[Guest post by Aaron Worthing; if you have tips, please send them here.]
I haven’t read completely through the opinion yet, but the key thing so far, is that by page 8 the judge is asserting that even excluding all potential challenges Murky still wins. So Joe loses even if he is right on the law. The judge announces on that page that he will still decide these issues, which strikes me as wrong. One of the reasons why you want a live controversy is that you want both sides to be vigorous in attack and defense. But if the case is moot, that is asking people to spend their own hard-earned cash on extra work by lawyers, not a realistic option. If it really is the case that no matter what happens, Miller loses, then that should be the end of it.
Anyway more analysis to come. You can read a news article on it, here.
Update: Some more analysis. The judge (needlessly) ruled that some minor spelling errors are allowed, but it still has to be pretty close. So writing “Lisa Murkowsky” probably counts. Murky ridiculously asserted that Lisa M. should count, ignoring the fact that Murky was not the only Lisa M. on the list of official candidates. It’s not clear where the line is, however. For instance, if the person wrote “Lisa Mercowski” or “Murkyski” as an intentional way to call her a mercenary or otherwise insult her? Mind you, protesting her conduct in this fashion is idiotic, but it reportedly happened. The best I can tell is that “Mercowski” would count, but no “Murkyski” but I am less than 100% sure.
The judge based the (pointless) decision primarily on Carr v. Thomas, a state court decision. I only have to quote the court’s discussion of that decision to see the problem with the logic of relying on it:
In Carr v. Thomas, the Alaska Supreme Court stated, “There is well-established policy which favors upholding of elections when technical errors or irregularities arise in carrying out directory provisions which do not affect the result of an election.” Because of this policy, “courts are reluctant to perm it a wholesale disenfranchisement of qualified electors through no fault of their own.” Therefore, “where any reasonable construction of the statute can be found which will avoid [disenfranchising voters], the courts should and will favor it.”
So, according to this judge, the interpretive rule should only apply with it does “not affect the result of the election.” Which is true here, because the case is moot, but will not be the case of any live election controversy, ever. I mean if you take that language literally, the rule will never be invoked when it matters.
But to be fair to the court, it appears that the Alaska State Supreme Court does not take it literally, having invoked Carr when ruling that state officials can give out a “cheat sheet” of write-in candidates’ names in this election. Certainly the Murky camp can’t pretend that this wouldn’t affect the result of the election, given that she was asking for it precisely to improve her chances in the election.
Still the Carr opinion also contains language limiting that rule where it would disenfranchise “qualified electors through no fault of their own.” As though misspelling her name was no fault of their own. I mean even if you advocate forgiving the error, you have to admit the fault lies at least a little in the hands of the individual. At most you might say it is not the fault of a handicapped person (though as a dyslexic I dispute that), but in that case, the ADA provides a remedy, requiring the state to provide reasonable modifications for the benefit of the handicapped only. Why it should provide an excuse to anyone else is beyond me.
So having decided that the Carr rule applies, the court then interprets the statute in light of its principle, stating that “as it appears” does not require exact spelling, because they could have included the word “exactly” in there or otherwise hit you over the head a little more. But the court reasons that it still means that it has to be pretty close to the way it is written, so unlike a lot of interpretations of the term “as it appears” the court does give it at least some meaning.
But the (pointless) argument the court makes about last names proves too much, writing:
This statutory interpretation becomes stronger when considering the other possible way a write-in vote can comply with the statute: writing in the last name of the candidate. This second possible way of writing in a candidate does not include the term “as it appears,” and is entirely silent as to spelling or exactitude.
The court thus interprets the phrase “as it appears” as applying only to when one writes the full name. The problem is that this proves too much. For instance, later in the opinion, the court makes it clear that its reading of “as it appears” would not be interpreted too broadly. The court writes that “Under Murkowski’s reading of the statute, a write-in vote with no oval filled in or a write-in vote such as ‘Lisa M.’ should be counted.” The court then rejects that as against statutory intent.
But of the last name of the candidate does not even have to be written “as it appears” then while “Lisa M.” would not qualify, “M.” all by itself would? Or perhaps take this example. Two different voters write the following.
Voter A: Lisa Moocowski
Voter B: Moocowski
According to the court, A would appear to be out of the question. But B could be counted as a vote for Murky? Or hell, what if they just wrote “Murky?” Simply put, it makes no sense to pretend that the last name shouldn’t be written “as it appears,” however you interpret the term “as it appears.”
All in all, a poor decision, reflecting perhaps the sheer pointlessness of it. The fact is that if Murky had more votes than Miller, even without counting the contested voted for Murky, then the court should have stopped right there and then. The only merit to this decision is that since the case is moot, one can truly say that the decision is being made without regard to whether a certain candidate wins or not.
[Posted and authored by Aaron Worthing.]