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December 22, 2010

Alaska Senate Update: AK Supreme Court Rules Against Miller

The last time we checked on the Alaska Senate race, Joe Miller had just had his state law claims tossed out by a state judge. He appealed that directly to the Alaska Supreme Court.

Minutes ago, that court affirmed the decision that the Alaska Division of Elections properly counted the write-in votes by adhering to the intent of the voter. The decision is available here (PDF).

Miller still has a case pending in the federal courts, but that was only to maintain the federal injunction on certifying the results. That judge already indicated he would defer to the state court's interpretation of state laws. So unless Miller raises some constitutional claims -- that would be U.S. constitutional claims -- he's finished.

Will be back with more after I've read the decision in full.

Later: Okay, the part where I'm insufferably smug is tucked below the fold.

Remember that Patterico and I disagreed about the likely outcome. He had a spot-on statutory analysis, but I suggested constitutional concerns about the right to vote, the disfranchisement caused by strict application of the exact-spelling rule, and long-standing Alaskan "intent of the voter" jurisprudence would overcome the statutory analysis.

Here's what the Alaska Supreme Court wrote:

We start with the bedrock principle that “[t]he right of the citizen[s] to cast [their] ballot[s] and thus participate in the selection of those who control [their] government is one of the fundamental prerogatives of citizenship.” The right to vote “is fundamental to our concept of democratic government.” . . . We have applied this principle throughout the years because we recognize that the right to vote is key to participatory democracy. Guided by this polar principle, we declared in Edgmon v. State, Office of the Lieutenant Governor, Division of Elections that “the voter shall not be disenfranchised because of mere mistake, but [the voter’s] intention shall prevail.” Most recently, in State, Division of Elections v. Alaska Democratic Party, we noted that “[w]e have consistently emphasized the importance of voter intent because the opportunity to freely cast [one’s] ballot is fundamental.”

. . .

But it is Miller’s interpretation of the statute that would erode the integrity of the election system, because it would result in disenfranchisement of some voters and ultimately rejection of election results that constitute the will of the people. We have consistently construed election statutes in favor of voter enfranchisement. . . . In order to ensure that each citizen’s vote is as meaningful as every other vote, we must interpret the election statute to preserve a voter’s clear choice rather than to disenfranchise that voter.

That's the heart of the exact-spelling rule portion of the decision. If you're interested, I encourage you to read the decision itself. It also considers Miller's more technical claims under the Equal Protection clause and the Administrative Procedures Act, as well as his late-pleaded fraud claims.

One notable portion for the lawgeeks, this court did not mention that Murkowski would have won the election even if he won the lawsuit, as the lower court did. That was pointed out as a central flaw of the decision below, because if that were the case, the lawsuit would be moot and the decision impermissibly "advisory."

The other lawgeek thing to note is that, just as the U.S. Supreme Court did in Bush v. Gore the Alaska Supreme Court issued the decision "per curiam." That is, "through the Court" without listing which justice authored it or which members agreed. I suspect the reasoning was the same: to preserve, as much as possible, the public integrity of elections, the decision goes unsigned so as to distance it from complaints of partisanship.

Even later: The Alaska Supreme Court also ruled against Murkowski's cross-appeal. She wasn't part of the original lawsuit, but intervened to contest the Alaska Division of Voters' decision to not count ballots where her name was written in, but the write-in bubble was not filled. According to the judges, that requirement was unequivocal in the statute, and not amenable to statutory interpretation.

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posted by Gabriel Malor at 05:36 PM

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