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November 10, 2010

Joe Miller's Spelling Lawsuit

Above the Fold Update: Via Drew, the court has denied the injunction Miller wants on counting votes, but the lawsuit will also go on. The reply brief is due Monday, so the decision will come some time after that.

Original Post:
I'm sure you've heard by now, but I don't know that we've discussed it here. Our candidate in Alaska has filed a lawsuit to enjoin the Alaska Division of Elections from using a recently-written policy (as in, written after the election) to discern voter intent in cases where a ballot appears to be cast for Lisa Murkowski, but is not spelled exactly correct.

Patterico has details, including a link to the lawsuit if you're interested in that kind of thing. The policy being challenged -- that is, the guidelines for use when determining whether a vote is for Murkowski or not -- is attached to the lawsuit PDF.

Miller is asking the court to enforce an exact-spelling rule. If the voter did not write exactly "Lisa Murkowski" or "Murkowski", Miller says the vote should not count.

Patterico writes:

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.

But it's not always that simple. Definitely click over to read what else Patterico has to say, but I'll quote a bit more here and respond below.

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.

[...]

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.

This is the part where I disagree with Patterico: The Alaska legislature may have spoken, but the legislature cannot by statute override the U.S. Constitution, which protects, among other things, the right to vote and to have your vote counted.

To be sure, a line has to be drawn. But the overly formalistic line chosen by the Alaska legislature likely disfranchises a non-trivial number of voters in violation of the U.S. Constitution. For example, voters who write "Lis Murkowski", "Lisa Murcowski", and "Lisa Murkowsk" will all be disfranchised if Miller is correct. In fact, the exact-spelling rule, by it's strict nature, leads to less accurate vote counts than the rule drafted by the Alaska Division of Elections.

State-law imposed burdens on the right to vote can be constitutional in many circumstances, but the court will weigh the injury to the right to vote against the interest asserted by the state. What interest will be asserted in favor of the exact-spelling rule? Accuracy in counting is undoubtedly an important public interest and it weighs heavily against the exact-spelling rule. Disfranchisement (and thus, inaccuracy) is the crux of the injury here. That's an substantial injury, probably requiring strict scrutiny of the law. The only other state interest I can see is uniformity, but I doubt that will outweigh the injury. After all, uniformly throwing out all write-in votes would clearly not be a constitutional burden on the right to vote. Uniformity alone can't get you there. Not in the face of voter disfranchisement.

Moreover, the Alaska Supreme Court has a lengthy line of cases holding that “the crucial question in determining the validity of ballot markings is one of voter intent.” For example, the statute requires that the bubble be completely filled in. But that hasn't stopped the Alaska courts in the past from using the principle that voter intent is constitutionally protected to count votes in which the bubble is partially filled.

In short, the right to vote and to have one's vote counted will be weighed against the exact-spelling rule. I can't think of any interests that will weigh heavier than complete disfranchisement for a mere slip of a pen. And so I expect the courts will not side with Miller, but with the Division of Elections. After all, knocking down literacy tests for voting was a pretty big deal at one time.

The one thing I can't decide is if he has a procedural claim. Not that he's right about the exact-spelling rule, but that he's right about it being too late in the process for the Division of Elections to settle on its present counting policy. On the one hand, they picked their policy after the freakin' election. On the other, the Supreme Court let Florida pick counting policy after the election in Bush v. Gore so long as it was evenhanded, so that might not be much of a problem after all.


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posted by Gabriel Malor at 05:08 PM

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