Patterico's Pontifications

11/11/2010

More on Why Joe Miller Is Right to Insist on Correct Spellings

Filed under: General — Patterico @ 11:47 am



As I explained in an earlier post, the law in Alaska requires 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.

As always, let’s start with the language of the statute. The legislature has been very clear:

(11) A vote for a write-in candidate, other than a write-in vote for governor and lieutenant governor, shall be counted if the oval is filled in for that candidate and if the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided.

(All bolding in this post is mine.) If that wasn’t clear enough, the legislature added this:

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.

Got it?

Let me first address the constitutional arguments raised by Gabe Malor at Ace of Spades. Gabe’s basic argument is that the statutory language can’t override the U.S. Constitution, and that requiring correct spelling is somehow unconstitutional:

This is the part where I disagree with Patterico: The Alaska legislature may have spoken, but the legislature cannot by statute override the U.S. Constitution, which protects, among other things, the right to vote and to have your vote counted.

Not so. I explained this to James Taranto waaay back in 2003:

[W]e commonly speak of the 19th Amendment as giving women the “right to vote,” or the 15th giving slaves the “right to vote” — but we are wrong to do so. The 15th Amendment prevents the Government from depriving citizens of the right to vote on the basis of race, color, or previous condition of servitude. The 19th Amendment prevents the Government from depriving citizens of the right to vote “on account of sex.” But nothing in the Constitution prevents the Government from depriving everyone equally of the right to vote. You can read the Constitution as long and hard as you like, but you won’t find a provision anywhere in it that confers upon ordinary citizens something called the “right to vote.”

I suspect that Gabe, who didn’t name the part of the Constitution upon which he relied, was making an equal protection argument — namely, Alaska applies an “intent of the voter” standard to normal bubble votes, and can’t apply a stricter standard to write-in votes.

But, of course it can. A government can make distinctions if those distinctions do not infringe upon the rights of a protected class, and there is a rational basis for those distinctions. Here, requiring complete accuracy on the part of write-in voters fulfills a critical governmental objective of conferring a level of certainty and clarity upon the election results. That is plenty rational.

What’s more, there is a constitutional principle at stake for Miller — one that completely undercuts Gabe’s argument. Article I, section 4 of the Constitution states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . .” Simply put, the rules for senatorial elections are set by the state legislature, period, end of story. [UPDATE: unless, as commenter aphrael points out, Congress changes the rules, which the clause allows it to do, with certain limitations. But Congressional changes to the rules are not relevant to the current scenario.]

How absolute is this rule? This absolute: if the state legislature wanted to tell the citizens of its state that they had absolutely no right to vote for Senators whatsoever, the legislature could do so! The legislature could say, consistent with the 14th Amendment’s equal protection clause: you voters can stay home. We’ll go ahead and select your Senator all by ourselves. [UPDATE: this is no longer the case because of the 17th Amendment, of course, but the point is that it took the 17th Amendment and not the 14th to change it. Thanks to Karl for helping me to make the point more accurately.]

That would be total disenfranchisement, would it not? And yet, perfectly consistent with the 14th Amendment and equal protection. How do I know this? Because, when our country was first founded, this is how Senators were actually chosen.

Moving on from the constitutional arguments, we now confront interpretive arguments regarding the language. There are two arguments I have seen.

The first argument claims that the phrase “as it appears on the write-in declaration of candidacy” modifies the phrase “the name … of the candidate” but not the phrase “the last name of the candidate.” Therefore, the argument goes, a voter may misspell the last name only to be misspelled if it appears by itself on the ballot.

I quoted it above, but for ease of reference, let me once again quote the relevant statutory passage:

(11) A vote for a write-in candidate, other than a write-in vote for governor and lieutenant governor, shall be counted if the oval is filled in for that candidate and if the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided.

To read the language in this strained manner, one must come to a grinding halt just before the word “or” — even though there is not even a comma to break up the sentence there. Then, after reading the word “or,” you then read the phrase “the last name of the candidate” as if it were completely divorced from the earlier part of the sentence. Thus, the argument goes, the last name of the candidate need not be “as it appears on the write-in declaration of candidacy.”

I think this argument is a stretch, for a couple of reasons. First, I think the most natural reading is a reading in which the modifying phrase modifies both the phrase “the name … of the candidate” and the phrase “the last name of the candidate.” There is no comma or period in the sentence before the word “or” and thus no reason to come to a halt when you hit that word. Moreover, I can’t see why the legislature would give more leeway to misspell the last name when it appears alone. Adding the first name makes the voter’s choice even more clear and certain. So why allow a misspelling only when the last name appears in isolation? Because this strained reading leads to an absurd result, that is another reason Miller’s reading (that any version of the name must be as it appears in the declaration of candidacy) is more natural.

Remember: a textualist reading of statutory language must be reasonable.

And that is why the second argument also fails. This argument claims that the phrase “as it appears on the write-in declaration of candidacy” requires the voter to duplicate the size and font of the text of the declaration of candidacy. To state the proposition is to mock it. It is not a reasonable reading of this language that a voter be required to bring in a word processor and reproduce the font and size of the candidate’s name, and any contention along those lines is just frivolous.

I have yet to see a decent argument that misspellings are allowed on an Alaska write-in ballot. And this is important, because the law matters. I encourage Joe Miller to take this one all the way. Upholding the law as written is a core American value. There is no shame in forcing the courts to uphold this principle. Go Joe!

UPDATE: I tweaked the post to make the good points raised by aphrael and Karl in comments below. My point related to the interface between the 14th Amendment’s equal protection clause and article I, section 4 of the Constitution. The post now makes that point more clearly.

202 Responses to “More on Why Joe Miller Is Right to Insist on Correct Spellings”

  1. Patterico, I think you’re misreading section 4 when you say:

    Simply put, the rules for senatorial elections are set by the state legislature, period, end of story.

    Because the part of the Elections clause you elide goes on to say:

    but Congress may at any time make or alter such Regulations, except as to the Place of chusing Senators.

    So a more accurate representation woudl be to say that the rules for Senatorial elections are set by the state legislature, unless Congress chooses to override them.

    Why does Alaska choose its Senators on the second Tuesday of November? Because Congress said so.

    aphrael (e0cdc9)

  2. That would be total disenfranchisement, would it not? And yet, perfectly constitutional. How do I know this? Because, when our country was first founded, this is how Senators were actually chosen.

    However, the 17th amendment now provides:

    The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years…

    So total disenfranchisement in the case of Senate races might be problematic. But maybe not. I’m taking today off, so I could have missed something,

    [Nope, you’re right. I updated the post and, among other clearly marked updates, changed the word “constitutional” to “consistent with the 14th Amendment’s equal protection clause.” That’s the point I was really trying to make, not a point about what could be done today. Thanks for helping me make the point more accurately. — P]

    Karl (83846d)

  3. The rules of grammar say you’re wrong, Patterico.

    if the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided.

    Your reading would be valid only if the phrase in bold, which is inside the commas, qualifies both “name of the candidate” or “the last name of the candidate”. And if you apply the usual rules of syntax, it can’t. Your reading would be good only if the phrase in bold had appeared after both of the phrases you claim it qualifies.

    Consider this example: Patterico is a blunt, but zealous, blogger and a prosecutor. By your reading, we would be entitled to interpret that as meaning you are blunt and zealous not only in your blogging but in the dispatch of your duties as a prosecutor–but we can’t. (And I’m not implying you aren’t zealous in carrying out your job!) The sentence as written doesn’t allow that reading.

    It’s possible that whoever wrote this legislation was guilty of bad syntax, and did intend what you claim is the correct interpretation–but as it is written, the statute does not allow that reading. You’d have to get there by intentionalism, and given the approach you’re taking, I doubt you want to go there.

    kishnevi (6c49d9)

  4. Patterico

    While I agree with the bottom line—miller has the correct argument—I can’t quite agree with your constitutional analysis. For instance, you write:

    > if the state legislature wanted to tell the citizens of its state that they had absolutely no right to vote for Senators whatsoever, the legislature could do so! The legislature could say: you voters can stay home. We’ll go ahead and select your Senator all by ourselves.

    You say this to establish that the state legislature has something like dominion in determining the rules for elections.

    The problem is that the state CAN’T do that, under the 17th amendment. That’s why Beck and others want it to be repealed. You have a constitutional right to a popularly elected senator.

    And further, in Bush v. Gore, the supreme court said that while technically the state legislature doesn’t have to let the people vote for their presidential electors:

    > When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.

    So that implies that the right is fundamental here, and thus subject to strict scrutiny.

    Further, when a state rule is shown to have racially disparate impacts, it might be modified by the courts, which is why we don’t have literacy tests and all of that.

    Which is not to say you are wrong in your conclusion, but its not as simple as saying, “the legislature is king, here.”

    What has to apply here is equal protection and due process. Due process is only to count a vote if you can be certain it is really is a vote. And the rules told everyone how to make it certain and they even gave you the ability to have a cheat sheet. So even being dyslexic myself, I have zero sympathy for anyone who claims that their vote for her was cancelled out. The legislature told them how it was going to be, and they had an obligation to follow the rules, especially given that idiotic decision by some to protest all this by intentionally misspelling murkowski’s name to annoy her.

    And of course if we go to a free floating voter intent approach, then equal protection is impossible.

    So consider my views a concurring opinion, if you will.

    Aaron Worthing (e7d72e)

  5. Btw, all this being said, the law nerd in me LOVES this kind of discussion.

    Aaron Worthing (e7d72e)

  6. Oh, i see much of what i said was mooted by updates.

    But my other point was that in Bush v. Gore they said that once the people had the right to vote in the election, that right was fundamental. So you do have serious 14th Amendment concerns here, at least under case law.

    Aaron Worthing (e7d72e)

  7. Aaron: yes, Karl made that point above and I have updated the post to reflect his observation. I did not mean to be focusing on the current state of affairs, so much as I was trying to explain that the 14th amendment’s equal protection clause did not change article 1, section 4.

    Popular voting for Senators did not begin because of the equal protection clause, is the point.

    (Justice Scalia has made a similar point about the 19th amendment, by the way.)

    I made my original argument in a very sloppy manner, though, that appeared to negate the existence of the 17th amendment. You and Karl were right to call me on it.

    Patterico (c218bd)

  8. Consider this example: Patterico is a blunt, but zealous, blogger and a prosecutor. By your reading, we would be entitled to interpret that as meaning you are blunt and zealous not only in your blogging but in the dispatch of your duties as a prosecutor–but we can’t.

    Consider this example: “Patterico is a blunt, but zealous, blogger and prosecutor.”

    Does that say I am a blunt and zealous prosecutor?

    I believe it does.

    Patterico (c218bd)

  9. Off topic question–anyone know why my browser titles the main page “Patterico’s Pontifications–Flash Player Installation”. This appears only for the main page and not the comment pages. (And yes, I haven’t updated Flashplayer in some time.) This is both in IE and Firefox.

    kishnevi (14ed7d)

  10. The problem is that the state CAN’T do that, under the 17th amendment.

    To be fair, I think he’s talking about the interpretation of the Constitution as originally written.

    The 17th amendment is a wierd special case involving just the election of Senators. But it doesn’t change the meaning of the original constitution in any other way – so if it was possible under the constitution to deny anyone who didn’t own property the right to vote (for example), it’s still possible to do that after the passage of the seventeenth amendment.

