Brad Friedman: Federal Judge Rules for Miller

Question of misspelled write-in ballots belongs in state court, says judge...

Via Huffington Post...

JUNEAU, Alaska — An Alaska federal judge ruled Friday that Republican Senate candidate Joe Miller's challenge to the counting of write-in ballots raises "serious" legal issues but is a matter for a state, not federal, court to decide.

Yet in deferring to an Alaska state court for a final decision, U.S. District Judge Ralph Beistline said he would grant a temporary injunction to halt official certification of the Nov. 2 election – an action Miller is seeking – so long as Miller takes his case to the state court by Monday. Miller told The Associated Press late Friday that he intended to do so.

Beistline's unusual action was intended to "ensure that these serious state law issues are resolved prior to certification of the election," the ruling said.

See HuffPo for more details on the ruling. Miller's campaign has issued a brief statement here.

And see The BRAD BLOG's detailed analysis from Wednesday explaining why, in our opinion, Miller would be wise to call for a full, transparent hand-count and reconciliation of all ballots cast in Alaska's U.S. Senate election.

Earlier this week AP called the election in favor of incumbent Republican write-in candidate Sen. Lisa Murkowski. But, as we described, there are a number of reasons --- including Alaska's recent history of impossible election results as reported by their flawed, oft-failed, easily-manipulated and non-transparent Diebold optical-scan system --- which suggest that Miller would be performing a service to the voters of Alaska and the rest of the country if he used his standing to insist on a full, public hand-count. By the way, Democratic candidate Scott McAdams would be performing a similar service if he used his standing to join Miller in that pursuit...

As to the judge's Friday ruling, the Alaska statute in question in that particular law suit says that write-in ballots may only be counted if the candidate's name is spelled exactly as it is written. As we reported in our analysis on Wednesday:

Miller has filed a lawsuit charging that state law was violated when ballots that included misspellings of Murkowski's name were counted for her nonetheless. Alaska's state law for counting ballots (AS 15.15.360) requires that at least the last name of write-in candidates be written "as it appears on the write-in declaration of candidacy" on the ballot. The rules as spelled out in the statutes are "mandatory and there are no exceptions to them". They further specify that "A ballot may not be counted unless marked in compliance with these rules." Case law, however, as interpreted by the courts going back as far as 1998 has reportedly allowed a more liberal "voter intent" basis for determining the validity of write-in ballots. Miller's suit, charging the [Alaska Division of Elections] violated the rule of law is still pending.

That said, even if every one of the ballots currently challenged by Miller (approximately 8,000 of them) in the manual examination of write-in ballots were to be decided in his favor, Murkowski would still lead in the three-way race by some 2,000 votes. But that is under the presumption that the rest of the votes as counted (approximately 250,000 in total) were accurately tallied by the Diebold e-voting system.

Our Wednesday article detailed why that is not necessarily a safe assumption and why it is that lingering doubts about a race like this is anything but healthy for our democracy.

ENDS

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