Joe Miller’s legal team says if you couldn’t spell it right, it shouldn’t count:
Votes that misspell Lisa Murkowski’s name shouldn’t count as the state today tallies write-in ballots in the U.S. Senate race, Senate candidate Joe Miller said in a federal lawsuit Tuesday.
Miller is asking a judge to stop the state from making a judgment on a voter’s intentions if the voter wrote in something other than “Murkowski” or “Lisa Murkowski.” State law allows no leeway for other spellings, his lawsuit says.
At first glance, this might seem overly formalistic and harsh. Say a voter intends to vote for Lisa Murkowski, but writes in “Lisa Murkowsky.” Miller is saying that shouldn’t count as a vote for Murkowski?
Correct — and it looks to me like he’s right. And should be.
Miller’s legal papers, which you can read here (.pdf), argue that, under Alaska law, a write-in candidate’s name must be written “as it appears on the write-in declaration of candidacy.” The filing quotes legislative language saying:
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.
As the Al Franken recount showed, recounts are messy propositions — and depending on the standard you choose, it can sometimes be quite difficult to interpret a ballot. (A good set of examples from the Franken recount is discussed here.) If the Alaska Legislature chose to set out clear rules to avoid such a situation, I say more power to them.
Miller has another argument that is interesting:
Prior to the election, people commented on radio stations and in the comment sections in blogs and newspaper stories that they would deliberately incorrectly write-in a variation of “Murkowski” as a protest. They did so knowing that Murkowski was spending hundreds of thousands of dollars on a “spelling bee” campaign, replete with wrist bands, pencils and tattoos, all to educate the voters on proper spelling. Why was this done? Because even Murkowski had read the law and knew that it required proper spelling — “No exceptions.” So protest voters were trying to send a message to the candidate.
In other words, Miller’s lawyers claim that people who misspelled Murkowski’s name on a write-in ballot may have been mocking her, “safe” in the knowledge that their vote would not be counted for her because of the state’s clear laws. At a minimum, this argument throws a monkey wrench at a court trying to ignore the clear language of the law to apply a murky “intent” standard. (See what I did there?) Whether it’s a persuasive monkey wrench is another issue.
I haven’t examined the case law, but the statutory language seems crystal clear. Even if, as I have heard, Alaska applies an “intent of the voter” standard as to your standard ballot markings, I’m not sure the same case law would govern write-in ballots, in the face of such clear rules.
INTENTIONALISM POSTSCRIPT: Note that, under an “intentionalist” argument, when a voter intends to cast a vote for Lisa Murkowski, that is a vote for Lisa Murkowski regardless of what markings appear on the ballot. A voter could write in the words “Joe Miller” and the intentionalists would tell you that the ballot is a vote for Murkowski — as long as the voter subjectively intended to vote for Murkowski. What’s more, they would tell you that any statute mandating otherwise is a “rewriting” of the ballot.
This is yet another illustration of why pure “intentionalism” is unworkable in several legal settings, recounts being one obvious example. What matters is whether the objective evidence of the markings on the paper reflect a vote for a particular candidate, as determined by a reasonable observer. What’s more, if the law says that the ballot is improperly marked, it doesn’t count.
It’s a formalistic approach, to be sure. But a degree of formalism is absolutely essential to making law work.
Sorry, Lisa. Your illiterate voters should not have their votes counted. The Legislature has spoken.