On November 9, Joe Miller, Republican nominee for U.S. Senate in Alaska this year, filed a federal lawsuit, arguing that the State Elections Division would be violating the U.S. Constitution if it counted write-ins for Lisa Murkowski that are not spelled correctly. The case, Miller v Lieutenant Governor Craig Campbell, 3:10-cv-252, was assigned to Judge John W. Sedwick, a Bush Sr. appointee. UPDATE: Judge Sedwick recused himself, and now U.S. District Court Judge Ralph Beistline, a Bush Jr. appointee, has the case.
In 1999, the Alaska election laws were amended to say “A vote for a write-in candidate shall be counted if the oval is filled in for that candidate and if the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided.” The same bill deleted the ability of voters to use stickers. A “sticker” is an old-fashioned method of helping voters cast write-in votes. It is a gummed label of a write-in candidate’s name, and the write-in candidate would prepare these and distribute them, so that voters would not need to know how to spell, nor would they need legible handwriting.
Miller’s brief quotes the new Alaska law correctly, but his attorneys appear to hope that the reader will not notice that the Alaska law says that the write-in vote is valid if only the surname is written in. The Miller brief has rhetoric in several places that paraphrase the law as requiring that the write-in be “exactly” the same as the candidate’s name as shown on her declaration of write-in candidacy. But, of course, the law actually allows the surname only, so “exact” is not a fair paraphrase of the law. The brief also asserts that the amendment to the write-in law was made “in the wake of Bush v Gore”, but that is not true; Bush v Gore was decided on December 12, 2000, more than a year after the Alaska legislature had amended the law. It seems very likely that the 1999 amendment was made in response to the 1998 gubernatorial election, when 43,571 write-ins were cast, most for Robin Taylor, the choice of the Republican Party for Governor.
Miller’s brief does not mention federal law, which says, “No government official shall deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under state law to vote in such election.” A misspelled word meets the definition of “error”. This law is part of the Voting Rights Act, 42 USC 1971(a)(2)(B).
The most interesting part of Miller’s brief is his argument that the U.S. Constitution does not permit state officials, other than the legislature, to promulgate election rules for federal elections. This theory is what put four minor parties on the Ohio ballot in 2008. There is no valid ballot access law for minor parties in Ohio, and the Secretary of State had tried to fill in the gap, but a U.S. District Court ruled that the U.S. Constitution does not permit election procedures for federal elections that were not passed by the legislature. On the other hand, this theory did not work in three other ballot access cases filed in 2008, in Louisiana, Pennsylvania, and Mississippi.
Having not seen the Complaint, I am curious to learn how the Article I argument fits in here. Is the claim that elections officials are not following the Legislature’s command? If so, that is a legitimate theory.
Note that the argument did not fail in Louisiana and Mississippi. The courts in those cases ended up dismissing on mootness grounds without resolving the merits. The Fifth Circuit in the Mississippi case, moreover, found the argument credible and sent the matter back to the District Court for further proceedings.
I wish there was a little common sense here. What if Miller was running and voters were writing in his name as “Millar.” Obviously the voter wants Murkowsky even if spelled wrong. Why should that vote not count if they spell her name ending in an “I” instead of a “Y”?
Rediculous!
In regard to # 1, let me add that I don’t think a federal court has the authority to stop a senatorial vote count. The Supreme Court said about thirty years ago that such a matter presents a political question for the Senate to decide.
“A vote for a write-in candidate shall be counted if the oval is filled in for that candidate and if the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided.”
There is an OR in this statement. So the name can be the full name as it appears in the declaration OR the last name.
#1 The Article 1 argument is that the Director of Elections was disregarding explicit legislative directives as to what was a valid vote (essentially the same as in Ohio – where it did not matter that legislative directive had been ruled unconstitutional).
In Mississippi the law was at worst ambiguous. The filing deadline for other offices was specified as 5 pm in statute, and the Secretary of State was required to keep regular business hours, except for those certain circumstances that they legislature had explicitly provided for.
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I can see two ways of interpreting the law.
1- “A vote for a write-in candidate shall be counted if
a)the oval is filled in for that candidate and if the name, as it appears on the write-in declaration of candidacy, of the candidate or
b) the last name of the candidate is written in the space provided.”
2 – “A vote for a write-in candidate shall be counted if the oval is filled in for that candidate and
a) if the name, as it appears on the write-in declaration of candidacy, of the candidate or
b) the last name of the candidate is written in the space provided.”
The one possible interpretation does not require the oval to be filled out if the last name of the candidate is written in the space…
I did not find the Miller complaint rhetorical at all, unlike your complaint in the California Top 2 Open Primary case. It correctly quotes the law, and boldfaced the particular language about surnames, that you claim was hidden.
Your interpretation of the language of the VRA is tenuous. There is not an issue of whether a voter is qualified to vote, such as leaving off an immaterial item from a voter registration form. Since Alaska is a VRA Section 5 jurisdiction, presumably Alaska filed the change to its law, and the USDOJ did not object to its implementation.
