AFN seeks to intervene in Senate voting lawsuit

Posted: Tuesday, November 16, 2010

ANCHORAGE - Alaska's largest Native organization on Monday sought to intervene in a lawsuit filed against election officials by GOP Senate candidate Joe Miller, claiming he seeks to disenfranchise Alaska Natives by invalidating their votes if they do not spell another candidate's name perfectly.

Miller wants to prevent the state from using discretion in determining voter intent and to throw out ballots that misspell the name of write-in candidate Lisa Murkowski. She ran as a write-in candidate after she was defeated by Miller in the August Republican primary.

AFN attorney Thomas Amodio said in an opposition brief that Miller's interpretation of the law would violate the federal Voting Rights Act because it would have a disproportionate effect on votes cast by Alaska Natives and other minorities for whom English is not their native tongue.

"In Miller's view, voters who have any trouble spelling a candidate's name should be disenfranchised, their votes tossed out," Amodio said. That might include voters who speaks English as a second language, suffer from dyslexia or Parkinson's disease, or write sloppily or with flourishes, he added.

"Miller's answer: Throw out all of their votes," Amodio said. "Clearly, this is not the law, nor should it be."

Miller's lawsuit, filed by Anchorage attorney Thomas Van Flein, said the intent of the Alaska Legislature was 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.

His lawsuit claimed Lt. Gov. Craig 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 claimed that policy is vague because it does not contain specific standards to ensure that comparable ballots are treated the same.

Campbell, who oversees the Division of Elections, said last week that voter intent would drive how election workers count write-in ballots and that ballots with minor misspellings of a write-in candidate's name will be counted.

Miller's lawsuit suggested that the Elections Division was working on behalf of Murkowski, one of Alaska's incumbent senators.

Van Flein did not immediately respond to an e-mail request for comment Monday.

Amodio said Miller's reliance on the statute is misplaced because the law does not require perfection in the rendering of a candidate's name. He also said Alaska has a long history of liberally construing its voting laws to ensure that a citizen's vote is counted, not discarded for minor imperfections.

In some rural districts, he said, the percentage of write-in votes exceeded 70 percent while votes for Miller equaled 11 percent or less.

"The only way in which Miller could possibly overcome the substantial vote deficit - currently more than 10,000 votes - would be to have an enormous number of votes invalidated," he wrote.

As of midday Monday, the federal court had not approved the federation's request to intervene.

Anchorage U.S. District Court Judge Ralph Beistline last week denied a request by 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.

Beistline said in his written decision that Miller had not demonstrated potential for irreparable harm if counting continued. Election officials have separated ballots that have variations in spelling.

Beistline gave the state until Monday afternoon to respond to Miller's lawsuit. Miller's reply will be due Wednesday.

Immediately after the Nov. 2 general election, write-ins accounted for 41 percent of the Senate vote. Miller captured 34 percent, and Democrat Scott McAdams had 24 percent.

Hand counting of votes continues in Juneau. Murkowski has won 89 percent of the write-in votes counted so far without dispute.

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