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.