Alaska Republican Senate candidate Joe Miller, being supported by the National Republican Senatorial Committee, has filed suit in federal court yesterday seeking an order blocking the Alaska Board of Elections from counting any write-in vote in his race if the name is not spelled exactly right. The complaint is here, and here is the motion for preliminary injunction. It's the latter one you should focus on.
Miller makes both statutory and constitutional arguments. As to the Alaska Statutes, Miller's attorneys highlight this section on counting ballots:
Sec. 15.15.360. Rules for counting ballots.
(a) The election board shall count ballots according to the following rules... (11) A vote for a write-in candidate, other than a write-in vote for governor and lieutenant governor, 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.
(b) The rules set out in this section are mandatory and there are no exceptions to them. A ballot may not be counted unless marked in compliance with these rules.
Miller argues that this statute allows for no discretion for the Board of Elections to count other ballots when it believes a voter's intent is manifest -- that such discretion empowers state officials to become "super voters" themselves.
Moreover (and more fun, perhaps), Miller argues that this violates the U.S. Constitution in two key ways:
- Because Article I, Section 4 of the Constitution specifies that "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof," and "by the legislature thereof" means that the state's executive and judicial officers have no discretion to alter what the legislature puts in place. This is known as a McPherson v Blacker (1892) argument, and the Rehnquist/Scalia/Thomas concurrence in Bush v Gore gave it some credence.
- I just mentioned Bush v. Gore. Remember that whole section on Equal Protection law which the per curiam opinion insisted was "limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities"? They've brought it back, arguing that Equal Protection is violated if a vote's being counted depends on which table of election officials happens to be reviewing it -- as to whether an L- scribblescribble-ski goes to declared candidate Lee Hamerski, Lisa Murkowski or no one at all. (How this violate any right of Miller's, as opposed to a voter's, is something I didn't understand in Bush v. Gore and don't get here either.)
Miller also raises the issue of "protest voters" -- that voters knew that Murkowski was trying to instruct people to spell the name exactly, and that the statute required it, so they announced on blogs and talk radio that they'd write in something wrong just to protest her rebellious write-in candidates. As such, under this standard adopted by the Board of Elections after
the election, such intended protest votes will instead be counted for
the candidate being protested. (Is this credible? Would people really use their votes this way in a tight race?)
In addition, there are state law claims regarding the method and timing by which Alaska adopted its new policies.
Miller's argument concludes, in part, on language from Justice Scalia explaining why the Supreme Court granted certiorari in Bush v Gore a decade ago:
The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.
(To which the dissenters argued, "Counting every legally cast vote cannot constitute irreparable harm.")
The defendants in this case are Alaska's lieutenant governor, whose statutory duties include the supervision of elections, and the Board of Elections itself. Presumably, the Murkowski campaign will seek to intervene as well.
What happens next? Let the wild rumpus start!