In Alaska's predominately Native communities, strong write-in vote efforts appear to have driven incumbent Sen. Lisa Murkowski to victory over Republican primary winner Joe Miller.
The Associated Press has declared Murkowski the winner, but Miller has won a federal court injunction blocking the state's planned Nov. 29 certification of the results.
At the recent week-long write-in vote count in Juneau, Miller's observers fought unsuccessfully to deny Murkowski as many votes as possible, challenging any vote not in a standard format or with any misspellings.
So is what Miller is demanding the state use as its standard for vote counting an illegal "literary test," something that was banned by the Voting Rights Act of 1965, to disenfranchise Murkowski voters?
Such tests, which historians said were frequently rigged, were used to deny African-American and other minority citizens the right to vote in many southern and other states.
Alaska's elections officials, including Lt. Gov. Craig Campbell, say the state is using the well-established standard of "voter intent" to count write-ins, and that if they can determine who the voter was clearly trying to cast a vote for, it has been counted.
Miller spokesman Randy DeSoto denied there was anything unconstitutional about the standard Miller is demanding.
"This was the opposite of a literacy test," he said. "Voters were allowed to request, from election personnel at each polling location, the list of write-in candidates that had the correct spellings."
The Murkowski campaign also heavily advertised the spellings of her name, including mnemonic devices and other spelling aids, he said.
"They also could enter the voting booth with bracelets, temporary tattoos, pencils and a variety of other campaign memorabilia featuring the correct spelling of a write-in candidate's name," DeSoto said.
Miller's legal claim is that state law says a write-in vote, to be valid, must be written as it is in the candidate's statement of write-in candidacy. To Miller, that means any misspelling invalidates that vote, but Campbell said that's not how the state has interpreted that law in the past.
"While Mr. Miller claims that the state has gone outside its jurisdiction by using voter intent in counting ballots, we continue to point to various examples of case law throughout Alaska history, that show where the state courts have erred on the side of enfranchising voters when their intent is clear," he said.
Campbell said a fair election means ensuring Alaskans are able to vote for the candidate of their choosing.
"That Mr. Miller continues to try and disenfranchise voters is disappointing," he said.
Alaska's history of denying its Native residents the ability to vote resulted in a requirement under the Voting Rights Act that the U.S. Department of Justice has to approve redistricting plans to make sure legislative districts ensure a Native voice.
University of Alaska Fairbanks Political Science Professor Gerald McBeath said Alaska's courts have been clear on allowing votes to be cast.
"I don't think the Miller argument will be sustained as long as it stays in the state court system," he said.
Miller first filed his suit in federal court, but federal Judge Ralph Beistline in Fairbanks ruled that it was more appropriately addressed in state court, and last week the Miller campaign moved its case there.
Making write-in votes more difficult to cast in the Miller-Murkowski race would appear to predominately disenfranchise Native voters.
In House District 39, based around Nome, 70 percent of voters cast write-in ballots. In House District 38, around Bethel, nearly three-quarters did. Both districts have high proportions of Native voters.
In Southeast's predominately Native villages, such the Metlakatla, Kake and Angoon, the rates were nearly as high.
Before the write-in vote count took place, the Alaska Federation of Natives sought to get U.S. Department of Justice observers to monitor the vote count to keep Native voters from being disenfranchised.
At that time Miller mocked the group's request, saying it was assuming that "rural Alaskans, and Alaska Natives in particular, don't know how to spell."
He said they deserve more credit than AFN was willing to give.
AFN Executive Director Julie Kitka did not return calls from the Empire.
Contact reporter Pat Forgey at 523-2250 or patrick.forgey@ juneauempire.com.