On what basis may the Director of Elections presume that any of the write-in votes were cast for Frank Murkowski’s daughter, and that there should be special procedures in place for her apparent write-in votes but not any of the other 150 or so equally qualified write-in candidates? It certainly gives an impression of favoritism, that is inappropriate for an election official.
I didn’t find anything that connected ‘Gore v Bush’ to the 1999 change in the Alaska election law. Do you have a more specific reference?
BTW, the recusal order by the first judge assigned the case was rather interesting. The 2nd judge refused to issue a TRO, saying that the counting procedure would ensure the votes with murky intent would be segregated.
Just another Tea Party Republican retard.
… and another poster boy (and girl) for repealing the 17th Amendment. Our Founders intended the U.S. Senate to represent the state legislatures in federal Congress, not spelling challenged voters.
#8, see page 16 of the Motion for Preliminary Injunction. It says, “In the wake of Bush v Gore, the legislature amended the section.”
How about having numbers for write-ins — since many folks can NOT spell or even print letters any more ???
Who was write-in candidate No. 666 ???
——–
U.S. Const. Art. I, Sec. 5, para. 1 part —
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members ***
— due to the political WARS in the 1500s-1600s in England – the EVIL English monarchs versus the Parliaments.
i.e. – whatever the AK State morons do is likely to be appealed to the Donkey controlled U.S.A. Senate.
Is L.M. a Donkey in disguise ???
The U.S.A. Senate is of course one of THE most ANTI-Democracy legislative bodies due to the many very small below average States — including AK.
P.R. and App.V.
#8 HB 163 was passed in April 2000.
Whether the law was passed in reaction to Bush-Gore 2000, or was simply an act of prescience by the Alaska legislature, is immaterial to the basic argument being made: that the Director of Elections making up rules on the fly violates equal protection, by depriving voters of the surety that their vote will counted in a consistent manner with that of other voters.
There was widespread public knowledge that exact spelling was required. Just as many voters declared as write-in candidates as a protest, there were public suggestions that voters write-in misspellings as a protest vote. How can the Director of Elections divine what the intent of a misspelled name was?
WOW – the Alaska Legislature has a time machine?!?
That’s the only way they would be able to pass a bill in 1999 or April 2000 in response to Bush v Gore that was decided on December 12, 2000…
an interesting aside. The campaign chairman is the chairman of Sealaska Corp which gave well over 100k to Lisa’s campaign.
To protect ballots, the Div of Elections hired a corporation some of whose board members are employees of Sealaska and work for its CEOs and President.
Fox in the hen house and no one is blowing the whistle
My name is Jay Merkowski. I should’ve run for senator.
I just got off the phone with Christine O’Donnell in Delaware. She is asking “where in the Constitution does it mention write-in voting”? Obviously Miller is on to something here. More power to him…to make himself look like a jackass.
Please, please, please let there be a photographer around Miller when he is confirmed as the loser. Although in fact he already is a Loser regardless of the election results.
#5, that sounds like a credible argument. Article I is violated if the agent does not follow the legislative rules (in congressional vote-counting). The EP argument is very weak, however, notwithstanding Bush v. Gore. Most scholars and judges recognize that Bush v. Gore was a one-shot ruling in terms of EP. In any case, I dont think the federal court can do anything about it under Roudebush v. Hartke (1972), which recognizes that vote-counting in senatorial elections presents a political question.
14th Amdt, Sec. 2 was NOT updated by the party hack MORONS when the 17th and 19th Amdts were adopted.
How many write-in votes in 1868 ??? — when there was much better handwriting (by voters who could read and write).
The idea that the names of declared write-in candidates can be posted at a polling place could have interesting ramifications on other races. I wish I could have voted in Alaska this year. I think there is a long conversation to be had about the size of the posting with the names on it, and the proximity of the names as posted and the ballot itself. Could we see a precident being set where future candidates in high profile races will just file as write-ins to conserve campaign resources? As a reaction to that will we see ballot access requierments for write-ins and, of course, ballot listed candidates both get tougher?
Is there a picture of the list of names, as posted at the polling place? How big was it? Where was it? Was looking at the list an official step in the process of voting?
How many voters wrote the L.M. name on their bodies or clothes or a piece of paper before voting ??? — and then even spelled it wrong on the ballots ???
How long will the gerrymander U.S.A Senate take to determine who was elected ??? See # 12 above.
#20 The names weren’t posted (or at least not in general). They were available for voters who “requested assistance” in voting. The state election officials had to seek preclearance from the USDOJ under the VRA since this was change from past procedures.
Not all States permit primary election losers to run in the general election. Alaska law is a bit unusual in that it specifically invites candidates that lose a primary:
AS 15.25.105. Write-in Candidates. If a candidate does not appear on the primary election ballot or is not successful in advancing to the general election and wishes to be a candidate in the general election, the candidate may file as a write-in candidate.
In Texas, write-in candidates are treated more like on-ballot candidates. Candidates for most offices must pay either a filing fee, or a petition, and do so by early September. On the other hand, lists of write-in candidates are posted within voting booths.
In other States, Louisiana and Hawaii, write-in votes are not allowed.
#23 Deny abridge — 14th Amdt, Sec. 2 is still in the nearly dead U.S.A. Constitution.