JUNEAU - The Alaska Supreme Court delivered another stinging setback to Republican Joe Miller, refusing to overturn election results that favored his GOP rival, Lisa Murkowski, in the state's U.S. Senate race.
The high court on Wednesday upheld a lower court's ruling dismissing Miller's claims of impropriety in the state's handling of the election and ballots for Murkowski, who waged a longshot write-in campaign after losing her primary to Miller. It found "no remaining issues raised by Miller that prevent this election from being certified."
It's now up to Miller to decide if the election is finally over.
A federal judge, who had put a hold on certification to give the state courts time to rule on Miller's claims, said Wednesday in light of the holiday he would give Miller until Monday to plead any outstanding issues to him. If Miller chooses to fight on, the state will have until Dec. 29 to respond, and U.S. District Judge Ralph Beistline said he'd take the matter under advisement then.
Miller initially filed a lawsuit in federal court, claiming the state violated the Elections and Equal Protection clauses of the U.S. Constitution in its handling of the race. But Beistline said Miller's claims about the state's handling of the election should first be addressed by the state.
Miller spokesman Randy DeSoto said Miller's team is reviewing the high court's decision and weighing its options and chances of prevailing in the federal courts.
In a statement, Miller, an attorney and former federal magistrate, said his legal fight has been upholding the law and preventing the state Division of Elections from "seizing for itself the power to be able to affect the outcome of elections based on what write-in votes it chooses to count."
Lt. Gov. Mead Treadwell, who oversees elections, said the state would be asking Beistline to lift his stay. The director of the state Division of Elections has said the race could be certified within hours of the stay being lifted. The state and Murkowski are eager for a rapid resolution; senators are sworn in for the new Congress Jan. 5.
"We felt all along that this election should have been certified, and I'm glad the Supreme Court took the time to come to a reasoned decision," Murkowski attorney Scott Kendall said.
Miller had appealed state court Judge William Carey's decision to toss out his challenge to the state's counting of ballots for Murkowski. Miller maintained the state should be held to the letter of the law, which calls for write-in ballots to have the oval filled in and the last name of a candidate or the name as it appears on the declaration of candidacy written in.
He wanted the results of the election to be invalidated and for a hand recount.
Murkowski mounted a write-in campaign, the likes of which Alaska had never seen, after losing the primary to Miller. Unofficial results showed her leading by 10,328 votes following a tedious, weeklong handcount of ballots. The lead narrowed to 2,169 votes when ballots challenged by Miller's campaign were excluded.
The state pointed to case law in defending its practice of using discretion in determining voter intent, allowing ballots with misspellings to be counted toward Murkowski's tally. Attorneys for the state and Murkowski argued Miller was seeking to disenfranchise thousands of voters.
The high court, in a 4-0 ruling, called voter intent "paramount," and said "any misspelling, abbreviation, or other minor variation in the form of the candidate's name on a write-in ballot does not invalidate a ballot so long as the intention of the voter can be ascertained."
"The State characterizes the standard urged by Miller as the 'perfection standard,' and we agree that such a standard would tend to disenfranchise many Alaskans on the basis of 'technical errors,'" the court decided.
Justice Craig Stowers, who recused himself, did not participate in the decision.
Miller also raised questions about voting irregularities, including precincts where election workers failed to mark whether they'd gotten voters' identification and ballots with similar signatures. The latter may have been due to voters asking for and receiving legally acceptable help in casting ballots. He also raised the specter that felon sex offenders may have been wrongfully allowed to cast ballots.
Carey tossed the first two claims as unsupported. The justices agreed: "Pure speculation cannot support a fishing expedition for evidence to oppose summary judgment in an election contest."
Carey didn't rule on the third claim, raised late by Miller. Miller's attorney argued Miller should have been given further time to investigate all the concerns.
The high court remanded to Superior Court Miller's claim that felons may have wrongfully cast ballots, should Miller wish to pursue it. But it said he'd first have to prove that the votes in question are sufficient to change the election's outcome.
"In light of our other rulings and the current voting tally, it appears to us that the number of votes in question would have to be in the tens of thousands to change the result of the election," the court said.
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