JUNEAU, Alaska – U.S. Sen. Lisa Murkowski's campaign declared she's headed for re-election, saying her rival's unverified voter fraud claims and frivolous challenges of write-in ballots are pointing to his desperation.
Murkowski, whose hopes for another term hinge on her winning a write-in effort, undisputedly held 89.8 percent of that vote with 45,132 ballots counted so far. That's enough for her campaign to feel she's poised to win, in spite of thousands of outstanding ballots yet to be uncounted and a pending legal case.
Another 9.5 percent of write-in ballots were challenged, though most of those were counted toward Murkowski's tally — coming on objections over misspellings or penmanship.
Shortly after the second day of write-in ballot counting began on Thursday, a Miller observer challenged a vote for Murkowski that appeared to have her name spelled and printed correctly, though the "L'' in "Lisa" was in cursive handwriting. Later, at least 10 ballots in which Murkowski's name appeared readable were challenged, including one in which the vote read: "Lisa Murkowski Republican."
Miller's campaign said observers are simply challenging votes that don't meet the strict letter of the law — including those with minor misspellings of Murkowski's name or those with legibility or penmanship issues.
"The Murkowski campaign can say whatever it wants," Chip Gerhardt, a Miller observer and attorney sent to the state by the National Republican Senatorial Committee. "What's going on here, our focus is on following the law."
Murkowski spokesman John Tracy sees it this way: "What this says to us is, they're simply trying to delay the inevitable."
The law calls for write-in ballots to have the oval filled in and either the candidate's last name or the name as it appears on their declaration of candidacy scrawled in — in this case, either "Murkowski" or "Lisa Murkowski."
But the state is using discretion to discern voter intent, pointing to prior case law as their basis in doing so. State Division of Elections director Gail Fenumiai, the final arbiter in the counting process, said if the name is phonetic to Murkowski or there are minor misspellings, she's counting it for Murkowski. It's an effort aimed at not disenfranchising any voters.
The percentage of challenged votes is key: If a judge agrees that they don't meet the legal standard of votes for Murkowski and tosses them aside, Miller's camp says it would make the race very tight, possibly forcing a recount.
Murkowski attorney Ben Ginbserg countered that case law makes clear this is a state that heavily favors voter intent.
Miller has filed a federal lawsuit, seeking to bar the state from counting ballots that do not meet the standards set out in law. Briefings in the matter are set for next week.
The case law that state officials and Ginsberg point to does not refer to a write-in campaign but to the marking of ballot ovals, and it gives weight to voter intent.
Edward Foley, an election law scholar and law professor at Ohio State University, sees where a valid argument could be made by either side.
"I can see a judge easily saying there's no wiggle room under the statute or there's a little wiggle room but not a lot," he said. Some courts in election matters have taken a "tough luck," rules-are-rules approach, he said, while others have proved more lenient to keep voters from being disenfranchised.
Also Thursday, a strategist for Miller, Floyd Brown, raised the specter of voter fraud and intimidation but offered little proof of this, prompting Murkowski campaign manager Kevin Sweeney to cast it as "desperation" in the face of current numbers.
More than 92,900 write-in ballots have been cast in the race, with thousands of absentee and questioned ballots still coming in or yet to be addressed. Write-ins led Miller by a margin of 10,799 as of Wednesday night.
The write-in count could extend into the weekend.