[Guest post by Aaron Worthing; send your tips here.]

I discussed this over a week ago but the fallout keeps, well, falling.  Last week three of Justices serving on Iowa’s Supreme Court were booted out of office, apparently over their decision declaring a constitutional right to gay marriage.  So, for starters, this editorial from the NYT called A Blow to the Courts on the Iowa Supreme Court retention election is mostly exactly what you would expect, saying for instance that

What made the Iowa outcome even more demoralizing is that this was a retention election — one that asks for a simple yes-or-no vote on whether to grant judges another term. These elections are supposed to spare sitting judges from competing in multicandidate contests, making the process as apolitical as possible. It didn’t work that way this year in Iowa, or in many other states.

Right.  One is tempted to say it is hypocritical to say it was political of the voters to vote them out of office, but it was not at all political to pull a brand new right out of their keisters.  But really are we surprised by this, either?

But the funny thing is that they then praise the outcome of a straight judicial election in Illinois, ending by saying

This year’s campaign is one more reminder of why the 39 states that hold judicial elections should scrap them in favor of merit screening and appointment of judges for a long fixed term.

In other words, they are happy with the Illinois result, and dismayed by the Iowa result, so…  states should be more like Iowa?  Huh?

And the commentary on the election gets even dumber over at Proposition 8 Trial Tracker, when Rob Tisinai denounces the organization that campaigned  against the Iowa judges (the National Organization for Marriage or NOM) as “[t]he people your (Founding) Fathers warned you about.”  He explains that sure, the founders would be shocked by rulings in favor of gay marriage

(more…)

Joe Miller’s legal team says if you couldn’t spell it right, it shouldn’t count:

Votes that misspell Lisa Murkowski’s name shouldn’t count as the state today tallies write-in ballots in the U.S. Senate race, Senate candidate Joe Miller said in a federal lawsuit Tuesday.

Miller is asking a judge to stop the state from making a judgment on a voter’s intentions if the voter wrote in something other than “Murkowski” or “Lisa Murkowski.” State law allows no leeway for other spellings, his lawsuit says.

At first glance, this might seem overly formalistic and harsh. Say a voter intends to vote for Lisa Murkowski, but writes in “Lisa Murkowsky.” Miller is saying that shouldn’t count as a vote for Murkowski?

Correct — and it looks to me like he’s right. And should be.

Miller’s legal papers, which you can read here (.pdf), argue that, under Alaska law, a write-in candidate’s name must be written “as it appears on the write-in declaration of candidacy.” The filing quotes legislative language saying:

The rules set out in this section are mandatory and there are no exceptions to them. A ballot may not be counted unless marked in compliance with these rules.

As the Al Franken recount showed, recounts are messy propositions — and depending on the standard you choose, it can sometimes be quite difficult to interpret a ballot. (A good set of examples from the Franken recount is discussed here.) If the Alaska Legislature chose to set out clear rules to avoid such a situation, I say more power to them.

Miller has another argument that is interesting:

Prior to the election, people commented on radio stations and in the comment sections in blogs and newspaper stories that they would deliberately incorrectly write-in a variation of “Murkowski” as a protest. They did so knowing that Murkowski was spending hundreds of thousands of dollars on a “spelling bee” campaign, replete with wrist bands, pencils and tattoos, all to educate the voters on proper spelling. Why was this done? Because even Murkowski had read the law and knew that it required proper spelling — “No exceptions.” So protest voters were trying to send a message to the candidate.

In other words, Miller’s lawyers claim that people who misspelled Murkowski’s name on a write-in ballot may have been mocking her, “safe” in the knowledge that their vote would not be counted for her because of the state’s clear laws. At a minimum, this argument throws a monkey wrench at a court trying to ignore the clear language of the law to apply a murky “intent” standard. (See what I did there?) Whether it’s a persuasive monkey wrench is another issue.

I haven’t examined the case law, but the statutory language seems crystal clear. Even if, as I have heard, Alaska applies an “intent of the voter” standard as to your standard ballot markings, I’m not sure the same case law would govern write-in ballots, in the face of such clear rules.

INTENTIONALISM POSTSCRIPT: Note that, under an “intentionalist” argument, when a voter intends to cast a vote for Lisa Murkowski, that is a vote for Lisa Murkowski regardless of what markings appear on the ballot. A voter could write in the words “Joe Miller” and the intentionalists would tell you that the ballot is a vote for Murkowski — as long as the voter subjectively intended to vote for Murkowski. What’s more, they would tell you that any statute mandating otherwise is a “rewriting” of the ballot.

This is yet another illustration of why pure “intentionalism” is unworkable in several legal settings, recounts being one obvious example. What matters is whether the objective evidence of the markings on the paper reflect a vote for a particular candidate, as determined by a reasonable observer. What’s more, if the law says that the ballot is improperly marked, it doesn’t count.

It’s a formalistic approach, to be sure. But a degree of formalism is absolutely essential to making law work.

Sorry, Lisa. Your illiterate voters should not have their votes counted. The Legislature has spoken.

[Guest post by Aaron Worthing; send your tips here.]

You might want to shower after reading this one.  If true, this is officially the scummiest crime I have ever heard of:

$40M in Holocaust Reparations Stolen in Massive Scam

Millions of dollars meant to help survivors of the Jewish Holocaust instead were stolen and fraudulently given to thousands of people who were not eligible for the funds, Justice Department officials said.

The FBI said insiders who were responsible for verifying requests to the Conference On Jewish Material Claims instead helped commit a massive fraud.  Investigators said in exchange for kickbacks, the employees signed off on bogus applications submitted in part by Russian immigrants who falsely claimed they had lost their homes and belongings during the Nazi era.  Seventeen people have been charged in the outrageous swindle.

“The alleged fraud is as substantial as it is galling,” U.S. Attorney Preet Bharara said.

Officials said Semen Domnitser was one of the alleged ringleaders who signed off on fraudulent applications from more than 4,000  people. In all, more than $40 million in funds provided by the German government meant for survivors was stolen or is unaccounted for, prosecutors said. Investigators said the Claims Conference first uncovered some of the alleged fraud and alerted the FBI to the ongoing scheme.

As they say read the whole thing.

Against all odds, my already low estimation of human nature just went down a notch.

Exit question: is it wrong to laugh when you see Mr. Domnitser’s first name?  Yeah, probably.

[Posted and authored by Aaron Worthing.]