Patterico's Pontifications

11/22/2010

Breaking: Miller Files in State Court

Filed under: General — Aaron Worthing @ 7:00 pm



[Guest post by Aaron Worthing; if you have tips, please send them here.]

Truthfully, there isn’t much right now to the story that wasn’t telegraphed a few days ago when I commented on the story of the Federal ruling on Friday.  If I have any proper sense of the time difference, it seems he waited until pretty late (it was probably a very busy weekend for their legal team), but still filed it on time to comply with the federal judge’s wishes.

A few highlights from the Forbes article:

State law stipulates that write-in ballots must have the provided oval filled in and the candidate’s last name or name written as it appears on their declaration of candidacy.

“Defendants nevertheless have decided to ignore the statute and create ‘exceptions’ to count ballots that do not satisfy these clear requirements,” the 21-page lawsuit filed in Fairbanks states. “By so doing the defendants have violated the mandatory legislative requirements and fundamentally altered the election.”

The state, however, cites case law in counting Murkowski ballots containing misspellings or those phonetic to her name. Lt. Gov. Craig Campbell, who oversees elections, defends the procedure and says the state doesn’t want to disenfranchise any voters….

Miller, who has said the law should be strictly followed, also alleged among other things that the U.S. Constitution’s Elections Clause and equal protection were violated.

The complaint maintained that write-in candidates like Murkowski have a substantial advantage because of the state’s practice of hand-reviewing write-in ballots to determine voter intent. Ballots for other candidates went through automatic machines….

Meanwhile, Miller’s campaign has been going through voter rolls to try to match the number of people signed up to vote with votes cast in certain precincts to ensure there was no voter fraud or other irregularities. The campaign has provided affidavits, generally from supporters, that have cited irregularities like an unsecured ballot box, ballots sorted by candidate and signatures that appear similar – the last of which could be due to voters receiving requested, allowable aid in filling out ballots.

Anyway, the complaint is here.  No analysis yet, because I haven’t read it myself.

Update: I read the complaint, and here are a few thoughts.  For the most part this is a very bare bones complaint.  But a few interesting points:

  1. He explicitly relies on Bush v. Gore for the idea that all voted must be judged objectively and by a single standard.
  2. He alleges that election officials have defacto issued regulations in violation of the Alaska version of the Administrative Procedures Act.

Otherwise, there doesn’t seem to be a lot that is surprising.

One other thought I had was this.  As I understand it, Alaska is unique in the United States in that it has a “loser pays” principle in its courts.  Most American courts let each side bear its legal costs, but Alaska appears to be the only state that forces the loser to pay court costs and attorneys fees, much as they do in England.  Whether Alaska is an unlitigious paradise is too big a topic for me to tackle here, but Point of Law discusses it.

[Posted and authored by Aaron Worthing.]

35 Responses to “Breaking: Miller Files in State Court”

  1. Challenging Murkowski’s name as misspelled is not a meritorious position.

    The law in Alaska is (1) the name must be written in “as it appears” on their declaration; (2) voter intent is the standard; and (3) the oval must be filled in.

    An empty oval, even with a written-in name, is ambiguous in that it could evidence that the voter changed their mind about casting a write-in vote, and decided to vote for no one. So I think any votes cast with an empty oval should be thrown out.

    But regarding the name, as long as there appears to be voter intent to spell her name as it appeared on the declaration, that should be sufficient.

    There is no literal command in AK law saying that it must be spelled correctly. Only that it must be written “as it appears.” It probably appeared in typewritten form, yet it’s obviously acceptable to handwrite the name in print or in cursive. It would be acceptable to write the name in all capital letters.

    If someone wrote “Princess Lisa” we would all know who they intended to vote for, but that vote should not count, because it does not evidence an intent to write in “Lisa Murkowski.”

    Likewise “Lisa M.” should not count because it does not evidence an intent to write in the full name as it appears.

    But “Lisa Murowski,” for example, is close enough that voter intent can be inferred without it being a stretch. Of course a vote like that should count.

    Votes for “Lisa Murkowski” written in cursive, in which one of the letters is ambiguous and could be some other letter, obviously count. Challenging those is a farce.

    If Miller can show evidence of voter fraud, for example by contractors who stand to benefit from Murkowski being elected, that aspect of his lawsuit might have merit.

    Daryl Herbert (dcad46)

  2. Is “Murowski” the name “as it appears” on the declaration of candidacy?

    Patterico (40eb37)

  3. I think he still should lose the injunction request if properly spelled Murkowski ballots outnumber his ballots.

    Patterico (40eb37)

  4. How many mistakes would you allow the voter, Daryl? 1? 3?

    JD (eb5afc)

  5. Daryl,

    What do the words “as it appears” add, in your view?

    Why are they there? What function do they perform?

    Patterico (40eb37)

  6. Miller = desperate teabagger in denial.

    One thing this election has shown is how shity a polster Rasmussen is. Rasmussen predicted Angle would take Nevada by 3 points. She lost. Rasmussen predicted Buck would win CO by 4 points, He lost. Rasmussen had teabagger Miller in Alaska leading in their final poll, he lost.

