expectation is that, as a practical matter, that question is moot. Because last Friday, Judge Beistline ordered Tom Van Flein to refile Joe Miller's lawsuit in the Alaska Superior Court because
This is a State-wide election, conducted under State law involving State candidates and impacting State citizens. The Courts of the State of Alaska are in the best position, at least initially, to apply Alaska law and to determine who won this election. While it is not the role of the State Court to ignore or re-write the law, it certainly can interpret it when necessary.
That is how I expected Judge Beistline to rule. And my guess is that privately that is how Tom Van Flein expected Judge Beistline to rule.
While Tom Van Flein did not succeed in persuading Judge Beistline to decide the question of statutory construction whose answer might have allowed Joe Miller to win the election that he at present has lost, I was wholly sympathetic to Van Flein's Hail Mary attempt to have the merits of Joe Miller's lawsuit decided by a federal judge.
I carry no brief for Joe Miller, who by the end of the primary election campaign had proven himself to be a prevaricating and possibly emotionally unstable whack-job, rather than the Ivy League-educated war hero and "commonsense constitutional conservative" (whatever that means) that Sarah Palin had advertised him to be last June when she endorsed Joe's candidacy. But whatever his imperfections as a candidate, Joe Miller is entitled to have the validity of his interpretation of the intent of the Alaska Legislature embodied in the write-in candidate election statute decided pursuant to the rule of law.
But now that Judge Beistline has ordered Tom Van Flein to refile Joe's lawsuit in the Alaska Superior Court, insofar as the question of whether the Alaska Legislature has required a voter to correctly spell the name of a write-in candidate on his or her ballot in order for the voter's vote to be counted is concerned, Joe loses.
The reason he loses is that no matter what the Alaska Superior Court decides that the Alaska Legislature intended, when the losing party appeals the Superior Court's decision to the five-member Alaska Supreme Court, my prediction is that the Court will decide that the Alaska Legislature intended its statute to authorize the result that Gail Fenumiai jury-rigged when she decided that if a voter had scrawled a name on the write-in candidate line of his or her ballot that Ms Fenumiai could pronounce phonetically as "Murkowski," the ballot would be counted.
In prior decisions the Justices of the Alaska Supreme Court have candidly explained that, in their view of judging, "matters of statutory interpretation are questions of law to which we apply our independent judgment, adopting the rule of law that is most persuasive in light of precedent, reason, and policy."
But what do reason and the personal views of three or more of the five Justices regarding what outcome will produce the best policy result have to do with the intent of the Alaska Legislature embodied in the text of a statute? As long as its enactments are constitutional, the Alaska Legislature is empowered to enact statutes whose implementation may produce results that the Justices of the Alaska Supreme Court (and I) consider stupid and absolutely terrible public policy. But if there is a rule of law, the Justices are not empowered to substitute their personal policy judgment for that of the Alaska Legislature's, even if the Legislature's policy judgment was misguided, mean-spirited, or utter nonsense.
Unfortunately, in the 2010 Senate election the Alaska Supreme Court already has exhibited its members' willingness to decide that the law means whatever they think that it should mean.
The Alaska Legislature has enacted a statute that authorizes qualified voters who need "assistance in voting" to request employees of the Division of Elections to provide "assistance" and directs the employees to "assist" the voter. In that statute the Legislature did not define the word "assistance." But in another of its election laws the Legislature delegated the director of the Division of Elections authority to interpret the intent of the Legislature embodied in its election laws by "adopt[ing] regulations necessary for the administration of state elections."
Acting pursuant to that authority, the director of the Division of Elections adopted a regulation that says: "Information regarding a write-in candidate may not be discussed, exhibited, or provided at the polling place, or within 200 feet of any entrance to the polling place, on election day."
In other words, the regulation says that the director of the Division of Elections believed that the Alaska Legislature intended the word "assistance" to mean things like helping a voter find his or her correct polling place, helping a blind voter mark a ballot, and helping a voter who has a stiff knee pick up the pencil that the voter had been provided for the purpose of marking a ballot but dropped on the floor. But the Legislature did not intend "assistance" to include providing information about write-in candidates.