    Two things that aren’t clear to me:

    (a) what effect does the Guaranty clause have on the ‘right to vote';

    (b) to what degree did Baker, et al, suggest that the 14th amendment prohibits restrictions like property restrictions (under the equal protection clause) or require that people be allowed to vote (under either due process or P&I)?

    aphrael (e0cdc9)

  11. To be fair, I think he’s talking about the interpretation of the Constitution as originally written.

    Correct, as I have now made clear in updates.

    Patterico (c218bd)

  12. Simply put, the rules for senatorial elections are set by the state legislature, period, end of story…. The legislature could say: you voters can stay home. We’ll go ahead and select your Senator all by ourselves.

    Well, no, it’s not period, end of story. Not since 1913. There’s the 17th Amendment which specifically empowers the people of each state to vote for that State’s senator. Which is why you CAN’T have total disenfranchisement.

    Sure, states can limit WHO can vote (by age, felons, etc.), but it is pretty clear historically there are constitutional implications involved when legislatures disenfranchise any group, or any person.

    And I think you need to look at the 24th Amendment which, while not declaring a right to vote, sort of assumes a priori that it exists.

    [Please read the version of the post with the updates. It’s been updated for a while now. — P]

    Kman (d25c82)

  13. I agree that the courts must decide this, and that Miller is legally correct to insist on following the law, but I’m not as convinced as you are that the text requires the exact, precise spelling.

    The law does not specifically address spelling. Nor does it say that the name must be written “exactly” as it appears, just “as it appears.”

    Your rebuttal argument to that, I presume, would be to suggest that “as it appears” would have no meaning in the statute if it did not require proper spelling, and of course it is improper, generally, to interpret a statute in such a way as to render them meaningless.

    But it might indeed mean something other than spelling. Consider the occasionally popular candidate John “None of the Above” Doe. Or perhaps the New York candidate Jimmy “The Rent Is Too Damn High” McMillan. Suppose his name is on the list of write-in candidates as Jimmy McMillan, and somebody writes in “The Rent Is Too Damn High.” That would be an invalid vote, because it is not the name of the candidate “as it appears” on the list. A subjective intent standard would still find that as a vote for McMillan, but such a finding would be prohibited by the statute.

    Thus, I think there is a reasonable interpretation of the Alaskan statute as not strictly requiring the correct spelling, purely as a matter of textual analysis.

    PatHMV (ec6571)

  14. Ooops. Missed the updates.

    Kman (d25c82)

  15. Patterico @8: you are allowed to say that only because you rewrote my example by dropping the indefinite article. In the statutory language, there’s a definite article to mark off the second phrase “the last name of the candidate”, which is parallel to the “a” in my example.

    IOW, as written, the phrase inside the commas applies only to the first alternative, because it appears inside the first alternative phrase, not next to it (as it does in your rewrite of my example) or after both.

    The way the statute should have been written, if your interpretation was the one intended by the legislature would be if the name of the candidate or the last name of the candidate is written in the space provided, as that name appears on the write-in declaration of candidacy. But it’s not.

    You are hereby ordered to re-read Strunk and White :)

    On another tangent–CNN this morning was reporting that Miller is challenging not only misspelled names but names that aren’t completely legible.

    kishnevi (f479c7)

  16. hey Kman, if you want to find a fundamental right to vote, you should look at… the majority opinion in Bush v. Gore. But then that would mean that you would have to acknowledge that the case was correctly decided.

    And the 24th amendment no more establishes a right to vote than the 15th or 19th.

    Aaron Worthing (e7d72e)

  17. Didn’t we see this in Florida in 2000? Democrat officials deciding who a voter meant to vote for, when the ballot was clearly marked for someone else.

    What is to stop a Democrat official from deciding that “Miller”is a mis-spelling of “Murkowski?”

    Weren’t there 160 or more possible write in names? Can she claim them all as mis-spellings of hers?

    Machinist (74634b)

  18. Joe Miller is a whiny loser.

    He conveniently abandons his own principles in order to win an election by suing in a Federal court, when he has said over and over he wants the Feds out of states’ decisions.

    JEA (c769b4)

  19. Aaron – I think you can look to Bush v. Gore and maintain that the part which claimed the right to exist exists was correct, while the part which found an equal protection violation was incorrect. That’s not inconsistent.

    On the substantive issue, my policy preference is that any vote which can be accurately determined is to be counted. If there’s a list of certified write-ins, then a misspelling of one of the names which is obviously a misspelling of that particular name, should still be counted – just as a write-in which doesn’t fill in the bubble should be, or a write-in which simply restates the name of one of the candidates on the ballot, etc.

    That said, I don’t believe this standard of interpretation is constitutionalized, so the constitutional argument really goes nowhere in my mind. And if the legislature has adopted a different policy by law, as they appear to have done in Alaska, then the executive agency responsible for implementing it should comply with the law. People like me who don’t like that law can advocate for the legislature to change it.

    aphrael (e0cdc9)

  20. aph

    i think we almost exactly agree, then. miller is right. but maybe the law could loosen up a little, but only by a new statute.

    Aaron Worthing (e7d72e)

  21. hey Kman, if you want to find a fundamental right to vote, you should look at… the majority opinion in Bush v. Gore. But then that would mean that you would have to acknowledge that the case was correctly decided.

    Never said every single sentence of BvG was wrong. Just the rationale for the main holding and the relief.

    And the 24th amendment no more establishes a right to vote than the 15th or 19th.

    It certainly acknowledges “the right to vote”, does it not? What, from a practical standpoint, is the difference?

    Kman (d25c82)

  22. kishnevi,

    Nice try, but I think you’re the one who is going to have to re-read Strunk and White.

    It is true that my example omitted the article from the second noun. However, your example omitted it from the first. In the statute, after the modifying phrase, there is an article before each noun.

    So, to make the example a true parallel, you would have to say something like this:

    Patterico is blunt and zealous as a blogger and a prosecutor.

    Would you read that as saying I am a) “blunt and zealous as a blogger” and also that I am b) a prosecutor (but not necessarily one that is blunt and zealous)?

    Or would you give it the far more natural reading: that I am blunt and zealous as both a blogger and a prosecutor?

    When you make the parallelism clear (either no article for either noun, as in my original example, or an article for each AFTER the modifying phrase, as in this example and in the statute) it is clear what the legislature meant.

    Patterico (c218bd)

  23. On another tangent–CNN this morning was reporting that Miller is challenging not only misspelled names but names that aren’t completely legible.

    I would have to see the ballots to know whether the challenges are well founded or not.

    Patterico (c218bd)

  24. Joe Miller is a whiny loser.

    He conveniently abandons his own principles in order to win an election by suing in a Federal court, when he has said over and over he wants the Feds out of states’ decisions.

    Comment by JEA —

    Ha!

    That’s just too obvious an application of ‘make them live up to their own set of rules’.

    You can be a federalist or a limited government proponent and still ask for the law to be followed. Believe it or not, but federalism is even rooted in the US Constitution.

    You might as well demand people not use the police or interstates if they like spending cuts on entitlements.

    Dustin (b54cdc)

  25. Here’s the more interesting question (to me anyway).

    I’ll bet a lot of voters who wrote (or mis-wrote) Murk’s name failed to fill the oval, which the statute requires.

    Do THOSE get set aside? Even if her name is correctly spelled?

    Kman (d25c82)

  26. That was remarkably idiotic, even for you, JEA.

    To those that think the spelling is not important, how many letters used incorrectly would you allow?

    JÐ (b98cae)

  27. JEA, and if Joe Miller does not sue in Federal court, a court that’s already intervened in the case, then by that single action the Federal government will thereafter stay out of state affairs.

    Sheesh, you don’t really think this nonsense of yours convinces anyone do you?

    SPQR (26be8b)

  28. PatHMV:

    That is an interesting analysis, but I still believe that a misspelled name is not “as it appears” on the ballot.

    And the legislature gave us a clue with that “no exceptions” language. If they had omitted that, and instead included some language about how the precepts of the law were signed to effect the intent of the voter, and that ballots should be construed liberally to effectuate that intent, I think this would be a different case.

    But, as Judge Kozinski has reminded us in a different context, when a legislature bothers to tell us how to construe their statute, we should listen. And the legislature in Alaska spoke loud and clear on this one.

    Patterico (c218bd)

  29. aphrael ,
    If you were counting the ballots I would be fine with going to the closest but we have seen that we can’t count on reasonable standards of ethics and fairness from some of those that do the counting. I still remember that lady twisting and bending the ballot until she got a chad to break loose and then proudly claiming the voter had punched two spaces so his Bush vote was invalid. There was also the claims that Buchanan voters must have meant to vote for Gore but the evil deceptive ballots (designed and approved by Democrats) were tricking Democrats into voting incorrectly, though his votes matched the pre-election poll percentages. People who game and abuse the system force strict compliance on us.

    Machinist (74634b)

  30. Aaron – I’ve read over and over again that Alaska, in general, has an intent-of-the-voter standard. I couldn’t find it in the Alaska election code and am unwilling to take the time to research it in state court decisions … so I have no opinion as to whether Miller is right about Alaska’s law.

    Assuming he is, I think the law should be loosened so that any clear and unambiguous vote can be counted. I dislike ballot rules which appear to discriminate against third-parties or write-ins.

    Assuming he isn’t right, I think the proponents of counting a vote have the burden of demonstrating intent, and given the presence of “Lisa M” on the ballot, I think there are a lot of cases where intent can’t be disambiguated.

    aphrael (e0cdc9)

  31. I’ll bet a lot of voters who wrote (or mis-wrote) Murk’s name failed to fill the oval, which the statute requires.

    Do THOSE get set aside? Even if her name is correctly spelled?

    Of course they do. I don’t even think that’s a close question. If the law is followed, that is.

    Patterico (c218bd)

  32. I’ll bet a lot of voters who wrote (or mis-wrote) Murk’s name failed to fill the oval, which the statute requires.

    Do THOSE get set aside? Even if her name is correctly spelled?

    The law seems to require them to be.

    IMO it’s a stupid law. But, unless there’s something somewhere else which overrides it, it’s the law.

    aphrael (e0cdc9)

  33. Aaron – I’ve read over and over again that Alaska, in general, has an intent-of-the-voter standard. I couldn’t find it in the Alaska election code and am unwilling to take the time to research it in state court decisions … so I have no opinion as to whether Miller is right about Alaska’s law.

    The point is, regardless of what the case law says, the statute is right there in front of your nose — as is the provision of the Constitution that says the LEGISLATURE (or, yes, Congress, with certain limitations) sets the rules.

    NOT the courts of Alaska.

    So you already have all the tools you need to know whether Miller is right. This is one situation where the case law cannot make a difference, because constitutionally the courts of Alaska are not allowed to override (or interpret out of existence) the clear language of the legislature.

    That is why I feel comfortable making pronouncements about Miller’s position without researching the case law. And you should too.

    Patterico (c218bd)

  34. Kish, Patterico

    I think the simpler approach is to say this.

    Kish if you are right, then they are requiring exact spelling if you write out the whole name, but a “close enough” standard on the last name.

    So person A writes “Mercowski” and that counts?

    But person B writes “Lisa Mercowski” and that doesn’t count?

    How does that make any sense?

    (and i picked that example, because if you think about it, a person mocking her and not wanting to vote for her might call her Mercowski, using “Merc” to call her a mercenary.)

    Aaron Worthing (e7d72e)

  35. Machinist – Good to see you!

    daleyrocks (940075)

  36. IMO it’s a stupid law. But, unless there’s something somewhere else which overrides it, it’s the law.

    Well, the “intent of the voter” standard (arguably) might override the picayune requirement of filling in the oval.

    Kman (d25c82)

  37. This is one situation where the case law cannot make a difference, because constitutionally the courts of Alaska are not allowed to override (or interpret out of existence) the clear language of the legislature.

