Patterico's Pontifications


Joe Miller Loses

Filed under: General — Aaron Worthing @ 8:04 am

[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.]

38 Responses to “Joe Miller Loses”

  1. oh well…

    Miller lost, guess Alaskans dont like people who say they cant investigate him

    some even learned how to spell just to make sure he didnt get in

    EricPWJohnson (5907f7)

  2. No, it means election laws don’t mean a thing, look for more found ballots like Minnesota and Conn, more
    deliberations over chads, like Florida, or outright
    fakery like in the Jenkins/Landrieu race of ’96

    narciso (6075d0)

  3. narc

    If the uncontested ballots still have murky winning, how is this at all an injustice?

    Aaron Worthing (b8e056)

  4. They let the principle that it doesn’t matter what the law says, had he thrown out those clearly
    erroneous ballots, then I would feel he was on higher ground.

    narciso (6075d0)

  5. I do agree with Aaron that this isn’t an injustice insofar as the wrong person won the election.

    Alaska wanted Murkowski and her pork. This is the correct, sad election result.

    However, it is clear the reasoning of this judge is a complete load of crap. The law says ‘as appears’ ‘no exceptions’. That’s plain as day. It is not flexible. The legislature went out of their way to make write-in bis more difficult.

    Because the system didn’t like the law in this case, they bent the rules for a very powerful candidate. But what about regular candidates? Reform candidates who can’t wage lawsuits like this? They have gotten the other law, for decades. Why is that?

    Why have a different law for the powerful? That’s all Alaska has when they permit people to bend laws that judges do not like. He can pretend the legislature left out the ‘no exceptions’ language, but he’s a disgrace to the system.

    It is an injustice when bad laws are not enforced, but left on the books. they should enforce this law to the letter, and if it’s so horrible, change the law so that everyone benefits. Waiting for Murkowski to need the new interpretation is corruption.

    Dustin (b54cdc)

  6. Only a true conservative would support Mercowskee and Scozzafava.

    JD (822109)

  7. I think the court was essentially right. In general, the law prefers to count clearly intended votes, and I don’t think the Alaska statute is as clear as it needs to be to overcome that preference.


    JRM (cd0a37)

  8. “In general, the law prefers to count clearly intended votes,”

    That seems like a fair general maxim for elections, of course. But the law said ‘no exceptions’ ‘as appears’. That’s clear to me, and what’s even more clear is that we’re changing the law because we don’t like the result, which favors the powerful.

    JRM, no one should be above the law, even if the law contradicts your ‘in general, the law [should] prefer X’. We may not like that this law clearly doesn’t prefer that, but rather prefers making it difficult to wage a write-in campaign by setting up a ‘no exceptions’ policy for any deficiency, rather than a ‘clearly intended’ exception.

    We can either have a system of laws or a system of men.

    Dustin (b54cdc)

  9. Part of the problem was that they said that write in votes for Joe Miller (spelled correctly) would NOT count because he was not on the list of ‘write in’ candidates. So it became quite obvious that the court system tilted toward the powerful politician when her name was given out at polling places. How clear is the intent of the voter when they CORRECTLY spelled Joe Miller versus MISSPELLED Lisa M’s? A big time double standard is applied similar to Gore only wanting a recount in Demonrat counties where he could conceivably pick up additional votes.

    Alaska politics looks like an insider game with the rest of the country stuck with the results of a corrupt process.

    Texas Mom 2012 (cee89f)

  10. Texas Mom 2012, do you have a citation for the claim that write-in votes for Miller aren’t being counted?

    AS 15.15.360(a)(9) says:

    “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.”

    I think any sane reading of this is that write-ins for candidtes whose name are printed on the ballot are to be counted.

    aphrael (9802d6)

  11. aphrael, I can’t recall if they reversed this, but indeed the State said it was not going to count write-ins marked “Joe Miller”.

    A lot of the authorities and pundits who say it’s a massive injustice for Joe Miller to challenge a Murkowski vote with a minor misspelling also said it was fine not to count a Joe Miller write-in because of their interpretation of the rules (which I agree, is wrong).

    That’s the problem with ‘this result is such an injustice we must reinterpret the law’ solutions. They are extremely subjective and I just don’t trust judges or anyone else with that kind of power.

    I think the law should be amended to be blatantly clear, but I also think it was clear enough already and suspect people can pretend to see ambiguity in any law they want.

    Dustin (b54cdc)

  12. Thank you for the link, Dustin.

    So, 15.15.360(a)(11) says that “A vote for a write-in candidate, other than a write-in 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.”

    15.15.360(a)(9) and 15.15.360(a)(11) are inconsistent – one says that Miller’s name should be counted, one says that it shouldn’t be.

