[Guest post by Aaron Worthing; send your tips here.]
Now, I always say that when you are reading about legal issues in the news, you should take it all with a grain of salt. Very often reporters understand so little about the law, they have no idea what is really going on. I don’t mean there is an ideological bent, necessarily, but they literally lack the expertise to talk about it. It would be like a Teetotaler opining about the benefits of Alcohol mixed with Caffeine. Crazy, I know…
But according to the Anchorage Daily News, Joe Miller is being granted a very unusual injunction. Here, let me let them explain:
An Alaska federal judge ruled Friday that Republican Senate candidate Joe Miller’s challenge to the counting of write-in ballots raises “serious” legal issues but is a matter for a state, not federal, court to decide.
Yet in deferring to an Alaska state court for a final decision, U.S. District Judge Ralph Beistline said he would grant a temporary injunction to halt official certification of the Nov. 2 election — an action Miller is seeking — so long as Miller takes his case to the state court by Monday.
Beistline’s unusual action was intended to “ensure that these serious state law issues are resolved prior to certification of the election,” the ruling said.
As they say read the whole thing. I will wait until I can see the actual ruling before commenting, but stay tuned.
And in the meantime, Katrina Trinko makes a compelling case that the results in the election are questionable.
The short version is that the federal judge has decided to put the federal element of the case on hold. He has required the Miller campaign to file in state court, and seek relief there, starting Monday. The federal judge felt uncomfortable interpreting state law on the issue of perfect spelling that Patterico has discussed several times (here and here), so he figured this was the best way to let the state courts have the first crack at the interpretation of state law. Since the federal case is merely stayed, if there is a serious federal question raised by the results of those state court decisions, then the federal judge can step right back in.
It’s interesting, because it is literally the mirror opposite of what happened in the Oklahoma anti-Sharia amendment case I wrote about last week. There, the district court took it upon itself to expansively interpret the Oklahoma amendment in a manner that I didn’t believe to be warranted by its plain text, and then having interpreted it so broadly, then proceeded to declare that this interpretation was unconstitutional. As I wrote there:
another problem… is that this federal court is seeking to interpret a proposed provision of the state constitution. Shouldn’t the courts just let the state courts figure out what the amendment means, first, and then let people challenge whether that amendment, as interpreted, is unconstitutional? In other words, the plaintiff belongs in state court, not federal court.
So this decision in the Miller case strikes me as the right approach. The state courts are experts in their state legal cultures, and thus more likely to be interpret state laws (or constitutions) correctly. And yet it still reserves both parties’ ability to preserve their rights under federal law, by a federal court, all while putting the state courts on notice that the federal court is keeping an eye on things.
As for the ultimate issue, there are some who have argued that this language in Alaska’s statutes…
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.
…does imply that the full name has to be spelled correctly but, the argument goes, it also implies that you can write the last name with imperfect spelling and so long as voter intent is clear, it would still count. There is some grammatical support because the structure of the sentence does suggest that the phrase “as it appears on the write-in declaration of candidacy” only modifies the term “name” but not “last name.”
But honestly I don’t think that is a correct interpretation. I mean by that approach, if a person writes “Murkowsky” that becomes a vote for Murkowski. But if they write “Lisa Murkowsky” suddenly it doesn’t count? That is an absurd rule, and one very important principle in statutory interpretation is that the courts will generally try to avoid absurd results. I mean they won’t take that principle too far—if a statute is clearly written in an absurd fashion, the court will let it apply absurdly (presuming there is no constitutional problem). But I believe here, this canon of interpretation would work in Miller’s favor.
Anyway, an interesting development on a Friday night, and we will surely keep track of this as it develops.
Update (II): Misidentified the newspaper. Thanks AD.
[Posted and authored by Aaron Worthing.]