    Moving into the realm of theory – I could imagine a state constitutional provision which overrides this.

    Although that gets into an interesting federal constitutional issue which has not yet really been answered by the Supreme Court:

    can a state’s constitution bind the state legislature’s power to regulate federal elections?

    the plain language of A1S4 suggests the answer is no.

    aphrael (e0cdc9)

  38. the “intent of the voter” standard (arguably) might override the picayune requirement of filling in the oval

    absolutely.

    can you point me at where that standard arises in Alaska law?

    aphrael (e0cdc9)

  39. The law seems to require them to be.

    IMO it’s a stupid law. But, unless there’s something somewhere else which overrides it, it’s the law.

    I’ll let you in on a secret. When I first started writing about this, I planned to take the position that Miller was stretching and desperate. In my original draft, I hyperlinked the article about his lawsuit to the words “Nice try.”

    But before I hit publish, I went ahead and found his papers and read them. Then I found the statute and read it. Because I don’t like to opine on legal issues without familiarizing myself with the law. (In contrast to how, say, Althouse chose to blog about this. I guess if I were a law professor I could then toss out unreasoned opinions, attach a “clearly” to them, and proudly hit publish.)

    And when I read the law, my mind was COMPLETELY changed.

    Rule of law, folks. I would be arguing the same thing even if Murky was the Tea Party favorite and Miller the corrupt establishment incumbent.

    (Of course, I’d be taking a lot more crap from my readers in that scenario, so I am perfectly happy to be taking Miller’s side here, just for my psychological health. But the law is the law, period.)

    Patterico (c218bd)

  40. Although that gets into an interesting federal constitutional issue which has not yet really been answered by the Supreme Court:

    can a state’s constitution bind the state legislature’s power to regulate federal elections?

    the plain language of A1S4 suggests the answer is no.

    Correct. And in Bush v. Gore, going from memory, three principled justices made a similar ruling as regards the parallel provision relating to presidential elections.

    Of course the two squishes refused to sign on to that concurrence. But the concurrence was 100% right. Of that I feel certain.

    Patterico (c218bd)

  41. Aaron,

    Your comment 34 is basically a restatement of one of the arguments I made in the post. It is nice and clear since you use an example to make it concrete.

    Patterico (c218bd)

  42. can you point me at where that standard arises in Alaska law?

    Nope. Case law, presumably. But that’s according to one side. So who knows?

    Kman (d25c82)

  43. Patterico

    > And when I read the law, my mind was COMPLETELY changed.

    Yeah, that was how i was too. I was probably going to write something until you told me you were going to. and my initial thought was, if they mispell it a little it should probably count. then i read the dang complaint and was impressed enough that i sent you that email pointing you toward it, hoping you would see what i saw.

    I still reserve judgment. her reply could be so awesome that it changes my mind back. but right now, i think he is right.

    which reminds me, i need to hunt down murky’s reply.

    Aaron Worthing (e7d72e)

  44. And for anyone listening in, Patterico had written the post before i sent the email. this is a case of great minds thinking not alike, but very similarly.

    Aaron Worthing (e7d72e)

  45. daleyrocks,
    Thank you, Sir.

    Machinist (74634b)

  46. I don’t think you can use the “no exceptions” clause to define the meaning of the first clause, Patrick. You can equally plausibly read it to say “yes, absolutely no exceptions: if the voter writes “The Rent Is Too Damn High,” you can’t use an intent of the voter argument to wiggle out of the requirement. If the first clause simply doesn’t address the issue of spelling at all, then the second clause, which also doesn’t mention spelling, can’t transform its meaning.

    If you interpret “as it appears” and the “no exceptions” clause as you’re reading it, I think that could also lead to other absurd results.

    Here is the official list of write-in candidates for U.S. Senator from Alaska. Here’s a typical entry: “Chimene Mills (Republican)”. Under your argument, a write-in for “Chimene Mills” might be invalid, because it doesn’t include the (Republican) after it, and that’s how the name appears, exactly, on the write-in list.

    But (Republican) isn’t part of the name, you say, and the statue specifies the name? Ok. What about the candidate who writes in “Mills, Chimene”? Under your argument, that can’t count, because that’s NOT exactly how the name appears on the write-in list. I hope you will agree that it would be an absurd result to invalidate a vote because the voter wrote last name, first name (which, incidentally, is how the pre-printed candidates all appear), rather than first name last name.

    PatHMV (ec6571)

  47. Kman

    don’t tell me you are shooting off your mouth without reading the law again…

    Patterico

    Feel free to use my example, with credit of course.

    Aaron Worthing (e7d72e)

  48. It’s been a while since I’ve done research on this, but it also comes up in the context of redistricting. Redrawing congressional district borders is a regulation under A1S4 … so can state courts draw districts? or independent redistricting commissions?

    This really hasn’t been satisfactorally answered. There are a lot of cases which assume that it’s true that courts can redistrict. Probably the most clear answer comes from a district court case (Smith v Clark, 189 F.Supp.2d 548) which argues that “Legislature” is not confined to the institutional body of the legislature, but encompasses anything vested with legislative power by the state constitution – which allows initiatives, for example, or independent redistricting commissions.

    aphrael (e0cdc9)

  49. Kman

    don’t tell me you are shooting off your mouth without reading the law again…

    Wow. Hostile much? I’m just asking “think” questions, because this interests me on an academic level. Being neither a Republican nor a conservative nor an Alaskan, I have no dog in this fight*, so I have nothing to shoot my mouth off about.

    * OK. There would be some entertainment value for the next several years if Miller wins.

    Kman (d25c82)

  50. But (Republican) isn’t part of the name, you say, and the statue specifies the name? Ok. What about the candidate who writes in “Mills, Chimene”? Under your argument, that can’t count, because that’s NOT exactly how the name appears on the write-in list. I hope you will agree that it would be an absurd result to invalidate a vote because the voter wrote last name, first name (which, incidentally, is how the pre-printed candidates all appear), rather than first name last name.

    In that example, the last name of the candidate would have been written in the space provided, as it appears in the declaration. Sure, the first name was also written, but I don’t see the problem with that. The ballot would still comply with the language of the statute.

    Patterico (c218bd)

  51. I don’t think a ‘no exceptions’ to a rule saying the name must appear has anything to do with noting the additional information on the declaration, such as party.

    I just don’t see how that relates, when the law is quite clear it’s referring to the name. However, as best as I can tell, if you listed her name as it appears, with the (Republican), or if you listed her name without that, both of these satisfy the requirement.

    One is “as it appears” and the other is the actual name of the candidate.

    As far as the last name first, I think the law again answers this in a similar way. Her name, as it appears, or her name.

    Dustin (b54cdc)

  52. I hope kishnevi will come back to address my parallelism argument. I don’t see any possible counterargument to what I said. Will this be a rare blogospheric example of a mind being changed by irrefutable logic? Stay tuned!

    Patterico (c218bd)

  53. So if somebody votes for “Lesa Murkowski,” that would count, because it has the last name spelled correctly on it, and the first name is immaterial?

    If that’s the case, why does the statute reference the full name at all, if the only important thing to do is put the last name?

    PatHMV (ec6571)

  54. Kman, @42: ok, fair enough. You’re not far from where I am, then – I hear this allegation about an intent-of-the-voter standard but can’t see it.

    That said, if Patterico is correct in his analysis of the law – and I’m willing to concede that he probably is – I really disagree with the Alaska Legislature’s policy decision, and want them to change it.

    California’s election code does not appear to address this issue.

    aphrael (e0cdc9)

  55. What about the candidate who writes in “Mills, Chimene”? Under your argument, that can’t count, because that’s NOT exactly how the name appears on the write-in list.

    if the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate

    I think what’s really being argued is the meaning of.

    ‘name or name as it appears on declaration’

    + ‘no exceptions’

    I think last name first is OK. I think the name with whatever special added designations appear on the declaration is OK. I think the name in some other form, such as Murcorruptski, is not OK… that’s an exception.

    Dustin (b54cdc)

  56. “But Congressional changes to the rules are not relevant to the current scenario.”

    Is there an argument that the Voting Rights Act prohibition on literacy tests applies?

    imdw (0275b8)

  57. Patterico, you and I had competing posts over on Hot Air. If the outcome of the election depends on whether or not to count write-in ballots which misspell her last name (assuming they don’t also contain her first name), then I’m very sure that the Alaska courts will read the statute to only require correct spelling when the entire name is written.

    You can argue that this reading of the statute isn’t reasonable, but (i) it does seem to be what the statute says and (ii) reading it that way, in that instance, is more reasonable than ignoring the clear intention of voters.

    Jimbo (87e69d)

  58. By the way, this argument could matter quite a bit. Currently, if Miller loses the court argument, he is on track to lose anyway — but only by about 750 votes, extrapolating the number of current ballots to the whole race.

    That 98% number you heard yesterday is counting the illegal ballots for Murky. That is not the standard that should be used, but it is driving popular perception.

    Patterico (c218bd)

  59. To those that do not want to follow the law, as written, and want to ignore such picayune things like marking the oval, how many mistakes are allowed? Where would you draw the line? And frankly, why bother passing laws since you want to interpret them to mean something other than what they say?

    JÐ (b98cae)

  60. #

    Patterico, you and I had competing posts over on Hot Air. If the outcome of the election depends on whether or not to count write-in ballots which misspell her last name (assuming they don’t also contain her first name), then I’m very sure that the Alaska courts will read the statute to only require correct spelling when the entire name is written.

    You can argue that this reading of the statute isn’t reasonable, but (i) it does seem to be what the statute says and (ii) reading it that way, in that instance, is more reasonable than ignoring the clear intention of voters.

    jimbo,

    I’m glad you’re here.

    Since kishnevi isn’t currently around to address the grammatical argument I have been making, what do you say to it? Read the posts and the interchange in the comments between kishnevi and myself.

    Patterico (c218bd)

  61. You can argue that this reading of the statute isn’t reasonable, but […] reading it that way, in that instance, is more reasonable than ignoring the clear intention of voters.

    Even with the “no exceptions” language clearly informing us of legislative intent to ignore that kind of demand for an exception?

    Dustin (b54cdc)

  62. So if somebody votes for “Lesa Murkowski,” that would count, because it has the last name spelled correctly on it, and the first name is immaterial?

    It’s not immaterial. If the courts have an “intent of the voter” standard, I would suppose that standard could be used to fill in the gaps in situations not expressly addressed by the law. If there is no other Murkowski running, and the first name is misspelled slightly in such a way that a reasonable person could conclude that the voter meant “Lisa,” I assume that vote would count — as long as the last name is written “as it appears” on the declaration of candidacy, as required by the statute.

    If that’s the case, why does the statute reference the full name at all, if the only important thing to do is put the last name?

    To make it clear that either the full name or the last name is OK. Not referencing the full name might leave open the possibility that someone could interpret the statute as calling for the last name, and ONLY the last name, to be written in.

    Patterico (c218bd)

  63. How can someone claim to know the clear intent of a voter without asking the voter that cast the ballot?

    JÐ (b98cae)

  64. Patterico, I’m not particularly good at English and grammar. If it were me, I would have written the statute as follows to be crystal clear: “A vote for a write-in candidate, other than a write-in vote for governor and lieutenant governor, shall be counted if the oval is filled in for that candidate and if the name of the candidate or the last name of the candidate, in each case exactly as it appears on the write-in declaration of candidacy, is written in the space provided.”

