Patterico's Pontifications

11/11/2010

Judge Denies Miller’s Request for Injunction

Filed under: General — Patterico @ 11:01 am



Joe Miller’s request for an injunction has been rejected by a federal judge, who claims in this order that Miller has failed to show irreparable harm:

Given that the questionable ballots will remain segregated and subject to subsequent review, with the results recorded separately, the Court finds no good reason to enjoin counting the ballots while the underlying Complaint is addressed in due course. Plaintiff has shown no potential for irreparable harm by allowing the Division of Elections to proceed with its hand-count as scheduled.

This is an interesting stance when contrasted with the Supreme Court’s actions in Bush v. Gore. Recall that the High Court halted a recount that was, in its view, being conducted in an unconstitutional manner. In a concurrence, Justice Scalia explained the reasoning behind his vote:

The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election. Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.

However, Justice Scalia also alluded to the additional problem that the manual recount could affect the result by degrading the ballots, an issue that does not appear to be a problem in the Miller recount. If votes that misspell Murkowski’s name are being segregated from the (apparently quite large) number that properly spell it, and if the properly spelled ballots for Murkowski outnumber the votes cast for Miller, it’s game over, and the controversy over the spelling will not matter to the result.

I would still like to see the issue resolved, though, because I think it is important for such an important race to be conducted in accordance with the law. As I explained in an earlier post, the law in Alaska does indeed require that write-in voters spell the candidate’s last name correctly. I have seen some counterarguments that I believe are entirely lacking in merit, and I’d like to explain why (in a separate post, as this one is getting kind of long).

8 Responses to “Judge Denies Miller’s Request for Injunction”

  1. Yeah, I think Scalia’s right on this issue. The problem is, and I think maybe you should tease this out a little more in the post, is this.

    The rules have to be in place, before the counting starts.

    Otherwise, the courts can be accused of picking a method of counting tailor made to get the results they want. I mean in Bush v. Gore, there was a lot of doubt as to whether counting the dimpled chads or the dangling chads was more likely to benefit bush or gore. Yes, I know both candidates seemed to know, but not really. But if the votes were already counted, that could in theory clear up the mystery.

    So while I sympathize with the judge saying, “hey, are we even sure it is going to matter?” it is precisely BECAUSE we don’t know right now if it will matter, that we need to have the fight now.

    Aaron Worthing (e7d72e)

  2. The rules have to be in place, before the counting starts.

    That makes sense in theory… I wonder how practical it is in reality.

    I mean, there is going to be a lot of quibbling about whether, for example, an “a” is an “o” — and depending on the result, the ballot will be spelled correctly or, alternatively, misspelled.

    How can the court write rules that cover when a handwritten letter is an “a” and not an “o”, and cover rules for all contingencies like that?

    As I recall in the Bush v Gore nightmare, that was part of the problem: not only determining whether a dimpled/dangling chad “counted”, but what actual was a dimpled or dangling chad.

    That said, the Scalia sentence…

    The counting of votes that are of questionable legality does in my view threaten irreparable harm to petitioner Bush, and to the country, by casting a cloud upon what he claims to be the legitimacy of his election.

    … struck me then (and now, still) as embarrassingly bad legal reasoning. It makes the bar for injunctive relief frightfully low, because it basically says “Plaintiff/petitioner thinks he’s going to win the legal challenge, and if we allow anything to go forward that casts a cloud on that view, the plaintiff/petitioner suffers for it… irreparably”. Wow.

    The standard is (and was, ten years ago) CAUSING irreparable harm (not “threatening” it), and I’ve never heard of “casting a cloud on one’s claims” as rising to that level (irreparable harm).

    Kman (d25c82)

  3. The issue is that the legislature sets the rules. I have more in my new post on why Miller is right.

    Patterico (c218bd)

  4. One practical issue is that if Murkowski’s campaign has a count, they have a better idea of how many absentee ballots to challenge.

    And, of course, the Alaska media will characterize one type of vote challenge as an affront to democracy while characterizing the other as just having the law followed.

    Dustin (b54cdc)

  5. The standard is (and was, ten years ago) CAUSING irreparable harm (not “threatening” it), and I’ve never heard of “casting a cloud on one’s claims” as rising to that level (irreparable harm).

    The standard is a likelihood of irreparable harm absent a preliminary injunction.

    Patterico (c218bd)

  6. The standard is a likelihood of irreparable harm absent a preliminary injunction.

    Fair enough. The “likelihood” was implied in my definition (likelihood of causing), and I may have jumped on Scalia too soon there.

    Still, “casting a cloud” on the legitimacy of one’s case-in-chief? If that’s the standard than injunctive relief would ALWAYS be granted, wouldn’t it?

    Kman (d25c82)

  7. As I said early on in the Florida mess: flip a coin.

    Kevin M (298030)

  8. This is why I hate lawyers. If the voters of Alaska want a dishonorable, insincere fool of a Senator, they have the right.

    ID (3e1a46)


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