Court rejects Miller's election challenge

Posted: Sunday, December 12, 2010

A state judge has rejected losing Senate candidate Joe Miller's attempt to overturn Sen. Lisa Murkowski's write-in re-election victory, and Friday granted the Division of Election's request for dismissal of Miller's challenge.

Superior Court Judge William Carey found the state's write-in count valid, rejecting every one of Miller's claims.

Lt. Gov. Mead Treadwell called the ruling "decisive," and said it moved the state closer to having full representation in the U.S. Senate in January.

Certification of the results of Murkowski's 10,000-vote margin of victory was put on hold by a federal judge, pending the outcome of the state case. It is anticipated that Carey's Superior Court ruling will be appealed to the Alaska Supreme Court, though the Miller campaign was unclear on that Friday.

Carey ruled against all of Miller's claims, including its challenge of the "voter intent" standard that Elections Director Gail Fenumiai used to judge write-in ballots.

Miller claimed Fenumiai was not allowed to use that standard because it had not been adopted in a formal regulation drafting process.

Miller had sought to have misspelled or otherwise unusual write-in votes rejected.

"To allow for write-in votes with less than a perfect spelling of a candidate's name, as long as voter intent is clear, the Division has adopted a commonsense interpretation, which the court believes would be evident to most Alaskans," Carey wrote.

Treadwell Friday praised Carey's ruling in favor of the Elections Division.

"The most important decision is the one made by the voters on Nov. 2 and the job of our Elections Division is to make sure the voters' will is carried out," he said.

Carey also rejected Miller's call for a hand count of all of the ballots in the election, not just those with write-in votes on them. Miller said that was more accurate than a machine count, and might provide additional votes for him.

But, there is no provision for an extra hand count in state law, Carey said, and allowing it would actually require the state go through a formal regulation drafting process.

Carey further dismissed Miller's allegations of possible vote fraud, based on possible handwriting similarities among voters, saying they didn't amount to a credible claim of fraud.

"The votes being speculated upon could be the result of voters who asked for assistance to avoid potentially misspelling the name; and thus avoiding the litigation occurring now," Carey said.

Miller, he said, failed to provide any admissible facts required by state law to contest an election.

"Miller's affidavits do not provide any facts of wrongful conduct at polling stations and not even circumstantial evidence of wrongdoing," Carey said.

Carey had let Murkowski intervene in the case, over the objections of Miller, but Friday he rejected her claims as well. Murkowski sought to have votes counted where the oval was not filled in or where the votes were for "Lisa M.," but Carey agreed with Fenumiai that state law barred counting those votes.

Carey stayed his order until Tuesday, providing time for an expected appeal to the Alaska Supreme Court. Miller spokesman Randy DeSoto said a decision on a Supreme Court appeal is "under advisement."

In a statement issued Friday, DeSoto continued to contest the Murkowski on the same grounds as Carey rejected, hinting that an appeal may be coming.

DeSoto said "every valid write-in ballot should be counted, but not those that fail to meet the standard established by the state legislature."

Carey's ruling said that was the standard used by the Elections Division, but Miller appears still to contest that.

"When we've ensured that these issues have been addressed, then we'll have an accurate count, and if Lisa Murkowski's tally is greater than Joe's, then he will certainly honor that result," DeSoto said.

• Contact reporter Pat Forgey at 523-2250 or

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