Published November 19, 2010
ANCHORAGE, Alaska -- The GOP candidate in the Alaska U.S. Senate race asked a federal judge Thursday for a preliminary injunction stopping officials from certifying the election.
Murkowski on Wednesday declared victory in the race, the first Senate candidate in more than 50 years to win a write-in campaign.
Miller's lawsuit claims Alaska law requires voters to write in a candidate's name as it appears on a declaration of candidacy, or the last name of the candidate, to cast valid ballots.
Alaska Lt. Gov. Craig Campbell, who oversees the Division of Elections, has said voter intent would drive acceptance of ballots and that previous court cases had supported that policy. Elections officials have credited Murkowski with ballots that contain minor misspellings.
Murkowski has a lead of about 10,400 votes. Miller had challenged 8,153 of the ballots counted for Murkowski, but he would still be behind even if he won every challenge.
However, Miller in an affidavit Thursday said the Division of Elections began its hand count of write-in ballots a week earlier than scheduled.
"Consequently, my campaign team and I were forced to pull together volunteer observers at the last minute, and did not have time to adequately and fully recruit and train them before counting began," he said. "As a result, an indeterminate number of ballots with candidates' names misspelled were counted without being challenged during the first several days of counting."
Miller said he intends to request a re-count.
Miller attorney Thomas Van Flein also said the state's policy is a departure from past practices of rejecting such write-in votes.
Van Flein filed an affidavit from former Lt. Gov. Loren Leman, who served under Murkowski's father, former Gov. Frank Murkowski. Leman said he would not have accepted misspelled names on write-in ballots.
"If an election had been held during my tenure as lieutenant governor in which write-in votes had to be counted, I would have directed the division director to follow a strict interpretation of election law, and let a court direct otherwise if a candidate and the court disagreed with the division's analysis," he said.
Miller's campaign filed the lawsuit last week as hand counting of write-in ballots began.
Anchorage U.S. District Court Judge Ralph Beistline denied Miller's request to immediately stop the state Division of Elections from counting write-in ballots that strayed from the exact spelling of a candidate's name.
On Monday, state officials filed a formal brief in opposition to the lawsuit. Thursday was the deadline for Miller to reply.
Van Flein said in his filing Thursday that Miller was revising his injunction request because the Division of Elections has nearly finished its vote count.
He said the state had not addressed the "overarching dispute" that interpreting voter intent is too "vague, amorphous and subjective to apply as the sole standard for counting ballots."
Van Flein said Alaska law "flatly prohibits the counting of write-in votes unless the candidate's name is written as it appears on the write-in declaration of candidacy."
He asked the court to stop elections officials from accepting as valid any write-in votes in which a candidate's name was misspelled or was not written on the ballot as it appeared on the candidate's write-in declaration of candidacy.
Miller campaign workers had challenged, among others, votes that listed Lisa Murkowski's last name first.
Murkowski, with a campaign war chest that contained upward of $1 million and high name recognition, jumped back into the race.
The state has tentatively set election certification for Nov. 29.
Assistant Attorney General Margaret Paton-Walsh said by e-mail that no hearing has been scheduled and Judge Beistline could render a decision without one.
Campbell was out of town Thursday. Division of Elections Director Gail Fenumiai, who reviewed disputed ballots and decided wither they should be credited to Murkowski, said by e-mail she had not seen the latest court filing and had no comment.