    I do think that, as written, the “as it appears on the write-in declaration of candidacy” only modifies the “name” of the candidate and not the “last name” of the candidate in the statute. You and Allah are correct that it doesn’t make sense but I think that’s what it says. And, if the ballots containing and mispelling her last name are the deciding ones, I think a judge will use a strict reading of the statute to decide that those ballots should be counted.

    We’ll see…

    Jimbo (87e69d)

  65. Ace of Spades has some pictures of a few contested votes.

    I can’t support Joe Miller if he’s challenging these votes. I like the guy a hell of a lot, but it is wrong to do this, even if its some legal tactic to get around to some other ballots.

    Those votes satisfy the law.

    Dustin (b54cdc)

  66. By the way, I am glad to see you did not use this time the argument you previously made, that some voters may have listened to a radio host and intentionally written in a misspelling of Murkowski’s name. Not that your logic is incorrect on the point, but such voters would be completely freaking insane to the point of making supporting them look fairly foolish as well. For here is the thought process that would have to go on in their heads:

    “Hmmm… this is a close race for Senator. I really want Joe Miller to win. What should I do? I could fill in this circle next to his name. No! I know! I’ll circle next to the write-in line and write in Lisa Merkuwsky! I’m so brilliant!”

    PatHMV (ec6571)

  67. No, Dustin. That wouldn’t count as I read the statute. A “Markowski” and so would a “Lisa Murkowski”.

    Jimbo (87e69d)

  68. such voters would be completely freaking insane

    No argument here. But that’s just not my place to say. People do stupid things.

    Dustin (b54cdc)

  69. Jimbo, I guess you’re referring to the first one, where the U could look like an A? The top of the letter doesn’t meet… it’s a U. But if they want that contested… fine.

    The other two look great to me.

    The second vote in particular… am I just losing my mind or is there no problem with it?

    Dustin (b54cdc)

  70. Patterico, re: your #61… but you said that “Murkowski, Lisa” would count, because it has the last name spelled correctly, even though “Murkowski, Lisa” is clearly NOT “as the name appears” on the list. That seems to be inconsistent with your position in #61. Could you clarify, please?

    PatHMV (ec6571)

  71. How can someone claim to know the clear intent of a voter without asking the voter that cast the ballot?

    By looking at the ballot, which is the best evidence. This is why a legislature is entitled to choose rules that ignore intentionalism as the standard, and instead use workable rules that are based on the objective marks as interpreted by a reasonable interpreter.

    To do anything else would be a fool’s errand!

    Patterico (c218bd)

  72. By the way, I am glad to see you did not use this time the argument you previously made, that some voters may have listened to a radio host and intentionally written in a misspelling of Murkowski’s name.

    Can you specify where I made that argument? I thought I noted that Miller had made that argument, and specifically reserved judgment on its persuasiveness.

    Patterico (c218bd)

  73. “Hmmm… this is a close race for Senator. I really want Joe Miller to win. What should I do? I could fill in this circle next to his name. No! I know! I’ll circle next to the write-in line and write in Lisa Merkuwsky! I’m so brilliant!”

    See, this isn’t what I said, is it?

    I said such a voter must be attempting a ‘none of the above’ option while also protesting some aspect of the Murkoswki race.

    And I think this is entirely possible, given that many Fagan listeners have major problems with Palin/Miller and also with the old guard, but are angry Fagan was kicked off the air over the spelling issue.

    I don’t know if this happened, of course. I know the voters were well informed that names should be spelled correctly, and thus think someone may have relied on that. If we make sure the voters know what the rules are, we should then follow the rules to the letter.

    If the rules stink, we can’t change them after the voters relied on them but before we count their votes. IMO.

    Dustin (b54cdc)

  74. Patterico, re: your #61… but you said that “Murkowski, Lisa” would count, because it has the last name spelled correctly, even though “Murkowski, Lisa” is clearly NOT “as the name appears” on the list. That seems to be inconsistent with your position in #61. Could you clarify, please?

    I thought I was quite clear. “Murkowski” is the last name of the candidate “as it appears” on the declaration of candidacy.

    I see no inconsistency. If you do, you’re going to have to be a little more explicit about what you think it is.

    Make sure you understand my argument, though, before you try telling me I am being inconsistent. Right now I’m not sure you do. Maybe re-reading my comments will help.

    Patterico (c218bd)

  75. Dustin, I was responding to your and Patterico’s #60 and #61. I think no part of her name can be mispelled if both her first and last name are written in. If it’s only her last name, it can be misspelled.

    I agree with you and Gabe. The first two ballots at the Ace of Spades site are valid. Miller needs to stop with the crap.

    Jimbo (87e69d)

  76. I was probably mistaken to assume PatHMV was referring to me.

    Anyhow, Miller’s campaign made the claim, as Patterico reported.

    Dustin, I was responding to your and Patterico’s #60 and #61. I think no part of her name can be mispelled if both her first and last name are written in. If it’s only her last name, it can be misspelled.

    I understand that this is actually a rational argument, but I can’t agree with that interpretation. Patterico’s interpretation seems quite straightforward. People can say it’s a harsh rule, but it’s not a silly interpretation or anything.

    I’m not pretending to understand the legal system up there enough to say you’re wrong about what the courts will say, but they should not interpret the law this way.

    Dustin (b54cdc)

  77. CNN is reporting that Miller challenged a “Murkowski, Lisa” ballot — link

    Kman (d25c82)

  78. Pat

    but such voters would be completely freaking insane to the point of making supporting them look fairly foolish as well. For here is the thought process that would have to go on in their heads:

    “Hmmm… this is a close race for Senator. I really want Joe Miller to win. What should I do? I could fill in this circle next to his name. No! I know! I’ll circle next to the write-in line and write in Lisa Merkuwsky! I’m so brilliant!”

    At first i agreed with you.

    Until i realized that it had an interesting result. it means that when a person spells it mercowski, or even murkywski, you can’t really know if they wanted to vote for her or not. it cuts the legs out from under the intention of the voter argument.

    So insane…? or just crazy like a fox?

    i mean the fact is over a hundred people registered as write in candidates just to make life more difficult, including another “Lisa M.” so clearly some of these people are in the mood f— with her. so maybe they realized that if only a few of them intentionally misspelled her name, then it would have the result of us not knowing if the other mispellings are intentional or not. as rush jokingly called it, operation chaos.

    Aaron Worthing (e7d72e)

  79. Dustin,

    The pictures are all very blurry, which I find a little suspicious. How hard is it to take a clear picture?

    That said, two of the votes look to be spelled correctly, for sure. There is one where you can’t tell, because of the blurriness. It could be “Markowski.”

    Then again, if it’s not quite clear whether it’s a “u” or an “a” I think the reasonable decision has to be to call it a “u.” I can’t see not counting the vote because the top parts of the “u” come really close together and look a little bit like an “a.”

    Miller does seem desperate here.

    Patterico (c218bd)

  80. CNN is reporting that Miller challenged a “Murkowski, Lisa” ballot

    Of course, the source for that is Murkowski’s campaign manager, so take it for what you will.

    Kman (d25c82)

  81. Miller does seem desperate.
    But it’s politics.
    I had no complaint about her using the path available to her (running as a write-in) and no complaint about him using the path available to him (contesting every last ballot).

    That’s what you do when you want to win.

    MayBee (b8f705)

  82. CNN is reporting that Miller challenged a “Murkowski, Lisa” ballot

    Yep. No commas allowed. That isn’t typography or font size, that’s substance.

    Christoph (8ec277)

  83. i mean the fact is over a hundred people registered as write in candidates just to make life more difficult, including another “Lisa M.” so clearly some of these people are in the mood f— with her.

    That’s a great example!

    Dustin (b54cdc)

  84. CNN is reporting that Miller challenged a “Murkowski, Lisa” ballot — link

    Yeah, well, Murkowski is trying to challenge any write-in votes for Miller, correct?

    I disagree with the analysis that say “Murkowski, Lisa” is not a vote — but it is not impossible to interpret the statute that way. I don’t have a problem with Miller, who is getting slammed on technicalities by the other side, relying on technicalities and taking his best shot.

    Patterico (c218bd)

  85. Plus, look at our President. Remember that contesting names like this is pretty much what put him on the path to the White House.

    MayBee (b8f705)

  86. I had no complaint about her using the path available to her (running as a write-in) and no complaint about him using the path available to him (contesting every last ballot).

    That’s what you do when you want to win.

    I have no problem with his contesting every last ballot as to which he has a colorable argument.

    Some of the pictures at Ace’s site appear to be of ballots that are clear.

    Patterico (c218bd)

  87. I think Miller should challenge non-dotted i ballots, purely for the entertainment value.

    Christoph (8ec277)

  88. Yep. No commas allowed. That isn’t typography or font size, that’s substance.

    If the last name is on there, spelled correctly, I don’t think that the ballot is spoiled by additional markings that (applying the intent of the voter standard) do not appear to undercut the message sent by the correctly spelled last name.

    If someone put “not” in front of the “Murkowski” THAT would be a spoiled ballot. But a comma, and then her first name, spelled correctly? I think that comes within the statute.

    Patterico (c218bd)

  89. At Ace’s, you could argue they say (in order)

    Lisa Markowski
    Lisa Muvkowski
    Lisa Mxrkowski

    So, he’s making the argument.

    MayBee (b8f705)

  90. let me add that if people did intentionally misspell her name just to create an issue, that was really, deeply immature and wrong.

    but i have to admire their cleverness, if that is what they did.

    Aaron Worthing (e7d72e)

  91. The pictures are all very blurry, which I find a little suspicious. How hard is it to take a clear picture?

    It’s hard for me!

    Anyhow, there’s a line you shouldn’t cross. I suspect these examples were selected for a reason rather than because they represent what’s being challenged. I also understand that challenging ballots is a two-way street. Murkowski will challenge every vote she can, too, and this is just how our system handles this problem..

    But I am happy I’m not the Miller lawyer picking these ballots, obviously votes for someone I can’t stand, and then working to take those votes away. I just don’t have the stomach for it. Perhaps this kind of fight is justified for the greater good, but this is too much for me if those are the kinds of ballots being challenged (big if).

    Dustin (b54cdc)

  92. If someone put “not” in front of the “Murkowski” THAT would be a spoiled ballot.

    Yeah.

    I once was a poll watcher observing counting of paper ballots. One person had put a drawing of a marijuana leaf in the oval for a candidate. I and the other poll watchers from different parties were pondering this with the election official to see if we thought it should count as a vote for the candidate.

    I noted that this was the Green Party candidate and we all agreed that it should count.

    Christoph (8ec277)

  93. Maybee,

    Thank you for explaining the basis for #2 being a V instead of an R.

    What a load of crap, but I was about to have a headache trying to see what the complaint was.

    Dustin (b54cdc)

  94. Patterico: Re #71, my apologies for failing to remember your disclaimer that the argument was Miller’s, and you were reserving judgment on it.

    Re: #73, please don’t get snippy with me. I’m not accusing you of anything by disagreeing with you, and I was legitimately asking for clarification of something that appeared to me to be inconsistent. You are normally not inconsistent, so when something strikes me as inconsistent, I ask about it.

    As to my perception of an inconsistency, in #50, responding to my “last name, first name” hypothetical, you said: “In that example, the last name of the candidate would have been written in the space provided, as it appears in the declaration. Sure, the first name was also written, but I don’t see the problem with that. The ballot would still comply with the language of the statute.”

    Thus, even though the full name was not written precisely “as it appears” in the list, you seem to be saying that doesn’t matter, because the last name was written, with correct spelling, in the space provided.