    Sorry guys, your beloved Rasmussen sucks.

    ajb (9df40f)

  7. Ira

    You seem to be in the intentionalist camp. Okay, but two questions.

    1) what law can you support for your position?

    2) does it change your analysis to learn that some people said they planned to intentionally mispell murky’s name, in an effort to mock her attempts to teach alaskans how to spell her name.

    Certainly if a person writes “Lisa Mercowski” its hard to know if they are spelling it that way by mistake, or to suggest she is a mercenary.

    Aaron Worthing (b8e056)

  8. Aaron,
         I haven’t seen any of us cite an Alaskan case about this matter. Perhaps I missed it.
         As you saw in the other thread, I am willing to hold the Alaska voters to the same standard as you and Pat are willing to hold the Alaska legislature.
         A voter who INTENTIONALLY misspells a candidate’s name is knowingly taking a chance that his or her JOKE will be misconstrued. The REAL way to lodge a protest vote against Murkowski would clearly be to vote for Miller. In your example, I would count that vote for Murkowski. If that voter wants to mock Murkowski without voting for Miller, that protestor should recognize that a reasonable audience might not get the joke unless the voter went so far as to write “Lisa Mercenarycowski.” Like I said, the protestor makes a joke at his or her own risk.
         Meanwhile, I recognize that ordinary folks acting in good faith make spelling errors, just as we all seem to be willing to allow the Alaska legislature to err grammatically and to misname the document that write-in candidates actually file.
         I don’t know that I would be in the “intentionalist camp.” I believe that a statute should be construed the way a reasonable audience at the time the statute was passed would understand the statute. As I explained in the other thread, I do not believe that a reasonable audience would have understood “as it appears” to mean “spelled exactly the same as.”
         

         

    Ira (28a423)

  9. Ira

    > A voter who INTENTIONALLY misspells a candidate’s name is knowingly taking a chance that his or her JOKE will be misconstrued.

    Ah, so voter intent should control… except when it doesn’t? I mean doesn’t that mean that the only people you can be certain voted for her are the ones who spelled her name correctly?

    > If that voter wants to mock Murkowski without voting for Miller, that protestor should recognize that a reasonable audience might not get the joke unless the voter went so far as to write “Lisa Mercenarycowski.” Like I said, the protestor makes a joke at his or her own risk.

    How about this instead? You fail to learn how to spell her name at your own risk.

    > Meanwhile, I recognize that ordinary folks acting in good faith make spelling error

    I am actually dyslexic and I have no trouble spelling her name correctly.

    > I don’t know that I would be in the “intentionalist camp.” I believe that a statute should be construed the way a reasonable audience at the time the statute was passed would understand the statute.

    Then what is the reasonable interpretation of the phrase “as it appears”? When is a name not written “as it appears?”

    Aaron Worthing (b8e056)

  10. I had hoped that Miller would win this race…but obviously he did not. I think that continuing to fight this is more about him than it is about the law or the people of the Alaska..that is not a good thing. Sometimes the best thing we can do is accept defeat and come back and fight another day. He is a young man, this does not need to be the end of the road for him.

    Terrye (007c3b)

  11. Fine Terrye, let Murkowski and the whole COB’swin,
    as with Sen. Franken, who won with ACORN’s man Guthrie and for good measure, Gore should have won,
    they were confused by the ballot after all

    narciso (82637e)

  12. Terrye, I am still hoping for a Miller win. I believe the discussion about the interpretation of the Alaska statute is an academic one, which will of course be less interesting of Murkowski wins by a margin bigger than the number of challenged votes, or if an audit or recount shows Miller the winner regardless of the challenges.

    Aaron, I think a fuller discussion of the interpretation of the statute is here: https://patterico.com/2010/11/19/breaking-federal-judge-grants-injunction-to-miller-campaign/comment-page-3/#comment-724205.

    Note that comments 18, 20 and 23 show that you and Patterico do not agree on what he means by “exact same spelling.”

    As I indicated in that thread, judges would have to make the determination, and, ultimately, if the results are sufficiently tight, a single judge or a single panel of judges would have to rule on remaining contested ballots.

    We are dealing with the Alaska statute as it is written, not as we think it SHOULD have been written. As noted in the other thread, the statute is poorly written for at least two reasons.

    A standard for “as it appears” may, for this election where we do not have too many sound alike letters (we have K which could be represented by a C and a first vowel that could easily be a U, E or I, and a last letter that could be an I or a Y) could be set at “sounds like.” Or, perhaps better, to post examples on either side of a Murkowski vote/not a vote line. But I see no reason to construe “as it appears on” as being “exactly as it is spelled on.” I also would not demand the same capitalization, in case Murkowski set forth her name in all upper case while a voter only capitalized the first letters, or vice versa.

    Ira (28a423)

  13. If you meant to vote for Murkowski, you meant to vote for Murkowsi – simple as that.

    All hail Murkowsi. Murkowsi is the Future.