Nevertheless, with no public notice and for reasons that still have not been explained, prior to the general election Gail Fenumiai quietly directed employees of the Division of Elections to make information about write-in candidates available at polling places by showing voters who asked to see it a list of the write-in candidates that also included information about each write-in candidate's political party affiliation.
Alaska Democratic and Republican Party officials realized that making a list of write-in candidates available at polling places gave Lisa Murkowski, the principal write-in candidate whose name arguably had to be spelled correctly in order for a ballot cast for her to be counted, an unfair advantage that the aforementioned regulation prohibited the Division of Elections from providing. So they filed a lawsuit against Gail Fenumiai in the Alaska Superior Court that requested Superior Court Judge Frank Pfiffner to order Ms. Fenumiai to direct Division of Election employees to stop making a list of write-in candidates available at polling places.
Several days after the lawsuit was filed Judge Pfiffner did just that because he found that Ms. Fenumiai's decision to make a list of write-in candidates available in polling places was a "clear violation" of the Division of Election's regulation.
But two days after that the Alaska Supreme Court vacated Judge Pfiffner's order. Not because Judge Pfiffner was wrong that making a list of write-in candidates available in polling places was a "clear violation" of the regulation with which the Division of Elections had a legal duty to comply. And not because the Division had challenged the validity of its own regulation; which it had not.
Instead, the unsigned decision of the Alaska Supreme Court informed the parties and the Alaska public that the Justices had decided as they did because they thought that giving out the names of write-in candidates was information that would be of assistance to voters. But the decision then announced that the Justices also had decided that "providing information about a write-in candidate's party affiliation is prohibited because party affiliation is 'information regarding' a write-in candidate that is not necessary to address a voter's request for assistance."
But why isn't providing "information about a write-in candidate's party affiliation" of assistance to voters who may only want to vote for a write-in candidate if that candidate is or is not a member of a particular political party?
In its decision the Alaska Supreme Court did not provide a clue as to why the four Justices who issued the decision thought that information about the names of write-in candidates (and the correct spelling of the candidates' names) is of assistance to voters, but information about the political party affiliation of the same write-in candidates is not of assistance to the same voters.
Simply put, the Alaska Supreme Court decided the Alaska Democratic and Republican Parties' lawsuit as it did not because the Justices attempted to discern the intent of the Alaska Legislature embodied in the undefined word "assistance" in the Legislature's statute, and not by determining whether Gail Fenumiai and other employees of the Division of Elections had a legal duty to comply with the Division's regulation in which (before the question became of importance for Lisa Murkowski) the director of the Division had decided that the Alaska Legislature did not intend "information regarding a write-in candidate" to fall within the purview of the undefined word "assistance."
Instead, the Justices substituted their personal judgment regarding what they decided would be a good policy result for the rule of law.
Whether I agree with that policy result is neither here nor there. Lisa Murkowski agreed with it. The leaders of the Alaska Democratic and Republican Parties disagreed with it.
Given that track record, it is reasonable to assume that when the new lawsuit that at District Judge Beistline's direction Tom Van Flein filed on Monday in the Alaska Superior Court in Fairbanks reaches the Alaska Supreme Court, the Court will rule that whatever the Justices decide is the correct policy result is the result that the Alaska Legislature intended. And the decision the Court issued in the Alaska Democratic and Republican Parties' lawsuit is precedent for my prediction that the Justices will decide that they agree with Gail Fenumiai that the best policy result is to allow Ms. Fenuniai to count a write-in ballot whenever Ms. Fenuniai decides that she can decipher the name of the candidate that the voter tried to write in on the write-in candidate line of the ballot.
If that is how that part of Joe Miller's new lawsuit plays out, then Lisa Murkowski is correct that "the numbers are just not there for him," and Joe Miller is toast; which, with a caveat, is my prediction that Joe is.
The caveat is that while Tom Van Flein has spent the past two weeks litigating whether the Alaska Legislature intended that the name of a write-in candidate must be spelled correctly on a ballot for the ballot to be counted, Joe Miller's team has been busy trying to find other irregularities in the manner in which the Division of Elections conducted the election.