    I suppose at that point you need to look to legislative history, which I am not willing to take the time to do. However, my suspicion is that 15.15.360(a) was adopted as a single piece of legislation, so we can’t use the amendments-supercede-the-amended rule of interpretation.

    My sense is that (a)(9) should take priority over (a)(11), particularly if the state has a general “intent of the voter” rule.

    aphrael (fe2ce4)

  13. As an aside, every state whose election code I’ve looked at has inconsistencies like this, which only come up (of course) in the case of contested elections. California’s rules certainly wouldn’t pass this kind of scrutiny.

    aphrael (fe2ce4)

  14. I may update or write a separate post on this, but I find the reasoning completely unconvincing in terms of the interpretation. Sure, it’s clear it doesn’t matter to the election result, and that is the real problem for Miller as far as the big picture goes. Given that, I don’t know why he would bother to appeal. But the judge’s discussion of the meaning of “appears” is ridiculous on its face.

    If I am going to bother to explain why it may take a post. And I don’t know that I have time for a post.

    Patterico (c218bd)

  15. By the way, Aaron has done a nice job on the basics of why the decision doesn’t matter as well as why it’s wrong. I might have a few things to add regarding the specific linguistic issues, but the basics are all right there in the post.

    Patterico (c218bd)

  16. You gotta love these judicial decisions that say forget about what the statute says, somebody will tell you what the standards are for this election when they see the ballots. Trust us. And by the way, that part of the statute about filling in the oval, just disregard it.

    daleyrocks (c07dfa)

  17. This, of course, is similar to what happened in Florida in 2000 when the Supreme Court (Florida’s) changed election law.

    Mike K (568408)

  18. This rather reminds me of how David Boies asked the Chief Justice of the Supreme Court of Florida to join David in a conspiracy to change the meaning of the words “all the votes” in the Bush/Gore election case. David told the Judge: “It depends on how WE[my caps] define ‘all the votes'”.

    Fred Beloit (3f1b2d)

  19. Patterico

    Well, a separate post, or just your own updates. Either works.

    Aaron Worthing (b8e056)

  20. I thought Miller was arguing for a full hand rfecount.

    Davod (bce08f)

  21. The errors were committed by those who demanded a write in vote, and they didn’t know how to write a name that has been synonymous in the State for 30 years,

    narciso (6075d0)

  22. Miller may have had a chance if he hadn’t been endorsed by Palin.

    JT (02ebc4)

  23. I have a little experience at this sort of thing, not to go all Nathan Jessup ‘but we have rules here for a purpose.

    narciso (6075d0)

  24. No, JT, he would have failed to win the primary.

    Alaska had a very clear choice in this case. The voters decided they need pork, even if that entangles their state’s future in the sinking ship of a bloated US budget.

    There’s your problem. Not Palin. She endorsed the right guy. If there are people so angry that they vote against anyone she endorses, I don’t think that’s her fault anyway.

    Dustin (b54cdc)

  25. Murcowski won but not only the rest of america will pay for her tax and spend ways but alaskans may be hurt the most.Many who owe their election to the tea party will treat her as just another democrat. Even rinos will rue the day she opened the door to write in challenges in 2012.This makes all seats less secure.

    dunce (b89258)

  26. What does it say about the voter if, handed a list of write-in candidates in the polling place, they cannot correctly spell the name of their chosen write-in?

    We do get the government we deserve.

    AD-RtR/OS! (0bf884)

  27. True conservatives dont vote for people with sketchy employment records, lying, ethics violations, hiring of relatives against federal regulations

    real conservatives think that these things matter

    EricPWJohnson (5907f7)

  28. 14. I may update or write a separate post on this, but I find the reasoning completely unconvincing in terms of the interpretation. Sure, it’s clear it doesn’t matter to the election result, and that is the real problem for Miller as far as the big picture goes. Given that, I don’t know why he would bother to appeal. But the judge’s discussion of the meaning of “appears” is ridiculous on its face.

    If I am going to bother to explain why it may take a post. And I don’t know that I have time for a post.

    Comment by Patterico — 12/11/2010 @ 10:54 am

    15. By the way, Aaron has done a nice job on the basics of why the decision doesn’t matter as well as why it’s wrong. I might have a few things to add regarding the specific linguistic issues, but the basics are all right there in the post.

    Comment by Patterico — 12/11/2010 @ 10:55 am

    We alredy hav a cuple of threds on the interpretation issues abowt the Alaska statute.

    Ira (28a423)

  29. As it appears now means a reasonable approximation of how the voter feel it could have appeared.

    JD (b98cae)

  30. Don’t see much hand wringing about Joe as opposed to O’Donnell. I guess his “picadillos” are not as egregious as C.O.’s. Oh well.

