Alaska is not Florida

Posted: Wednesday, November 17, 2010

Alaska's spelling bee queen is state Elections Director Gail Fenumiai, who is personally judging whether thousands of Alaskans correctly spelled "Lisa Murkowski," or if they didn't, and many did not, whether what they did write was close enough.

Michael Penn / Juneau Empire
Michael Penn / Juneau Empire

Moving from table to table, Fenumiai, accompanied by attorneys from the state's Department of Law is the sole final word on what is expected to be nearly 10,000 somehow imperfect Murkowski votes.

That's got the campaign team of Murkowski opponent and Republican nominee Joe Miller upset.

"What you have here is a mockery of the process," said conservative activist Floyd Brown last week at a press conference called by the Miller campaign.

"You've got one person, and one person alone, Gail Fenumiai, going from table to table literally casting hundreds of votes," he said.

Miller has already tried to get a federal court to intervene in the state elections process on his behalf, saying that no write-in that is not spelled absolutely perfectly should count.

Lt. Gov. Craig Campbell, who oversees the Elections Division, said "minor" misspellings would not cause a ballot to be rejected, but did not clearly define "minor."

State officials say they are using the "voter intent" standard adopted by Alaska courts over the years. What Fenumiai is using to determine intent isn't completely clear, but she has said if what is written phonetically can be pronounced as the candidate's name, the vote is likely to count.

In practice, however, her standard appears tougher than that, as many ballots that appear to be clearly intended as votes for Murkowski are being rejected due to bad spelling. Further, Fenumiai is rejecting perfectly spelled ballots in which the accompanying oval is not filled in.

Other observers say Alaska's unique state-run election process, far from being a mockery, puts it in an enviable position to defend against Miller's challenge.

In the nation's most famous court case that decided an election, the U.S Supreme Court decided the case of Bush v. Gore, on which the presidency hung. And the high court decided that the U.S. Constitution's Equal Protection Clause was violated by the state of Florida when different counties used different standards to approve ballots.

One of the claims made by Miller's attorney, Thomas Van Flein, stems from the Bush v. Gore Equal Protection Clause standard.

He said Alaska's standard is "vague, amorphous, subjective," and thus an unconstitutional way of determining voter intent.

"This quixotic quest will result in the arbitrary and disparate treatment of write-in ballots in clear violation of the U.S. Constitution," the lawsuit says.

In most places elections are run at the local level, with top election officers being dozens of county clerks or similar officials. In Alaska, where there are no counties, the Division of Elections in the Lieutenant Governor's office runs all statewide elections.

That means the Florida situation is unlikely to be replicated in Alaska, where the same pair of eyes - Fenumiai's - decides every single write-in vote question.

"This has been an extraordinarily well-run process, and it has the advantage over other states of being in one location," said Ben Ginsberg, former national counsel for the Bush-Cheney campaign in Florida, in Juneau consulting for the Murkowski campaign.

What Brown sees as a flaw, Ginsberg said is a strength that will help Alaska avoid a Florida-style challenge to the state's voting process under the Equal Protection Clause.

"In most states you have counting at the county level, and you have different counties counting differently," he said.

"Here you've got one set of eyes making all the rulings on disputed ballots," Ginsberg said. That's going to be difficult for Miller to convince a judge is unequal, he said.

Loyola Law School Los Angeles professor and elections law expert Richard L. Hasen wrote an article for Slate Magazine on Thursday. In it, he stated Alaska and Florida are much different in how the conduct their elections.

"In Alaska, it appears that one person, the director of elections, will judge all the contested ballots, which minimizes the risk of inconsistency. So I don't expect this argument to go far," Hasen said, writing in the online Slate Magazine.

Brown, though, said Fenumiai's central role was what was wrong with Alaska's process.

"She's the single arbiter of this election, and that's a travesty," he said.

• Contact reporter Pat Forgey at 523-2250 or patrick.forgey@juneauempire.com.



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