According to the new complaint Tom Van Flein filed in the Alaska Superior Court in Fairbanks, Joe's team has found three irregularities that are intriguing.
The only reason Lisa Murkowski leads Joe Miller by 10,348 votes is that 36,455 Democratic and center/center-left independent voters who voted for Ethan Berkowitz, the Alaska Democratic Party's candidate for Governor, abandoned Scott McAdams, the Alaska Democratic Party's candidate for Senator, to save Lisa.
An unknown, but likely huge, number of those 36,455 votes were cast at polling places in the more than 200 small rural communities scattered from Barrow on the coast of Arctic Ocean south to Hydaburg in the southeast Alaska rainforest that in 1971 Congress designated as "Native villages" for the purposes of the Alaska Native Claims Settlement Act (ANCSA), the federal statute that settled the aboriginal land claims of Alaska residents who in 1971 were of indigenous Eskimo, Indian, and Aleut descent.
The votes she received in Native villages were turned out for Lisa by Alaskans Standing Together, a political action committee to which the twelve regional business corporations that ANCSA authorized Alaska Natives to organize contributed more than $1.2 million out of their corporate bank accounts. The corporations spent their shareholders' money to try to influence the outcome of a federal election because the leaders of the corporations were rightly terrified of Joe Miller's promise during the primary election campaign that, when elected, he would urge Congress to "reform" the sweetheart arrangement that former Alaska Senator Ted Stevens pushed through Congress that over the years has allowed ANCSA corporations to "earn" hundreds of millions of dollars serving as fronts for defense contractors who, by agreeing to pay ANCSA corporations a small piece of their action, have been awarded billions of dollars worth of sole source contracts by the Department of Defense.
In most Native villages no one other than the people who live in the village know how the 2010 election was conducted. And it is reasonable to assume that many of the individuals who the Division of Elections hired to run the election in those locations may not have been well-trained.
One of Alaska's election laws states: "Before being allowed to vote, each voter shall exhibit to an election official one form of identification." (my emphasis). While the law authorizes an election official to waive that requirement "if the election official knows the identity of the voter," if the requirement is waived the voter must vote a questioned ballot.
The new complaint that Tom Van Flein has filed in the Alaska Superior Court in Fairbanks alleges that election registers show that in "numerous precincts" (most presumably located in Native villages) individuals voted who did not present identification and whose obligation to do so was not waived.
Another of Alaska's election laws states: "In order to vote for a write-in candidate, the voter must write in the candidate's name in the space provided." (my emphasis).
With respect to that requirement, Tom Van Flein's new complaint alleges that "in several precincts, the handwriting on many or all of the write-in ballots appears to be from the same person, or the same small group of 2 to 4 people."
And finally, the complaint alleges that the procedure the Division of Elections used to consider whether to count a ballot that an automated tally machine had rejected was different in a determinative way from the procedure the Division used to consider whether to count a write-in ballot.
Who knows whether any of that is true. And if any of it is true, who knows how many votes that the Division of Elections should not have counted were counted for Lisa Murkowski, and how many votes that the automated tally machines should have counted for Joe Miller were not counted.
When Tom Van Flein and Margaret Paton-Walsh, the Assistant Attorney General who represents the Division of Elections, finish fighting out in the Superior Court what the facts are regarding those alleged irregularities, if there were irregularities, it will be up to the Alaska Supreme Court to decide whether they were legally consequential because they violated the intent of the Alaska Legislature expressed in the text of its election law.
So, Joe, who knows? You are down. But no matter what the national press says, you are not yet out. And maybe with Tom Van Flein's help you still can make it. Stranger things than that have happened in other too-close-to-call Alaska elections. But if I had skin in the game, with the Alaska Supreme Court on her side and Jim DeMint on yours, my money would be on Lisa.
Donald Craig Mitchell is an attorney in Anchorage and a contributor to Huffington Post, where this essay first appeared. Mitchell is the author of Sold American: The Story of Alaska Natives and Their Land and Take My Land Take My Life: The Story of Congress's Historic Settlement of Alaska Native Land Claims, which in 2006 the Alaska Historical Society recognized as two of the most important books ever written about the history of Alaska.