    But then, in #61, in response to my “Lesa Murkowski” hypothetical, you seem more cautious, requiring an inquiry into what a “reasonable” person might “conclude” about what the voter “meant.” Thus, you seem to suggest that where there is more than the last name written, one must look further, with perhaps some misspellings of the first name allowed and others not. That is what appeared to me to be somewhat inconsistent.

    PatHMV (ec6571)

  95. Aaron, re: your #77. That’s why I acknowledged that the Miller (not Patterico, pax) argument was logically correct but not one I would be willing to make to anybody whose respect I sought. The voter you describe would have to count on there not being THAT many people voting the same way (if 20,000 people wanted Miller but decided to do the screwy spelling thing, then the screwy voting would have cost Miller an outright and easy win), AND that the courts would uphold the Miller-Patterico interpretation of the statute and toss out all those ballots.

    A foolish bet, any way you look at it, to my mind.

    PatHMV (ec6571)

  96. The pictures are all very blurry, which I find a little suspicious. How hard is it to take a clear picture?

    That seems pretty lame to me. The photos aren’t perfect, but they’re clear enough to show the spelling.

    Unless those photos are an outright fraud, I can’t see how greater resolution changes the spelling.

    Christoph (8ec277)

  97. I want to note that my real issue is that I think the burden of proof, showing that the write-in is misspelled, should be on Miller and it should require something compelling.

    If we’re just talking about letters that are obviously an R but look like a V as well, or letters than are a U but look like an A, that may be something they call colorable, but it’s a load of crap. We all know these votes were spelled correctly. Joe Miller knows that’s not an X or a V.

    This is totally different from seeing, clearly, that the name Murkowski is spelled wrong. They used a Y or they skipped a letter, etc. Votes like this are not valid under the law.

    In my book, challenging a vote that was proper is the same as stuffing the ballot box.

    Dustin (b54cdc)

  98. If Miller wins by challenging ballots like those at the Ace of Spades link, he better start looking at how he can avoid attempts by Alaskan voters to remove him from office. He’s already got a bunch of them pretty mad from trying to void ballots like this, from what I can tell at the Anchorage newspaper site.

    Jimbo (87e69d)

  99. Ouch. Someone’s grumpy today.

    Christoph (8ec277)

  100. Aaron, re: your #77. That’s why I acknowledged that the Miller (not Patterico, pax) argument was logically correct but not one I would be willing to make to anybody whose respect I sought. The voter you describe would have to count on there not being THAT many people voting the same way (if 20,000 people wanted Miller but decided to do the screwy spelling thing, then the screwy voting would have cost Miller an outright and easy win), AND that the courts would uphold the Miller-Patterico interpretation of the statute and toss out all those ballots.

    A foolish bet, any way you look at it, to my mind.

    Comment by PatHMV —

    Why do you keep assuming these people must have wanted Joe Miller to win?

    Dustin (b54cdc)

  101. PatHMV:

    My position is that, at a minimum, you have to have either: a) the full name as it appears in the declaration, or b) the last name as it appears in the declaration. That is the minimum required by the statute.

    If ANYTHING in addition to one of these two examples is written, I would apply the “intent of the voter standard” to see if it undercuts what is otherwise on the ballot.

    If the additional language is “, Lisa” appended to the end of the last name, it seems crystal clear that this does not undercut the message sent by the inclusion of the last name.

    If “, Lesa” is appended, then yes, I would be a little more cautious, but would still (under the circumstances presented in this election) likely rule that a vote for Murkowski. If there were a “Lesa Murkowski” also running then the scenario would of course be quite different.

    I apologize for my impatience, but your allegation of inconsistency was not very clear. In the context of a comment that also misstated one of my previous positions, I wanted to make sure I didn’t waste time responding to arguments countering things I never said.

    Patterico (c218bd)

  102. In analyzing the politics of it all, my understanding is that Miller is taking advice from legal veterans of Florida 2000. In accounts I’ve read, they’ve said that they got off to an initially disadvantageous start by being overly concerned with how the candidate would appear by challenging various ballots. In the end, they estimated, both candidates got somewhat tarred with accusations of wanting to disenfranchise voters, and so they would have been better served by accepting that fact from the beginning and focusing entirely on the legal issues.

    The idea is that whichever candidate is elected won’t face reelection for 6 years (is this a full term election, or filling the remainder of Steven’s term election?), by which time the voters will judge him or her entirely on performance in office, and any slimy feeling left over from recount behavior will be long forgotten.

    I think that’s fundamentally sound advice, so I have no problem with Miller taking this stand (or Murkowski, for fighting hard on her end). The campaign is over, all the votes have been cast (if not interpreted), and public opinion is now immaterial.

    I’m not convinced that the Miller-Patterico interpretation will or should (as a matter of textual analysis) prevail in court, but it is entirely appropriate of him to leave it to the lawyers to play hard-ball at this point. It’s no longer a popularity contest.

    PatHMV (ec6571)

  103. Too bad Murkoosk uh Markosky … well too bad she wasn’t named Bush or Gore huh? Then there would be no problem.

    Does this mean we need a Constitutional amendment to protect persons with difficult to spell last names who want to be write in candidates?

    Lucky for Boner… uh Boheener… Bayner you know, the speaker of the house to be that he wasn’t a write in cadidate huh?

    EdWood (98b8c6)

  104. That seems pretty lame to me. The photos aren’t perfect, but they’re clear enough to show the spelling.

    Your argument seems pretty lame to me, but then, maybe I’m just tired of your supercilious attitude generally. The pictures are blurry and with the one where it might be an “a” instead of a “u” I’d like to see a clearer version. How freaking hard is it to take a clear picture?

    If we’re just talking about letters that are obviously an R but look like a V as well, or letters than are a U but look like an A, that may be something they call colorable, but it’s a load of crap. We all know these votes were spelled correctly. Joe Miller knows that’s not an X or a V.

    Tough to tell on the “a” vs. “u” picture but on the “v” vs. “r” I agree.

    This is desperation and it’s going to cost him credibility, which sucks because his underlying legal argument is valid.

    Then again, if they are seriously challenging write-in votes for him then I don’t know that I begrudge him almost any scorched-earth tactic.

    Patterico (c218bd)

  105. Does this mean we need a Constitutional amendment to protect persons with difficult to spell last names who want to be write in candidates?

    Don’t tempt them. I bet that’s an argument a lot of people would make.

    Dustin (b54cdc)

  106. And, yeah, Jimbo, you’re right. This doesn’t look good on Miller.

    Maybe a guy who would violate his co-worker’s space and steal their computers to hide his (dishonest) online political activities (equivalent to sockpuppetting!, at a minimum, Patterico, by using different IP-identities to claim his position had more support than he did … how is that different than Hiltzik?), then lie about doing it when asked by management about it (I’m sure his co-workers loved that: that would mean that they did it), and then lie about what he did when that didn’t work … is the kind of guy who will challenge even obvious, correctly spelled Lisa Murkowski votes to win election, eh? Even if the Alaskan people, his wannabe constituents, hate him for it.

    Look, if Murkowski won the election, she won the election. If she sucks, the people have a right to vote for a candidate who sucks.

    Christoph (8ec277)

  107. Then again, if they are seriously challenging write-in votes for him then I don’t know that I begrudge him almost any scorched-earth tactic.

    Comment by Patterico

    That’s smart. My heartsick attitude about this is not any way to play this kind of legal dispute.

    PatHMV is also smart to note he’d have 6 years of Senate work to overcome the sore feelings. It makes sense to play to win.

    I do begrudge him anyway.

    Dustin (b54cdc)

  108. Comment by PatHMV — 11/11/2010 @ 2:20 pm

    I think that’s the smart political argument.
    Al Franken is Senator of Minnesota via some pretty questionable tactics, but I don’t hear the Democrats who elected him talking about it much.

    MayBee (b8f705)

  109. Pat, I think it’s really dumb of Miller and his lawyers to simply apply the lessons of Florida 2000 to this situation because of the different political and public opinion implications.

    Florida 2000 involved hanging chads and stray or unclear marks on ballots. The intent of the voters in those cases wasn’t clear.

    In this case, people wrote in a name (somewhat incorrectly). The intent here is a lot more clear. And people are going to get a lot more p*ssed off if Miller wins because his lawyers claim an “a” was a “u” (or whatever). People will see how weak his arguments are.

    Jimbo (87e69d)

  110. hen again, if they are seriously challenging write-in votes for him then I don’t know that I begrudge him almost any scorched-earth tactic.

    Does the clear language of the statute allow him, a non-write-in candidate with space on the ballot, to receive write-in votes? Is he even qualified for those?

    You’re the one who says the statute has to be interpreted literally. And according to Alaskan law, it does. So I do begrudge him the tactic of challenging obviously correctly spelled ballots.

    You might have beat Gabe on the law, but those pictures are pretty damning.

    Christoph (8ec277)

  111. steal their computers to hide his (dishonest) online political activities

    Oh man! What a monster!

    Oh wait, he voted twice in an online poll?

    I just did that today, using multiple computers, for a friend’s daughter’s crappy band to win a contest.

    People do this stuff. The hysterical condemnations of it are lame.

    Ace’s commentary on some of Miller’s ACTUAL mistakes makes more sense to me. But nothing better than calling someone dishonest at the drop of a hat, right?

    Dustin (b54cdc)

  112. Oh wait, he voted twice in an online poll?

    He lied to his employer about it and then lied to his employer about it and then lied to his employer about it, again.

    Is this normal behavior for a former judge?

    And yes, Ace is right about his substantial critiques of Miller’s questionable political judgement.

    I just did that today, using multiple computers, for a friend’s daughter’s crappy band to win a contest.

    I didn’t because it’s fraud.

    Anyhoo, did Miller’s admitted lies disqualify him? Nope, but I’m sure they counted against him with enough voters to have cost him this election.

    Christoph (8ec277)

  113. I meant he lied twice. Was a typo to imply three times.

    Christoph (8ec277)

  114. Does the clear language of the statute allow him, a non-write-in candidate with space on the ballot, to receive write-in votes? Is he even qualified for those?

    It doesn’t matter, as far as my argument goes.

    My argument, which I’ll repeat and clarify since I guess you didn’t understand it the first time, is that the Alaska officials are disregarding the law to favor “voter intent” over clear statutory provisions.

    If that is the standard they are going to apply, then he has a legitimate beef if they don’t count write-in votes for him. Regardless of whether the law allows him to be a write-in candidate or not.

    They can’t be strict about one part of the law and ignore it in another area.

    Patterico (c218bd)

  115. Jimbo… if Miller plays nice and loses, then Murkowski has been elected Senator and will be a real incumbent (not just one appointed by her daddy) 6 years from now. “I played nice when she beat me last time” is not going to win him any votes if he were to challenge her again.

    If he plays hardball and wins, then he’s the incumbent and has 6 years to rehabilitate any damage to his image. And if she brings it up 6 years from now in challenging him, she’ll look like a whiney sore loser, assuming people are satisfied with his actual performance as Senator.

    The only serious political hurt this could put on Miller is if he were to lose the race and want to run for some other office in the next year or two.

    PatHMV (ec6571)

  116. Dustin,
    As I understand it he had sponsored the poll and it had to do with another state employee getting fired or something along those lines.
    Once he went to the length of erasing his browsing history on his co-worker’s computers he displayed a dishonesty and desire to cover up his activities.
    The cover up is always what gets people and those actions are fair game when it comes to character.

    VOR2 (c1f4a2)

  117. I don’t dispute your last point. I have no problem with him being strict about it and/or trying to get his write-ins counted if voter intent is the standard in the end.

    Strict is one thing; challenging correctly spelled Murkowski votes is another.