    Torquemada (15521c)

  31. If you have evidence tha Miller broke federal regulations in hiring, you must immediately contact the FBI. This is their highest priority.

    JD (306f5d)

  32. 27….And you are the authority on what a True Conservative is, believes, and how he acts.

    AD-RtR/OS! (6dbf61)

  33. I really, really wish Joe had pulled it out. I’d like to get things moving faster. That way we might get back to sanity faster.
    Because here are the results of populist idiots winning and following through on their promises:

    A Nassau County Long Island tea partier won office as county executive and followed up with promised tax cuts. Problem is, he kept spending. Now they’re swamped in debt, bond rating down and state agency about to take over.

    Wisconsin’s new governor campaigned on a promise to reject federal stimulus funds. He followed through. So did a big train manufacturing company in Wisconsin. It’s leaving and taking a lot of jobs to a state that accepts the high-speed rail funding.

    Larry Reilly (ae99e7)

  34. Larry, it’s really weird that you condemn the WI Governor for cutting spending, while you condemn the other Tea Partier for not cutting spending.

    It gives the impression you’re not being very fair.

    I agree with your initial point (the one you contradicted) that tax cuts must go along with spending cuts.

    You’re right that this is the path Miller wanted us on, and I wish he had won too.

    The complaints EPWJ has listed out several times are a shame, but they don’t amount to much, especially when compared against Murkowski’s corruption. I wish I could be a purist and never for anyone with ‘ethics problems’ as small as online poll voting with a company computer, but we have to pick the best option among competitors instead of simply refuse to pick the reformer if he’s not perfect.

    It’s basically impossible for someone to say they are a conservative on policy if they preferred Murkowski to Miller. They may say both were below their standards, but that doesn’t change the fact that Miller was the best choice we had, easily.

    Any reform candidate in AK is going to be slimmed horribly as major problems with the corrupt are buried. Some states can see through the BS and some cannot. AK will pay a steep price when the FED gov either cuts their pork or runs out of money (there are no other outcomes).

    Dustin (b54cdc)

  35. Impression, Dustin? Reilly has always been about incoherent snark at the cost of any consistent position on policy. So he happily applauds the corruption of the earmark culture. Of course, the very idea that Reilly defines “sanity” as trillion dollar deficits as far as the eye can see is laughable.

    SPQR (26be8b)

  36. We had an example down here in South Florida, the mayor of a major city, was up for reelection, the
    only significant candidate that chose to run against him, was a local Spanish language DJ who’s a bit ofa shock jock. He had the support of practically every faction, a huge warchest, the challenger’s critiques of city finances, shady dealings were drowned out. Then came the popping of the bubble, his designated successor was crushed in the following election, and he high tailed it to Cambridge, to teach students successful municipal administration; I’m not making this up.

    narciso (6075d0)

  37. Wow, Larry, that NYT link is pretty remarkable in its unfairness.

    Not only does the NYT admit the tax cut was a small portion of the deficit (if one at all, they may be assuming revenues would have been even lower), but they say this:

    Nassau County Executive Edward P. Mangano did not impose a hiring freeze. He did not stop borrowing to subsidize some of the richest school districts in the country. He did not eliminate the Police Department’s beloved mounted unit.

    What’s the unstated point here? That Mangano probably can’t alter how much they pay people. That’s why the only way to spend less on people is to eliminate them. He has to gut his schools and police department (which obviously the NYT would scream about).

    That’s why he Mangano was elected… the system his county has had for years is totally broken. Larry’s right that Mangano needs to find ways to spend less, but if the NYT’s examples are schools and cops, I think that says an awful lot about how little waste Mangano is actually responsible for.

    Dustin (b54cdc)

  38. BTW, what the NYT wants us to accept is that we’re screwed, thanks to the NYT and her endorsed fleet of democrats who agreed to union deals and massive bloat.

    They want everyone to accept much higher taxes. We can’t spend less, they say, on schools and cops, so we have to tax more. They ignore the consequences of taxing more, or the fact that spending will continue to grow forcing taxes higher later, forever. They ignore that this is a scheme that leads to disaster.

    Just tax more, right now, and get us through the short term crunch as people flee the tax system anyway.

    I think its time we stopped worrying about the NYT’s opinion. The real solution is to breach our contracts with unions and drastically reduce the cost of each employee, hopefully firing many of them.

    This isn’t a very good solution, but for a lot of governments, it’s inevitable. They will go bankrupt. Some will attempt to stimulate their region with tax cuts and the tiny spending cuts they are able to work out, but for the most part, we’re always taking ‘the first steps’ for budget cuts, never the heavy stuff.

    God Bless Texas.

    Dustin (b54cdc)

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