Miller wins opportunity to block vote certification

Posted: Sunday, November 21, 2010

A federal judge has said if Senate candidate Joe Miller sues Alaska in state court by Monday, he'll stop the state from certifying the results of the disputed U.S. Senate election in which write-in candidate Sen. Lisa Murkowski has the most votes.

The Associated Press has declared Murkowski the winner of the race, with a more than a 10,000-vote lead over Miller, out of a quarter million votes cast in the contentious three-way race.

The final vote count at the Division of Elections office in Juneau on Friday trimmed 72 votes from Murkowski's lead, which now stands at 10,328.

A Murkowski spokesman said he wasn't sure what Miller hoped to gain with the lawsuit.

Miller, the tea-party favorite who won the Republican nomination over Murkowski, has tried to get a federal judge to change the way the state counts write-in votes.

He wants any vote to be tossed out if it varies in any way from a standard spelling or format, including being written "Murkowski, Lisa," or if it has the word "Republican" written after it, is misspelled in any way or is written below instead of above the line.

In a week-long write-in ballot counting process just concluded in Juneau, observers from the Miller campaign challenged 8,159 of the ballots counted for Murkowski, many after they showed one of those characteristics.

But that's not enough by itself to change the outcome of the election.

"Even if every one of the challenges by the observers of Joe Miller were discarded, she still holds a margin of victory of more than 2,000 votes," Kevin Sweeney, Murkowski's campaign manager said.

Miller, though, said in the rushed early days of the write-in count even more ballots may have been counted for Murkowski that should have been challenged. He did not say how he planned to challenge them.

"Given the close vote count in the race for U.S. Senate (excluding ballots containing misspellings) I presently intend to ask for a recount," Miller said in an affidavit filed in federal court last week.

It's not clear if Miller intends the recount to be by hand. State law gives Elections Director Gail Fenumiai authority to decide the recount method, and Fenumiai said they don't do them by hand.

"We do all of our recounts by machine," she said.

The judge issuing the stay order, Federal District Judge Ralph Beistline, declined Miller's request to change how the state counts votes, saying that was a matter for state law. He made his order contingent upon Miller filing suit in state court to pursue his claim that misspellings invalidated votes.

Elections director Gail Fenumiai has said the state's decision on how to count votes, called "voter intent" is called for under state law and was established in consultation with the Alaska Department of Law.

Fenumiai said she agreed with part of Beistline's order.

"The federal judge agreed with the state that this is a state law matter and the state court is the more appropriate forum to resolve any dispute," she said.

Also Friday, former Lt. Gov. Loren Leman, a Republican who served under Gov. Frank Murkowski, said he'd use Miller's definition of a valid vote, not the "voter intent" standard long used by the department he once headed.

Leman made his statements in an affidavit filed by Miller as part of his federal lawsuit.

Leman's affidavit acknowledged that the Alaska Supreme Court has in the past required use of "voter intent."

Miller attorney Thomas Van Flein said there were federal constitutional issues at stake, but that Beistline wants Miller to see if the state courts will address them before considering them in federal court.

• Contact reporter Pat Forgey at 523-2250 or

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