Fairbanks judge moves Senate case to Juneau

Posted: Tuesday, November 30, 2010

JUNEAU - A state court judge has moved a lawsuit over Alaska's still-disputed U.S. Senate race from Fairbanks to the state capital, Juneau.

John Wagner / Fairbanks Daily News-Miner
John Wagner / Fairbanks Daily News-Miner

Judge Douglas Blankenship said the case brought by Republican nominee Joe Miller raises statewide issues and that he believes it's inconvenient for the state to be involved in a case in Fairbanks, about 620 miles from Juneau.

He said it may be necessary for a recount or for disputed ballots to be inspected and that he did not want to do anything that might "further risk the integrity of the election" - like moving the ballots from Juneau to Fairbanks.

Blankenship told attorneys a status hearing would be held Wednesday.

He did not rule on whether Sen. Lisa Murkowski could intervene in the case, saying he'd leave that to the next judge.

Murkowski ran as a write-in candidate following her loss to Miller in the GOP primary. She declared victory earlier month, as the last ballots were tabulated.

Unofficial results show her leading Miller by 10,328 votes. Excluding votes challenged by Miller observers, she still had a 2,169-vote lead.

However, a federal judge conditionally halted certification of the race, which was to have happened Monday, saying Miller's challenge to the counting of write-in ballots raised "serious" legal issues that should be decided by a state court. Miller was given time to file a state suit.

Miller alleges the process used by election officials in assessing write-in ballots was flawed. He said the state must be held to the law - counting ballots with the ovals filled in and either Murkowski's last name or the name as it appears on the declaration of candidacy. He also favors a hand count of all the ballots.

Election officials, pointing to case law, used discretion in determining voter intent, allowing for ballots with misspellings or those phonetic to Murkowski to be counted toward her tally.

Murkowski's attorneys argued in court papers that she'd suffer irreparable harm if she weren't allowed to intervene - notably, she risks a potential loss of her seniority and place as ranking member on the energy committee if she's not sworn in with the new Congress on Jan. 3. But Miller's attorneys countered that the state - the defendant in the case - was more than capable of protecting her interests.

Murkowski's attorneys, in a court filing Monday, also accused Miller of "a disregard for the truth," saying claims he's not challenging ballots with the ovals filled in and Murkowski's name spelled perfectly is "not even close to accurate." They point to challenged ballots that read "Murkowski, Lisa," which Miller's camp has acknowledged should not have been challenged. Others had "Republican" written behind Murkowski's name, her name scrawled below the write-in line or sloppy penmanship.

Her attorneys also took issue with Miller's claim that he did not have enough time to adequately prepare for the hand count of write-in ballots, saying Murkowski had the same notice as Miller. Miller attorney Thomas Van Flein told Blankenship logistics prevented Miller's camp from having a full complement of ballot watchers when the count began Nov. 10.

Miller spokesman Randy DeSoto told The Associated Press in an e-mail Monday that because of this, "it is quite likely that hundreds, if not more, of misspelled ballots were counted over the first few days without being challenged."

Murkowski's attorney, as part of their pleadings, provided an affidavit from state GOP chairman Randy Ruedrich, who said he was told by a Miller campaign worker on Nov. 5 that the campaign was ready for the count.

Miller supported an unsuccessful attempt to oust Ruedrich in 2008. The state party backed Miller during general election but called for him to concede after the final ballots were tallied.

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