Judge rules against Miller in Alaska Senate race
Friday, December 10, 2021 9:40 PM

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(Source: Associated Press/AP Online)By BECKY BOHRER

JUNEAU, Alaska - A judge on Friday ruled against Republican Joe Miller's lawsuit challenging how Alaska counted write-in votes for rival Lisa Murkowski in their Senate race, delivering a crushing blow to the tea party-backed candidate's longshot legal fight.

Judge William Carey's ruling all but ends Miller's hopes of getting relief in state court. Miller can appeal to the state Supreme Court, and his spokesman said he was mulling the option, but Carey cited past decisions by the high court in his ruling.

The judge said his decision to throw out Miller's lawsuit wouldn't take effect until Tuesday to allow time for an appeal.

Miller spokesman Randy DeSoto said there are still outstanding issues "in terms of wanting to get a true and accurate count, and we don't feel like we're there yet."

Murkowski called on Miller to concede, telling The Associated Press: "It's time to end this. It's time to say that the election is over."

The ruling marks a victory for Murkowski, who sought to become the first U.S. Senate candidate since 1954 to win as a write-in. Senators are scheduled to be sworn in Jan. 5, and the legal dispute has thrown into doubt whether someone from this race will be included. Murkowski's attorneys have argued that her seniority is at risk if she isn't sworn in then.

Miller's attorneys had asked Carey to strictly enforce a state law calling for write-in ballots to have the oval filled in, and either the candidate's last name or the name as it appears on the declaration of candidacy written in.

Miller argued the state shouldn't have used discretion in determining voter intent when tallying ballots for Murkowski. The state relied on case law in doing so and allowed for ballots with misspellings to be counted toward Murkowski's total.

"If the legislature intended that the candidate's name be spelled perfectly in order to count," Carey wrote in his much anticipated ruling, "then the statute would have included such a restrictive requirement."

Unofficial results showed Murkowski ahead by 10,328 votes and still in the lead by 2,169 votes even when excluding votes challenged by Miller's campaign. Carey said whatever interpretation he made would not change the outcome of the race, that "Murkowski has won by over 2,000 unchallenged votes."

Murkowski ran an unprecedented write-in campaign after losing the GOP primary to Miller. She focused heavily on educating voters on how to cast a write-in ballot for her, and she emerged with a wide lead after a tedious, weeklong count of ballots that was overseen by observers for both Miller and Murkowski.

Miller last month said he'd stop fighting if the ballot math didn't work in his favor. But he has since insisted that his fight was a matter of principle to ensure the law is upheld and Alaskans got a fair election.

Murkowski's campaign accused Miller of seeking to disenfranchise thousands of Alaska voters, and Murkowski said Carey's ruling delivered a "stinging rebuke" to his claims.

"When a court finds no merit in any of the arguments he's presented, that's really quite stunning," she said.

Arguments in court this week centered on what the word "appears" means. Some challenges by Miller observers included ballots in which voters spelled her name correctly but wrote "Murkowski, Lisa." Miller later conceded those should not have been challenged.

Miller attorney Michael Morley contended it wasn't the order of the words but the spelling that mattered. The spelling is what makes a name a name, he told Carey.

Carey said in his ruling that Miller's interpretation of the law was "inconsistent."

Miller also raised questions about precincts where election workers failed to mark whether they'd gotten identification of voters and ballots with similar-looking signatures. While the latter could have been due to voters asking for and receiving legally acceptable help filling out ballots, Morley argued these questions merited further scrutiny. Carey found the claims "unsupported."

"Nowhere does Miller provide facts showing a genuine issue of fraud or election official malfeasance," the judge wrote. "Instead, the majority of the problematic statements included in the affidavits are inadmissible hearsay, speculation and occasional complaints of sarcasm expressed by DOE (Division of Elections) workers."

There were also more than 2,000 ballots that were not counted toward Murkowski's tally and challenged by her observers. Those included ballots in which the ovals weren't filled in but Murkowski's name was written in, and those in which "Lisa M." was written. Murkowski's camp argued the intent of voters in those cases was to vote for Murkowski. But Carey sided with the state here, too, in saying those should not be counted for her.

State officials and Murkowski's campaign have sought a speedy resolution, saying Alaska would be deprived of representation if a winner isn't sworn in with the new Congress next month.

On Friday, state officials told a federal judge it would seek to have the stay he imposed on certification of the race lifted if Miller lost the state court case and did not file a speedy appeal to the Alaska Supreme Court. U.S. District Judge Ralph Beistline last month kicked the case to state court and issued the stay to allow for the issues raised by Miller to be resolved.

DeSoto said Miller believes every valid write-in ballot should be counted "but not those that fail to meet the standard established by the state legislature." Miller has sought a re-count of all ballots and a final count that "includes only those who are eligible to vote."

"When we've ensured that these issues have been addressed, then we'll have an accurate count, and if Lisa Murkowski's tally is greater than Joe's, then he will certainly honor that result," DeSoto said.

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