    Murkowsi (20cc2a)

  14. Ira

    > But I see no reason to construe “as it appears on” as being “exactly as it is spelled on.”

    Then in what way does it have to be written “as it appears”? In what sense?

    If you are going to say the phrase does not mean X, then you need to supply an alternate explanation. what is your alternate explanation.

    Aaron Worthing (e7d72e)

  15. It’s not charades or is it?

    narciso (82637e)

  16. In what language are “as it appears” and “”reasonably similar” the same?

    Ira does not want to really look at the intent of the voter, he wants others to substitute their interpretation of someone’s intent. Trying to divine the intent without asking the person whose intent is in question is foolish.

    JD (109425)

  17. “If you are going to say the phrase does not mean X, then you need to supply an alternate explanation. what is your alternate explanation.”

    The answer to that question is in the other thread:
    https://patterico.com/2010/11/19/breaking-federal-judge-grants-injunction-to-miller-campaign/comment-page-3/#comment-724205

    Ira (28a423)

  18. ira

    so according to you “as it is written” means “well, kind of similar to how it was written as long as we know what you mean?” that is not the most natural interpretation of the term.

    Aaron Worthing (e7d72e)

  19. Aaron,
         In this comment, all bolding is by me.
         The phase “as it is written” is NOT part of the statute. We may (or may not) be coming to different conclusions if it were in the statute.
         With respect to the phrase “as it appears on” in the provision

    “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,”

    you would interpret it this way:

    “if the name, spelled exactly the same way as on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided.”

    I would interpret it this way:

    “if the name, reasonably close to that on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided.”

    Now it would be fair to argue about what is the most natural interpretation of the term “as it appears on.”

    Ira (28a423)

  20. Words really no longer have any meaning.

    JD (eb5afc)

  21. ira

    It can be written in a way different than how it was on the declaration of candidacy, but still, according to you, be “as it appears”?

    Aaron Worthing (b8e056)

  22. Yes. “Lisa Mirkowski” would be counted for Lisa Murkowski.

    Ira (28a423)

  23. Burcowski. Anything a reasonable person could use to declare someone else’s intent counts, AW. Anything. Words no longer have any meaning.

    JD (eb5afc)

  24. How about writing “that lady” on the ballot, JD? I have a feeling that would count, too.

    Eric Blair (720ce1)

  25. Yup. That lady is a vote forMurcowskeeball. So is Lisa M. And senator. And tundra tart. And heiress of the corrupt establishment.

    JD (eb5afc)

  26. JD

    “And heiress of the corrupt establishment.”

    Well, you have to admit if a person wrote that, it would be pretty clear who we were talking about. at least as long as we were only talking about alaska.

    Aaron Worthing (b8e056)

  27. AW – true, which would compel that voter to go immediately to the nearest FBI office.

    JD (eb5afc)

  28. Bush v. Gore is not good law.

    The opinion itself says: this is not precedent

    Therefore (1) it cannot be relied on as precedent; and (2) it is inherently illegitimate because the Supreme Court does not have the power to issue non-precedent opinions.

    Daryl Herbert (501796)

  29. Daryl

    The claim that Bush v. Gore was not precedent was based on a misreading of this passage:

    > The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

    What this really is, is a perfectly ordinary statement that what they are saying applies only to the recount as it was being carried out in Florida and that as they confront different factual scenarios the application of the law might change. It did not mean that it wasn’t precedent. If the liberals try this sh-t again, you can in fact cite Bush v. Gore as precedent. Indeed, google scholar can show you alot of cases that have in fact cited Bush v. Gore as precedent.

    Aaron Worthing (e7d72e)

  30. #28 Really? The Supreme Court doesn’t have the power to issue non-precedential opinions? Where did you find that gem in the constitution?

    Milhouse (ea66e3)

  31. Patterico, Aaron, you seem to be convinced that “as it appears” must refer to the spelling. But what if it doesn’t? There is another plausible reading: that the sentence in question refers to a different name than the candidate’s legal one. It seems to me that the statute can be read as providing that a write-in candidate may be voted for in two ways: her name as it appears on her registration form, or her last name. Suppose Lady Gaga were to launch a write-in campaign; I assume that Gaga is not her actual name, but since it’s the name she’s famous under she’d surely use it for her campaign, rather than Jane Smith, or whatever her real name is. Perhaps the clause under discussion means that she can register as “Lady Gaga”, and any vote for “Lady Gaga” or for “Smith” (or whatever) will count for her.

    Tell me why I’m wrong.

    Milhouse (ea66e3)

  32. Milhouse

    Well, while i still disagree, i will say this in your favor. You are the first person to come up with a reading of the statute that at least came up with a decent alternate explanation for what the term means.

    Aaron Worthing (e7d72e)

  33. “Now it would be fair to argue about what is the most natural interpretation of the term “as it appears on.””

    This is the song that never ends. It goes on and on my friends…….

    daleyrocks (940075)

  34. Aaron Worthing/Milhouse:

    The state has made that “Lady Gaga” argument in both its federal court and state court pleadings.

    justsaying (1720ac)


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