Judge denies injunction in election lawsuit

Posted: Thursday, November 11, 2010

ANCHORAGE - A federal court judge has denied a request by Alaska GOP Senate candidate Joe Miller to immediately stop the state Division of Elections from counting write-in ballots that stray from the exact spelling of a candidate's name.

Anchorage U.S. District Court Judge Ralph Beistline said Wednesday in his written decision that Miller had not demonstrated potential for irreparable harm if counting continues. Election officials are separating ballots that have variations in spelling.

Incumbent Lisa Murkowski, whom Miller defeated in the August Republican primary, ran as a write-in candidate in the Nov. 2 election.

Miller is running second to write-in ballots. Miller wants to prevent the state from using discretion in determining voter intent and to throw out ballots that misspell Murkowski's name.

Beistline said the state's response to Miller's lawsuit summed up his evaluation of the case to this point.

"Given that the questionable ballots will remain segregated and subject to subsequent review, with the results recorded separately, the Court finds no good reason to enjoin counting the ballots while the underlying Complaint is addressed in due course," Beistline wrote.

State attorneys also said an 18-hour window to respond was unfair and there were no circumstances that required such a rapid response. Beistline gave the state until Monday afternoon to respond. Miller's reply will be due Nov. 18.

At a news conference Wednesday morning in Juneau, Lt. Gov. Craig Campbell, who oversees the Division of Elections, said voter intent will drive how election workers count write-in ballots.

Campbell said he's basing that decision on past court cases.

"There are about three or four different court cases over the last 25 years that indicate the direction, a liberal interpretation of voter intent in the state of Alaska," he said.

He said he has been consistent from early on in stating that minor misspellings of a write-in candidate's name will be counted.

"I'm trying to enfranchise voters, not disenfranchise by a narrow view of the law," he said.

All ballots with misspelled names are being reviewed by at least four election officials who will determine whether a vote is valid.

"It could be one letter. It could be two letters. Certainly, as it gets farther away from the correct spelling, the more opportunity there is for disagreement with the counters and for a determination that it should not count," Campbell said.

Miller's lawsuit, filed by Anchorage attorney Thomas Van Flein, attacked the Division of Election process.

He said the U.S. Constitution gives legislatures the power to regulate federal elections and the intent of the Alaska Legislature is stated in law: voters must include a candidate's name as it appears on a declaration of candidacy, or the last name of the candidate.

The lawsuit claims Campbell and Elections Division director Gail Fenumiai released a new state policy after Election Day and 36 hours before write-in ballot counting commenced. The lawsuit claims that policy is vague because it does not contain specific standards to ensure that comparable ballots are treated the same.

"When a write-in ballot contains an unrecognized name not reflected on any candidate form, they will attempt (somewhat mystically) to divine the 'intent of the voter' in order to determine the candidate for whom that ballot should be counted," the lawsuit said.

The new policy makes no provision for the "many" voters who cast protest votes, Van Flein said, by writing in a variation of Murkowski's name. Protest voters were trying to send a message to Murkowski but their votes will be counted for her, he said.

"This effectively nullifies the protest and falsely inflates the vote for the write-in candidate," he said.

He said advance public notice of the policy should have been given so the Elections Division could have considered public comment.

The lawsuit suggests that the Elections Division is working on behalf of Murkowski.

"Rather that acting 'behind a veil of ignorance," the Division adopted its policy when it knew precisely which candidate would benefit from it," the lawsuit said. "Senator Murkowski was the only creditable major write-in candidate, and a broad policy of considering 'voter intent' to count misspelled ballots would obviously lead to more votes being counted for Murkowski."

Campbell said misspellings may become a moot point, depending on how many votes are cast with a correctly spelled name. As for ballots with misspellings, "A court may be the final arbitrator," he said.

Beistline was assigned the case after Judge John Sedwick recused himself, citing his family's contributions to Murkowski and his unfavorable opinion of Miller.

As presiding judge, Sedwick was Miller's direct supervisor when Miller worked as a part-time federal magistrate in Fairbanks. Miller quit in 2004 for an unsuccessful run for the state Legislature.

The day of his resignation, Miller called in at 4:20 p.m. saying he had decided to run for public office, Sedwick wrote in his recusal order.

"The process for filling a part-time magistrate judge position is lengthy, a fact well known to Mr. Miller because he had gone through that process. Mr. Miller's failure to give reasonable notice of his resignation left the court with no judicial officer resident in Fairbanks, and no ability to fill the vacancy for many months," Sedwick wrote. "This incident caused me to form a negative opinion of Mr. Miller."

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