Reporting from Juneau, Alaska — The outcome of the U.S. Senate race in Alaska may well turn on a legal standard established by a state election so hotly contested it was eventually decided by a coin toss.
After a recount, two lawsuits and much hand-wringing, the 2006 balloting was still a tie. But despite the coin-flip ending, the case firmly established the state's approach in deciding disputed write-in ballots. "We have consistently emphasized the importance of voter intent," a court ruled.
In the current race between Republican Joe Miller and write-in candidate Lisa Murkowski, the Republican incumbent, legal experts say that Miller will probably have a hard time disputing write-in ballots just because of slight misspellings.
State courts across the country since the 19th century have adopted a similar "voter intent" standard, said Richard Winger, editor of the election law journal Ballot Access News.
"I am not aware of any state that says write-ins can't be counted unless the spelling is perfect," he said.
Facing almost certain defeat in Alaska courts — the state Supreme Court last week reiterated the voter intent standard — the Miller campaign has filed a federal lawsuit.
Miller is alleging that state officials are violating the U.S. Constitution's elections clause, as well as the equal protection clause of the 14th Amendment, by allowing the Division of Elections leeway to count ballots with derivations such as "Murkowsky" and "Morkowksy."
At issue is what appears to be a specific state law requiring that write-in ballots must have "the name as it appears on the write-in declaration of candidacy of the candidate, or the last name of the candidate." There can be "no exceptions" to this requirement, the law states.
In papers filed with the federal court, Miller attorney Thomas Van Flein argues that there's little room for state officials to exert their own interpretations.
Furthermore, the U.S. Supreme Court, in the 2000 case Bush vs. Gore, requires states to establish "specific standards" and "uniform rules," Van Flein argues.
"Rather than implementing the clear, specific and uniform standards for counting write-in votes set forth in Alaska [law], defendants and their counting boards apparently will be attempting to divine for themselves the 'intent of the voter' based on vague, amorphous, subjective — and unspecified — criteria," the Miller complaint said.
"This quixotic quest will result in the arbitrary and disparate treatment of write-in ballots in clear violation of the U.S. Constitution," the complaint added.
On one hand, several legal scholars said, Alaska's statute is one of the most exacting in the country.
"The statute does call for what we would call strict compliance. It says it's mandatory, and there are no exceptions," said Edward Foley, director of the election law program at Ohio State University law school.
But, he added, "The statute doesn't say a voter must spell it absolutely correctly, with not a single letter wrong."
On the other hand, the law allows voters to simply write the last name of the candidate, apparently allowing some variations, argued Daniel Lowenstein, professor of law and a specialist in election law at UCLA.
"I went through several alternative ways of interpreting the statute, and the only one that made sense is one that would allow a little bit of leeway," he said.
The fact that the Miller suit was filed in federal court could mean the issue gets resolved swiftly — many analysts believe the court will decide it has no jurisdiction because matters of election law have historically been left up to the states. The state has filed a motion to dismiss the case, in part on those grounds.
"The questions that are being asked are pure questions of state law," said Benjamin Ginsberg, a legal consultant for the Murkowski campaign who was a top lawyer for the Bush-Cheney campaign during the 2000 Florida count.
The Miller campaign's argument that the Constitution's election clause doesn't allow state administrative officials to deviate from the "no exceptions" state law also could have difficulty getting traction, some analysts said.
"It would mean that election officials could never create rules for implementing legislative statutes," said Richard Hasen, Loyola Law School professor and co-editor of the Election Law Journal.
Moreover, he said, a decision to suddenly abandon the state's voter intent standard could create a new problem for the state under the U.S. Constitution's requirements for due process.
In Juneau, one of the big questions is whether the legal wrangling will matter: Murkowski is still gaining 89% of the write-in ballots with no dispute, meaning the math, if not the law, is trending heavily her way.
That has been one of the biggest surprises of the count — the accuracy of the write-ins — and could be decisive, many analysts said.
More mistakes "would naturally have put more ballots in play," Ginsberg said. "It would have been a different ballgame if this had been a lot of random writing."