    I suppose I, a normal person, look at those ballots and go, “That’s Lisa Murkowski’s name spelled right. Why is he challenging those? He seems like an ass.”

    I’m sure tons of Alaskan voters, the plurality of whom appear to have wanted Lisa Murkowski to be their re-elected Senator, probably take that hard.

    Christoph (8ec277)

  118. “Once he went to the length of erasing his browsing history on his co-worker’s computers he displayed a dishonesty and desire to cover up his activities.”

    Quite right.

    Christoph (8ec277)

  119. I didn’t because it’s fraud.

    LOL.

    How is it fraud? They computers had different cookies. It’s perfectly acceptable by ‘the rules’. I didn’t imply they were the same computer to anyone. No fraud.

    Fraud would be more like escaping a ban by using a different computer, pretending you aren’t who you say you are. Even then it’s silly to call it OMG FRAUD!

    The ‘political activity’ was to vote in an online poll. You say he stole a computer, etc etc etc. I wouldn’t be surprised if the kinds of lies you tell do actually persuade some voters in these closer elections.

    Anyhow, be careful about that moral high ground you’re roosting on based on using a different IP being fraud, Christoph. It seems like you’re actually just admitting you’re a fraud.

    Dustin (b54cdc)

  120. #46, party identifications are not part of the name on the delcaration; they’re a separate item, and they were not included on the list the courts told the electoral officials to provide to voters.

    Milhouse (ea66e3)

  121. It would be like if Patterico started deleting posts and denied he made them. Or even more like if Patterico started making comments under socks and denied he made those when caught.

    Miller’s is the same kind of behavior as Hiltzik displayed!

    Christoph (8ec277)

  122. VOR2,

    I agree with you. The ACTUAL behavior, which wasn’t ‘stealing’ or ‘fraud’ was still embarrassing and a legit point despite the way the information was accessed.

    Dustin (b54cdc)

  123. f Miller plays nice and loses, then Murkowski has been elected Senator and will be a real incumbent (not just one appointed by her daddy) 6 years from now

    I just wanted to note that she’s already this kind of incumbent. She already won an election before this one.

    Dustin (b54cdc)

  124. How is it fraud? They computers had different cookies. It’s perfectly acceptable by ‘the rules’.

    Well, in that case, it wouldn’t be fraud, but I’d have to read the T.O.S. to know.

    They computers had different cookies.

    And it probably has little to do with cookies. You could just delete the cookie and revote, or use different browsers. You’re probably using computers because of their different IP-addresses (as Miller tried to). If not, you could cheat more efficiently by using the above method.

    You say he stole a computer, etc etc etc.

    I misspoke. The facts are well known. He stole the usage of a computer or accessed it without permission of the user or however you want to rephrase it.

    It would be like if he jumped in a co-workers company car and took off, then denied driving it (with two different lies) when asked by management. It wouldn’t be “stealing” in the legal definition of the term, permanently attempting to deprive someone of their property, but it would be called that in common parlance. “He stole my company car and took it for a drive without asking!”

    Same dif.

    Christoph (8ec277)

  125. Thanks for posting this (and for visiting AoSHQ). I thought Gabe’s reasoning was flawed, but I don’t have the legal background to dispute it. It’s terrific to see the arguments presented.

    Y-not (5c451e)

  126. It would be like if he jumped in a co-workers company car and took off,

    And that would be like if he stole the space shuttle and crashed it into the holocaust museum.

    Well… if you’re crazy.

    Dustin (b54cdc)

  127. if they are seriously challenging write-in votes for him

    it’s pretty clear from the statute that write-in votes for candidates whose names are on the ballot count.

    what’s *not* clear is whether the same rules (spelling, fill in the oval) apply in this case – i think the language could go either way.

    aphrael (e0cdc9)

  128. Oh, I forgot. My anology of Miller taking a co-worker’s company car for a spin without the user’s permission and then lying about it, twice, to management when caught would be true if O’Donnell also reset the trip counter, trying to hide evidence he made the trip.

    Christoph (8ec277)

  129. AS 15.15.360(a)(9) says

    (9) Write-in votes are not invalidated by writing in the name of a candidate whose name is printed on the ballot unless the election board determines, on the basis of other evidence, that the ballot was so marked for the purpose of identifying the ballot.

    The textual difficulty I have is in reconciling: (11) A vote for a write-in candidate, other than a write-in vote for governor and lieutenant governor, shall be counted if the oval is filled in for that candidate and if the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided.

    So a write-in vote for Miller is not a vote for a write-in candidate, meaning that the rules of subsection 11 don’t necessarily apply. So, as ridiculous as it seems, it’s possible that a vote for Millyr is legitimate but a vote for Murkowskee isn’t.

    aphrael (e0cdc9)

  130. So, as ridiculous as it seems, it’s possible that a vote for Millyr is legitimate but a vote for Murkowskee isn’t.

    Comment by aphrael

    /head explodes

    Dustin (b54cdc)

  131. Curious, What if they ddnt use proper capitalization?

    EricPWJohnson (8a4ca7)

  132. Dustin, @130, sometimes law is like that.

    aphrael (e0cdc9)

  133. Curious, What if they ddnt use proper capitalization?

    Clearly those are votes for Miller — protests against Murkowski.

    Christoph (8ec277)

  134. #92. In Australia the statute explicitly calls for the voter’s intent to rule, and so although the correct way to vote for a candidate is to put the numeral 1 in the box next to his name, any mark that unambiguously indicates the voter’s intention to support that candidate is treated as if it were a 1. However, an X is not counted, because the voter’s intent is not clear; it might mean “I support this candidate”, or it might mean “I don’t support this candidate, I want anybody but this candidate”. Therefore such ballots are invalid and not counted.

    Milhouse (ea66e3)

  135. Australia.

    Christoph (8ec277)

  136. #110. Yes, it does.

    Milhouse (ea66e3)

  137. #129, I think that’s exactly what the law says. The standard for write-in candidates is intentionally tougher.

    Milhouse (ea66e3)

  138. Remember that nothing compelled the legislature to allow write-in candidates in the first place.

    Milhouse (ea66e3)

  139. Milhouse – to the extent that that’s true (eg, that it’s a deliberate decision to make it harder for write-ins to win), I think it’s a perfect example of the political class using their access to the state to entrench themselves and create obstacles to the people retaking control of our sovereignty.

    aphrael (e0cdc9)

  140. SPQR, your nonsense doesn’t convince me either.

    JEA (c769b4)

  141. @128

    How did O’Donnell get mixed up in your analogy? You’re really grasping at straws here.

    malclave (1db6c5)

  142. Go away to do some errands and make supper, and the thread runs riot…

    No, Patterico, you haven’t changed my mind. First off, to achieve your effects, you had to completely rewrite my example.

    The statutory language again:
    and if the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided.

    That phrase in commas : as it appears on the write-in declaration of candidacy : applies only the first phrase, into the middle of which it was dumped (“the name of the candidate“). To have it apply to the second phrase (“the last name of the candidate“) violates all the rules of syntax.

    It’s like saying that in this phrase: the red fox and the cow the adjective red applies to both nouns (fox and cow).

    Aaron and you have pointed out that this can lead to an illogical result, and I agree on that: but that’s how the statute reads, and you’re stuck with it. Did the person who drafted this statute have an awkward writing style? Possibly.

    Personally, I suspect that what was in the mind of whoever wrote it was not accuracy of spelling, but rather a situation in which the write in vote used a different version of the candidate’s name. To make clear what I mean, suppose Joe Miller was a write in candidate, filing as Joe Miller. The statute would invalidate any votes cast for “Joseph Miller” or “Joey Miller”–as well as more obvious ones like “the Tea Party candidate” or “the man who beat the incumbent in the primary”–where the intent of the voter is pretty clear (ie, to vote for Miller). But it wouldn’t necessarily invalidate a write in vote for Joe Miler.

    kishnevi (127d58)

  143. JEA, I wasn’t trying to convince you. My goal is coherence, which I guess is a goal you abandoned long ago.

    SPQR (26be8b)

  144. OK, time for my stupid question: In the law cited, there is the phrase, “other than a write-in vote for governor….,”

    Doesn’t that indicate that this particular section of law does not pertain to write-in votes for Governor?

    Duke Powell (7c2930)

  145. the clause immediately following it, which i didn’t excerpt, sets different rules for governor/lt. governor.

    aphrael (e0cdc9)

  146. They can’t be strict about one part of the law and ignore it in another area.

    Sure they can, some parts of statutes are ignored or even struck down

    EricPWJohnson (8a4ca7)

  147. It’s like saying that in this phrase: the red fox and the cow the adjective red applies to both nouns (fox and cow).

    No, it’s not, at all. You are not drawing a fair parallel. In “the red fox and cow” the modifier comes in between the first article and the first noun. That makes it clear that the modifier modifies only the first noun. Not so in the statute.

    Why don’t you confront my example, which WAS a parallel? Namely: “Patterico is blunt and zealous as a blogger and a prosecutor.”

    You could read that as saying “Patterico . . . is a prosecutor” and claim that the word “prosecutor” is not modified by the two adjectives. But it would be a strained reading, because the modifier comes before two article/noun pairs. The more natural reading is that the modifier modifies both nouns.

    Please address that example.

    Patterico (c218bd)

  148. to the extent that that’s true (eg, that it’s a deliberate decision to make it harder for write-ins to win), I think it’s a perfect example of the political class using their access to the state to entrench themselves and create obstacles to the people retaking control of our sovereignty.

    Which the state legislature has the right to do under the constitution unless Sect. XVII is predominant here.

    Christoph (8ec277)

  149. I don’t need to address your example: it’s not a parallel; it’s not even a tangent. In the statute we have an adjectival phrase inserted into the middle of another phrase. The rules of grammar say that it applies only to the phrase. There is no way to parse that sentence that can result in the adjectival phrase also applying to the second phrase, unless you ignore all the rules of syntax.

    As you and Aaron pointed out, this might lead to an illogical result–which is why I suspect bad drafting. But when a court interprets a statute, it’s not allowed to hypothesize bad grammar…

    kishnevi (d14cde)

  150. Come on, kish, you know this is like the garbage we went through 10 years ago, down here, with even less justification, they want a certain result, Lisa’s reelection, and they are pulling heaven and earth to do it

    justin cord (82637e)

  151. they want a certain result, Lisa’s reelection, and they are pulling heaven and earth to do it

    Unfortunately, the voters of Alaska actually decided to elect her. That’s a big difference, regardless of the many major complaints we have about how they went before election dy.

    Dustin (b54cdc)

  152. I agree with kishnevi. “Name of the candidate” and “last name of the candidate” are two separate phrases. If one wanted to explicitly modify only “name,” this construction works well.

    However I don’t understand how acknowledging this transforms “last name” into “something similar to the last name.”

    el duderino (fedc3d)

  153. Hate to disagree with you, Pat, but grammar may not be your friend here. That said, it’s complicated:

    A vote for a write-in candidate, other than a write-in vote for governor and lieutenant governor, shall be counted if the oval is filled in for that candidate and if the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided.

    The problems with distributing the adjectival clause (“as it appears on the write-in declaration of candidacy”) to both “the candidate” and “the last name of the candidate” are, first, that you normally don’t distribute adjectives over a contrastive conjunction like “or.” Second, the presence of the definite article indicates a distinct, hence “definite,” entity. For example:

    He could wear the shirt, which is white linen, or the shorts.

