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Miller lifts certification opposition, fights on

Posted: Tuesday, December 28, 2010

JUNEAU- Republican Joe Miller is making a last-ditch effort to invalidate the results of Alaska's U.S. Senate race following two stinging defeats in state courts.

In papers filed in federal court Monday, Miller removed his opposition to the state certifying results favoring his GOP rival, Sen. Lisa Murkowski. But Miller is seeking a hearing of his claims that the state violated provisions of the U.S. Constitution in its handling of the race and counting of ballots for Murkowski, who ran as a write-in candidate.

Miller's attorneys also asked U.S. District Judge Ralph Beistline to extend the post-certification deadline for seeking a recount or election contest until Beistline rules on the merits of his case and "all appeals have been exhausted."

"With the election results certified, and Alaska's full congressional delegation representing the interests of Alaska's citizens in Congress, it will not be necessary to dispose of this case in an extremely expedited manner, limited discovery should be allowed to commence and proceed as necessary, and this Court can fully consider the substantial constitutional claims Plaintiff Miller has raised," they wrote.

An attorney for the state, Margaret Paton-Walsh, said Miller doesn't raise any "substantively new" claims. In a court filing Monday, she said Miller was unlikely to succeed on the merits of his claims, and she questioned the justification for what he was now seeking.

Senators are to be sworn in with the start of the new Congress next week. Attorneys for the state and Murkowski have pressed for a speedy resolution to ensure full representation, and Beistline himself has said Alaska should have a senator in place when the new term begins, even if that means later having to replace that person when all legal disputes are eventually resolved.

The state is asking Beistline to lift the stay by the end of Tuesday. A spokeswoman for Gov. Sean Parnell said that if Beistline does so, Parnell and Lt. Gov. Mead Treadwell will sign the certification paperwork Thursday.

Miller initially sued in federal court but Beistline determined the state courts were in a better position, at least initially, to decide who had won. Beistline barred the state from certifying the race until issues raised by Miller were addressed.

Last week, the state Supreme Court refused to overturn results favoring Murkowski and said it found "no remaining issues" raised by Miller that prevented certification. But Miller attorney Michael Morley said Monday the federal court is responsible for deciding the federal claims and must look specifically at state election law in making a determination - "regardless of what the state courts chose to do."

Miller's campaign has indicated he's willing to take his case to the U.S. Supreme Court, if necessary, but is taking his legal challenges one step at a time.

It's not immediately clear how much Miller has in the bank; his last report to the Federal Election Commission showed he had raised more than $241,000 between Nov. 3, the day after the election, and Nov. 22, the end of the reporting period. Recent press releases have closed with "P.S." notes, seeking donations of up to $100, and noting they're paid for by the "Joe Miller for US Senate Recount."

Murkowski, who is not a party to the federal lawsuit, has stopped actively raising money, her campaign manager has said. She is seeking to become the first U.S. Senate candidate since 1954 to win with a write-in campaign.

Unofficial results showed Murkowski ahead by 10,328 votes, or 2,169 votes if those challenged by Miller's camp during a weeklong hand count are excluded.

Miller's attorneys argued the state should be held to a strict reading of a law calling for write-in ballots to have ovals filled in and the candidate's last name or name as it appears on the declaration of candidacy written. Spelling, they said, mattered.

The state used discretion in determining voter intent and allowed for ballots with misspellings to be counted toward Murkowski's tally.

The state Supreme Court ruled last week that voter intent is "paramount."

In court filings Monday, Miller's attorneys said the state's "attempt to effectively nullify" provisions of the law "by establishing their own standards" for counting write-in ballots is unconstitutional, violating the elections clause of the U.S. Constitution.

In spite of prior rulings against Miller, and the math, Miller attorney Thomas Van Flein said the case is not moot.

He wrote in the federal filings that even if a ruling by Beistline doesn't change the outcome or trigger a state-funded recount, Miller still has an interest in ensuring the final numbers are accurate. He said the margin by which a candidate loses affects how the public perceives that person, and that it also affects the candidate's ability to raise money, run in future races and be a public spokesperson.

While Miller lifted his objection to the race being certified in the near-term, his attorneys asked in a separate filing that the judge bar certification "based on a count that involved any of the federal constitutional violations" alleged.

Morley said the election would have to be re-certified if the judge sides with Miller and determines the election results are based on an "unconstitutional tally."



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