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Alaska judge rules against Miller in Senate race

The 'tea party' Republican loses a legal bid for a full hand recount after incumbent Lisa Murkowski's victory in a write-in campaign. State officials move to certify the election results.

December 10, 2010|By Kim Murphy, Los Angeles Times

Reporting from Seattle — "Tea party" Republican Joe Miller lost his legal bid Friday to reopen the U.S. Senate race in Alaska that incumbent Lisa Murkowski won in an unusual write-in bid.

The decision in state court was a crucial setback to Miller's hope for a full hand recount, though he still can appeal in state and federal courts.

State officials moved immediately to end the stay on certifying the election that a federal judge had imposed pending the state court decision. The federal court gave Miller until Monday to file objections to expediting the final federal court process.

"This decision was a stinging rebuke of all his claims," Murkowski's campaign manager, Kevin Sweeney, said in an interview. Sweeney said he expected the remaining hearings to proceed quickly enough to allow Murkowski to be seated as a senator on Jan. 5.

"We hope it is becoming clear to Alaskans, even former supporters of Mr. Miller, that his campaign to disenfranchise Alaska's voters is entirely self-indulgent," Sweeney said in a statement. "We again appeal to Mr. Miller to live up to his promise of not continuing with a legal challenge if the votes don't add up, now that it is clear he has lost the election by more than 10,000 votes."

Miller campaign spokesman Randy DeSoto said an appeal to the state Supreme Court is "under advisement."

"The purpose of the legal action is to ensure that the integrity of the vote is upheld," DeSoto said in a statement. "When we've ensured that these issues have been addressed, then we'll have an accurate count, and if Lisa Murkowski's tally is greater than Joe's, then he will certainly honor that result."

In his ruling, Superior Court Judge William Carey in Juneau rejected challenges raised by both Miller and Murkowski.

Miller argued that state law requires write-in ballots to contain a candidate's name exactly as it is spelled on their certification of candidacy. The campaign had challenged more than 8,000 ballots, many of them containing variations in the spelling of Murkowski's name.

But the judge agreed with state election officials, who contended that legal precedent in Alaska weighs in favor of determining voters' intent. The state Division of Elections counted write-ins for Murkowski even when they contained minor misspellings of her name.

"If exact spellings were intended by the Legislature, even with respect to the most difficult names, the Legislature could have and would have said so," the judge said.

The judge also rejected Miller's argument that scrutinizing Murkowski's write-in ballots by hand gave her an unfair advantage, allowing many ballots to be counted for her that initially might have been thrown out by the vote-counting machines.

Carey also ruled against Miller's claims that the failure of election workers to check a box confirming they had verified the identification of hundreds of voters, and other apparent anomalies, constituted enough evidence of malfeasance that it warranted an exhaustive examination of the ballot counting.

"In a perfect election, those boxes would be checked," the judge said. But he added that the Miller campaign failed to provide specific evidence that election officials were not carrying out their duties honestly and in good faith.

"Nothing rises to the level showing genuine material facts of fraud," the judge said.

Murkowski lost on her argument that write-in ballots should be counted for her if they were marked for "Lisa M." and when the oval next to the write-in blank was not checked.

Rick Hasen, law professor at Loyola Law School in Los Angeles, said Miller's legal options now were limited.

"I have no reason to think the Alaska Supreme Court would reach any other conclusion," Hasen said. He said the court's conclusion that Miller failed to object to the "voter intent" policy before the election also suggests that Miller's arguments are not likely to gain much ground in federal court.

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