    Reading that sentence, do you believe that the shorts are “white linen”? Most likely not, because the adjectival clause only clearly refers back to “the shirt.” That’s not to say a case can’t be made that it also refers to “the shorts,” but there’s one more problem: the verb in the adjectival clause is singular. The same thing’s true in the statute:

    if the name, as it appears on the write-in declaration of candidacy

    There, “it” is singular and “appears” agrees with the singular subject. That said, if I’m diagramming that sentence, the prepositional phrase “of the candidate or the last name of the candidate” would go below the line and act as a single syntactical unit, which would account for the singular subject and verb-form in the adjectival clause.

    The problem, then, is that the sentence is written so terribly that its attempt to clarify its purview only introduces ambiguity. In short, I don’t think you can have, by your standards, a reasonable interpretation of it because its ambiguity is coded on a grammatical level. Equally compelling cases could be made both for distributing the adjectival clause only to the first (“the name … of the candidate”) or to both (“the name … of the candidate” and “the last name of the candidate”) of the noun phrases governed by the preposition.

    So, it’s a shit sentence, I think we can agree. However, in the professional opinion of a person who reads hundreds of thousands of shit sentences every quarter, I would say that the intent, such as it can be gleaned, was to distribute that adjectival clause to both elements of the prepositional phrase, and thus should have been written:

    A vote for a write-in candidate, other than a write-in vote for governor and lieutenant governor, shall be counted if the oval is filled in for that candidate and if the name of the candidate or the last name of the candidate, as either appears on the write-in declaration of candidacy, is written in the space provided.

    That sentence is still shit, because “or” compels you to write “either,” but at least it clearly indicates that it refers to both.

    SEK (1d9681)

  154. Here is a picture of the challenged “Murkowski, Lisa” ballot.

    http://www.cbsnews.com/8301-503544_162-20022590-503544.html

    Angus (f7a41f)

  155. (Obviously, I have no dog in this race. I was just trying to outline the grammatical argument to show how muddy the waters are.)

    SEK (1d9681)

  156. the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided

    Maybe I’m not analyzing this enough, but it seems to me that this means the voter can write in either the name as declared, or the last name only, and have the vote count.

    “Lisa Murkowski” would be acceptable (assuming that’s how she declared her candidacy), as would “Murkowksi”. “Lisa Ann Murkowski” technically would not. Although the last name is present, it seems to me that the first criteria indicates that the last name must stand alone, otherwise there’s no need for the first part, since the name on the write-in declaration of candidacy would necessarily include the last name.

    Of course, I’m not looking at this as either a lawyer or a grammar teacher, but as a layman. And I’m also of the mind that voter intent should matter if it can be clearly determined.

    malclave (1db6c5)

  157. If Miller wins the election this way (which he won’t), it will hurt the GOP in 2012 by motivating opposition turnout far and away more than any benefit to be gained by having one more GOP senate candidate elected, a candidate with some shady ideas of honesty.

    Let the other GOP candidate win the election since she clearly outclassed Miller in the minds of Alaska voters. Only the second Senator ever to be elected as a write-in! That says something.

    For better or worse, she’s the one Alaskans want.

    Christoph (8ec277)

  158. Wake up man, the last Senator, was elected due to a conviction, against the Senior Senator, with manufactured evidence, they have been throwing the rule book away in such a way that it sparked the 150 writeins, that Fagan later took credit for

    justin cord (82637e)

  159. There is nothing classy about what Mirkouskee did. No matter how many times you make taking a survey on another computer terminal into a capital offense.

    Nobody ever answered. How many letters are people allowed to screw up? Purkowski? Mirkowski? Nurkowsky? Are vowels bad, but consonants okay?

    JÐ (822109)

  160. “Nobody ever answered. How many letters are people allowed to screw up? Purkowski? Mirkowski? Nurkowsky? Are vowels bad, but consonants okay?”

    If you’re calling it a screw up, that means that you think the person wanted to vote for murkowski. Otherwise it wouldn’t be a screw up.

    imdw (8bb588)

  161. that means that you think the person wanted to vote for murkowski.

    No, not necessarily. It only means the ballot is spoiled. What the voter intended to do is known only to the voter.

    It is the responsibility of the voter to make sure his vote is clear. The State of Alaska has explicitly defined what constitutes a clear vote.

    Some chump (e84e27)

  162. Some chump – A freaking men.

    JD (c8c1d2)

  163. The link to the actual list of write in names is pretty informative to me…there are many candidates with the same last name. THere are (4) Johnsons so any vote for “Johnson” would have to be rejected. There is a Miles and a Mills so any vote for “Mils” would have to be rejected as well. I believe the Legislature intended the spelling of the write in name to match their paperwork exactly otherwise they can’t determine the voter intent.

    Suppose I have a favorite uncle whose name is Mark Owski and I cast my vote for him…my vote should be rejected because Mark Owski wasn’t on the approved list.

    The law says the spelling must be 100% matching and ballots will be accepted with either full nme or just last name.

    GoDad (6ed79d)

  164. He could wear the shirt, which is white linen, or the shorts.

    Nice to see you, SEK. I think this is a poor example as it has a comma right where you want the break. Plus the “which is white linen” makes it crystal clear that the modifier modifies only the shirt.

    I am also confused by your argument that my interpretation is not reasonable … yet it is the interpretation you believe is intended. Huh?

    Patterico (eaddea)

  165. kishnevi, suppose you read the following in a recipe:

    Add one can, undrained, of french cut green beans or a can of italian cut green beans…

    Would you drain the italian cut green beans?

    vsatt (d5a3cd)

  166. “I was just trying to outline the grammatical argument to show how muddy the waters are.”

    SEK – Appreciate the comment. Myself, I think the waters are murky rather than muddy. YMMV.

    daleyrocks (9896ff)

  167. I do think I am seeing what kishnevi means. The problem is the repetition of the word “name.”. Technically, to read it my way, you have to read the phrase as “the name … of the last name of the candidate.” Which admittedly makes little sense.

    But I also read the modifying phrase as modifying both phrases, and I can see how a legislature could do the same. Also, the “absurd results” argument is not something to shrug off as kishnevi has; it is a legitimate interpretive tool commonly used by courts.

    I think SEK is right that it’s a shit sentence. But he’s also right that the best interpretation is the one I offer in the post.

    Patterico (eaddea)

  168. If you’re calling it a screw up, that means that you think the person wanted to vote for murkowski. Otherwise it wouldn’t be a screw up.

    Perhaps — and yet the ballot should still not count. Because the law is the law, and wisely chose a workable standard over an “intentionalist” standard.

    Patterico (eaddea)

  169. If the sentence is as shit as you think it is and SEK is right that your interpretion requires a gramatically tortured reading as you outlined it, and vsatt’s anology about the italian cut green bans being ambiguous … if reasonable people, including you, are learning new things about this one sentence after spending so much time coming up with a theory about it and debating it for a day … maybe it’s too botched to interpret correctly? And deference to the will of the voter should be considered?

    Just a thought.

    I admit the sentence perplexes me.

    Christoph (8ec277)

  170. If the sentence is as crap as you think it is and SEK is right that your interpretion requires a gramatically tortured reading as you outlined it, and vsatt’s anology about the italian cut green bans being ambiguous … if reasonable people, including you, are learning new things about this one sentence after spending so much time coming up with a theory about it and debating it for a day … maybe it’s too botched to interpret correctly? And deference to the will of the voter should be considered?

    Just a thought.

    I admit the sentence perplexes me.

    Christoph (8ec277)

  171. SEK: did you happen to read a certain wall of verbiage recently that accused me of misunderstanding intentionalism? If so, did you notice how the author explicitly endorsed my hypothesis that statutes governing ballot counting should favor conventional understandings of a ballot’s meaning over undisclosed subjective understandings?

    Amid the thousands of words of blather about how I was getting it wrong, I wondered if you noticed the concession buried in there that, actually, I am exactly right.

    Patterico (eaddea)

  172. Legal interpretation does not allow us to just throw up our hands. We have to arrive at a resut, and I still believe the result I suggested is the right one.

    Patterico (eaddea)

  173. “statutes governing ballot counting should favor conventional understandings of a ballot’s meaning over undisclosed subjective understandings”

    That’s obviously true. To those arguing that point, it’s so outside the realm of reasonable thought that I’d be tempted to discount it out of hand rather than take it seriously. The objective markings on the paper are the only data to go on including when discerning “intent”.

    Of course, you use the word “conventional understandings” … and while I make no comment here on the Alaskan statute in particular, I will underline the fact that the conventional understanding is a near misspeling of a word = the word itself for all intents and purposes unless it introduces real-world ambiguity.

    Christoph (8ec277)

  174. “If so, did you notice how the author explicitly endorsed my hypothesis that statutes governing ballot counting should favor conventional understandings of a ballot’s meaning over undisclosed subjective understandings?”

    So that’s kind of what I said about the ‘screw up’ line — if conventional understanding can decide it was a screw up….

    imdw (53b665)

  175. If near misspellings that don’t introduce ambiguity didn’t count as a rule, there’d bee problems with the Constitution like Article I Section 10 in this article.

    Christoph (8ec277)

  176. Where would you draw the line on misspellings?

    JD (c8c1d2)

  177. Not sure who you’re asking, JD, but I would draw it where the law does.

    Patterico (eaddea)

  178. Where would you draw the line on misspellings?

    I mean, it’s tough, right, it is subjective. Now to be spurious, for for a second, I wouldn’t draw the line at ballots like those Gabe posted earlier that do appear to be spelled correctly. I know people who make there Rs like that routinely, and while it’s sloppy, you should see my handwriting if you want sloppy.

    Now to be serious, if its obvious the vote was not for another candidate on the write-in list and was closer to Murkowski. Maybe guidelines/regs like up to 2 characters or the like.

    But ultimately a person — a judge if the campaigns poll watchers and lawyers can’t agree — will make a decision. And that’ll be a bit subjective.

    But just like you don’t have any difficulty in understand what when people refer to Cristoph here, they’re not referring to you, Patterico, or Aaron Worthing, a judge should be able to make that determination. And for the most part, the poll watchers should be able to be mature enough to make the decision on their own.

    That’s not a perfect answer, but I still think it arrives at a more accurate account than automatically disqualifying all slight misspellings despite no other eligible write-in candidates being close.

    Christoph (8ec277)

  179. “Not sure who you’re asking, JD, but I would draw it where the law does.”

    Do you think the toughness of interpreting this sentence, including yourself where you’re only now seeing what SEK is referring to, gives people sufficient confidence that your interpretation is the correct one?

    I suppose it does lead to less bizarre outcomes, so it could be reasonable on that basis alone, although the grammar may not fully support these less bizarre outcomes.

    It’s interesting to talk about, but it’s probably moot as Ace says. Murkowski is probably enough ahead that even with these highly dubious Miller campaign challenges, he loses.

    Christoph (8ec277)

  180. You’re spurious all the time!

    I don’t think the sentence is difficult to interpret. It’s just that a lot of people think it’s harsh and are struggling with that.

    No exceptions to the fact you have to actually write in the name, either actual or on the declaration. When people run through the various implications of what can be misspelled or included, it’s clear that you do have to spell Murkowski’s name or your vote is spoiled.

    The difficulty has very little to do with interpreting the law, and a lot to do with dedication to administering the law accurately because it seems unfair to a lot of people.

    I still think it arrives at a more accurate account than automatically disqualifying all slight misspellings despite no other eligible write-in candidates being close.

    “No exceptions”

    That’s the law. You’re not having trouble interpreting it… you just think your norms should overrule the law. That’s unfair because these laws were actually well understood by the voters. The entire state was blanketed with instructions to spell the name right.

    Dustin (b54cdc)

  181. “Where would you draw the line on misspellings?”

    Sometimes, when someone misspells a word, you can tell what the correct spelling is.

    imdw (ce700c)

  182. I don’t think the sentence is difficult to interpret. It’s just that a lot of people think it’s harsh and are struggling with that.

    167 comments into this thread with a goodly number of them by Patterico himself, after studying this issue and the Alaska statutes to make the post in the first place, he says:

    I do think I am seeing what kishnevi means. The problem is the repetition of the word “name.”. Technically, to read it my way, you have to read the phrase as “the name … of the last name of the candidate.” Which admittedly makes little sense.

    But I also read the modifying phrase as modifying both phrases, and I can see how a legislature could do the same. Also, the “absurd results” argument is not something to shrug off as kishnevi has; it is a legitimate interpretive tool commonly used by courts.

    I think SEK is right that it’s a sh!t sentence. But he’s also right that the best interpretation is the one I offer in the post.

    That, among other things, does not fill me with confidence that the sentence isn’t difficult to interpret.

    Christoph (8ec277)

  183. Can we disenfrachise poor spellers, the less educated? Those who are ESL? Where does this fall is the VRA?

    EricPWJohnson (2a58f7)

  184. ‘cuse me fall in the VRA

    EricPWJohnson (2a58f7)

  185. So many of us have made so many typos on this blog (some more than others for reasons of being a bad speller, less education, ESL as Eric PWJohnson points out, even dyslexia). Add to that bad handwriting.

    Just sayin’.

    Christoph (8ec277)

  186. I think comment 182 bolsters my point.

    A lot of the many comments in this thread are not confused that the law says the name Murkowski has to appear in order for the vote to be for Murkowski, and that ‘no exceptions’ means the ‘just sayin’ arguments are not according to the law.

    This simply isn’t hard to obtain from the sentence. It’s not like Murkowski was surprised by it, after all, since most of her campaign in the general focused on spelling.

    As to whether it’s unfair to people who can’t vote properly, I think you need to take that up with the legislature. The law seems to be unfair to those people and there is no constitutional problem with that, IMO.

    Dustin (b54cdc)

  187. In other words, there’s a lot of arguing about what ifs, and a lot of arguing about fairness. It’s also harsh to write-ins, obviously by design.

    Of course it’s poorly written and that leads to a lot of absurd issues.

    but it’s not making any secret that the name has to show up, no exceptions for almost-names.

    Dustin (b54cdc)

  188. And I’d bet heavily that the courts accept Merkowski as a valid vote despite what the law says.

    Dustin (b54cdc)

  189. 182 doesn’t bolster your argument, it counts against it.

    The fact that many people prefer a “voter intent” standard doesn’t change the difficulties that intelligent, informed people, like even Patterico, are having in parsing it, and at this late moment have to make concessions such as, “Technically, to read it my way, you have to read the phrase as ‘the name … of the last name of the candidate.’ Which admittedly makes little sense,” and the others I mentioned in 182.

    It doesn’t prove that Patterico is wrong, but it seriously goes against your contention that the sentence isn’t difficult to interpret.

    Christoph (8ec277)

  190. So now it seems that we have agreement that there are at least 2, maybe 3 possible textual interpretations of the “shit sentence” in the statute. At that point, it seems to me legitimate to consider, in deciding which of several legitimate textual interpretations to adopt, which interpretation will result in the fewest ballots being cast out, where we can generally agree that the voter has shown a clear intention to vote a particular way.

    Under the Miller-Patterico interpretation not only do we toss out loss of ballots where there’s a very clear expression of a voter’s intent (say, writing “Murkowsky” rather than “Murkowski”), but we ALSO encourage, with that interpretation, squabbling over whether a particular mark by the voter is an “e” (which would be a mispelling and thus void the ballot) or an “o” (which would be correct and count the ballot).

    I agree completely with Patterico that if the statute clearly and expressly required the exact spelling of the name, then the statute would be valid and ought to be enforced. But I disagree that the text of the statute actually requires that spelling. I’ve offered my own alternate interpretation (the “as it appears” language means you can’t count votes for “the anti-tea party candidate” as a vote for the candidate who ran on that platform, and “no exceptions” means both no exceptions to that rule and also no finding an excuse to count a write-in vote where the write-in circle is not marked). Kishnevi has also offered an alternative grammatical interpretation which would not require the reading which Miller seeks.

    It is unfortunate that the Alaskan legislature (in common with many others) either lacks the ability to write clear, unambiguous statutes on such an important matter, or lacks the will to confront these issues directly themselves. But this discussion has convinced me that the Alaskan courts will not adopt the Miller interpretation of this statute, as it is by no means compelled by the only reasonable interpretation by the statute (because there are more than one such reasonable interpretations), and doing so would functionally disenfranchise a number of voters for the sole crime of being poor spellers or having poor penmanship.

    PatHMV (c34b06)

  191. I am also confused by your argument that my interpretation is not reasonable … yet it is the interpretation you believe is intended. Huh?

    I don’t think you’re wrong, but I can’t help you prove your case because the sentence is so poorly written that, whatever my beliefs about its intention, I can’t honestly make a case that excludes other reasonable interpretations. That’s what I meant there.

    SEK (1d9681)

  192. Christoph:

    SEK is right that your interpretion requires a gramatically tortured reading as you outlined it

    To be clear, what I meant is that the sentence is so poorly written that any reading of it is, of necessity, tortured. I think Patterico’s reading is the most likely meaning, but only because I’ve seen thousands of similarly misdistributed adjectival clauses in the ten years I’ve been teaching. Whether that’s worthy of standing in a court of law, well, I leave that to our host.

    SEK (1d9681)

  193. “To be clear, what I meant is that the sentence is so poorly written that any reading of it is, of necessity, tortured.”

    Yes, that’s my understanding of what you meant.

    Christoph (8ec277)

  194. “Can we disenfrachise poor spellers, the less educated? Those who are ESL? Where does this fall is the VRA?”

    It does mention literacy tests.

    imdw (8bb588)

  195. Could one use voter intent to even determine whether there was a misspelling? Say for example, you look at a ballot, and you have some doubt whether the person wrote “Murkowski” or “Muvkowski” because their handwritten “r” and “v” are similar. In deciding between whether it is an “r” or a “v,” could you use the fact that it appears this person intended to vote for Murkowski?

    imdw (ae4d0b)

  196. Regarding post #3… I disagree. The portion of the sentence set off by commas, for clarity of the rest of the sentence, could be removed from the sentence and when it is removed, then it is clear that either the full name, or just the last name, are adequate to count as a vote. The author of that stipulation should have left out the first comma if it was intended that the voter could write either the candidate “as it appears…” or he could write just the last name. As written, unfortunately, because of unclear use of grammar, we don’t know exactly what the author meant.

    Further, in your example “Patterico is a blunt, but zealous, blogger and a prosecutor,” one could NOT interpret that to mean that Patterico is a blunt but zealous blogger AND a blunt but zealous prosecutor, because of the article “a” just before “prosecutor.” That article makes prosecutor a completely separate adjective for Patterico not modified by the words blunt and zealous.

    Hope this helps.

    Ilex (71035a)

  197. P.S. … my error, “are adequate” should be “is adequate”

    Ilex (71035a)

  198. Maybe this has been addressed already, but I was surprised to see that the text says “if” not “only if”. In effect, then, it says a vote will be counted if X. There has been much debate about how to construe X, but isn’t that beside the point?

    P if Q,

    is the same as,

    If Q, then P,

    which does *not* entail If not-Q, then not-P.

    The statute seems to tell us that a vote must be counted under a certain condition, but it does not tell us when a vote must *not* be counted.

    Am I missing something?

    Jon (78e3b2)

  199. There has been a lot of discussion here of AS 15.15.360, which contains Alaska’s rules for counting ballots, in particular, subparagraph a.(11) and (b), both of which Patterico quotes at the beginning of this post.

    I have two questions. First, what is the effect of subparagraph a.(5):

    (5) The mark specified in (1) of this subsection shall be counted only if it is substantially inside the oval provided, or touching the oval so as to indicate clearly that the voter intended the particular oval to be designated.

    Isn’t this statute saying there that the election board must make a judgment call on the voter’s intent as to filling in the oval. If that’s so, then isn’t it inconsistent to say that with regard to write in ballots that the election board must make a determination of the voter’s intent as to oval, but not as to the actual name written in next to the oval, “Murcowski” instead of “Murkowski,” for instance?

    Second, doesn’t all the argument over what the statute means in the comments support the idea that ultimately if the case goes forward that it’s meaning will need to be construed by the courts?

    If that’s so, the Alaskan Supreme Court has been pretty clear about voter intent. Most recently, on October 29th, in State v. Alaska Democratic Party, Supreme Court No. S-14054, it said:

    The decision we reach today is informed by our previous cases regarding the importance of facilitating voter intent. “[W]e have consistently emphasized the importance of voter intent” because the “opportunity to freely cast [one’s] ballot” is fundamental.4

    The court also quoted its earlier cases with approval:

    Edgmon v. State, Div. of Elections, 152 P.3d 1154, 1157 (Alaska 2007); see also Sonneman v. State, 969 P.2d 632, 636-37 (Alaska 1998) (“[T]he right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil rights, any alleged infringement of the right of the citizens to vote must be carefully and meticulously scrutinized.”);

    Carr v. Thomas, 586 P.2d 622,626 (Alaska 1978) (“In the absence of fraud, election statutes will be liberally construed to guarantee to the elector an opportunity to freely cast his ballot, to prevent his disenfranchisement, and to uphold the will of the electorate.”).

    PDubius (330ad5)

  200. Great debate on all sides here. Don’t be surprised if a lot of these arguments make into the brieifing papers for Murkowski.

    wt (554c07)

  201. I don’t have any objection to this post, but your 2003 one was wrong. Article I, Section 2 and the 17th Amendment establish the right to vote, respectively, for representatives and senators.

    James Taranto (2927de)

  202. James Taranto said:

    I don’t have any objection to this post, but your 2003 one was wrong. Article I, Section 2 and the 17th Amendment establish the right to vote, respectively, for representatives and senators.

    Comment by James Taranto — 11/13/2010 @ 9:01 pm

    James,

    Thanks for visiting. Love your stuff. This minor disagreement does not undercut my admiration for your column.

    That said . . . I don’t agree.

    Let’s take the easier examples. In 2003, you claimed that there was a right to vote found in the 15th, 19th, 23rd, 24th and 26th amendments. I claimed, instead, that those amendments lay out ways that the Government is prohibited from depriving citizens of the vote based on certain criteria. You’re not currently arguing with me about those provisions, so let’s move on to your current argument.

    Instead, you’re saying that the 17th Amendment, and Article I, section 2 lay out an affirmative “right to vote.”

    Again, I don’t think they do. I think they set out the method by which Senators and Representatives shall be elected. But I don’t think they set out a “right to vote.”

    Let’s assume, for example, that we repeal the 19th Amendment. (And, to accomodate the advocates of a broad 14th Amendment, let’s also assume that we repeal that Amendment as well.) Would women still have a “right to vote” for Senators? For Representatives?

    I don’t think so.

    I think that Senators and Representatives would still be chosen by a vote of the people — but that would refer to men.

    See what I mean?

    In other words, there is a difference between setting up a mechanism by which certain elected representatives are chosen, and declaring that the establishment of that mechanism is equivalent to the establishment of a “right to vote” on behalf of a specified group.

    I hope that makes sense.

    Again, however, this is a minor issue. I remain a fan either way.

    Patterico (c218bd)


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