ANCHORAGE, Alaska — A federal court judge has denied a request by Alaska GOP Senate candidate Joe Miller to immediately stop the state Division of Elections from counting write-in ballots that stray from the exact spelling of a candidate's name.
Anchorage U.S. District Court Judge Ralph Beistline said Wednesday in his written decision that Miller had not demonstrated potential for irreparable harm if counting continues. Election officials are separating ballots that have variations in spelling.
Incumbent Lisa Murkowski, whom Miller defeated in the August Republican primary, ran as a write-in candidate in the Nov. 2 election.
Miller is running second to write-in ballots. Miller wants to prevent the state from using discretion in determining voter intent and to throw out ballots that misspell Murkowski's name.
Beistline said the state's response to Miller's lawsuit summed up his evaluation of the case to this point.
"Given that the questionable ballots will remain segregated and subject to subsequent review, with the results recorded separately, the Court finds no good reason to enjoin counting the ballots while the underlying Complaint is addressed in due course," Beistline wrote.
State attorneys also said an 18-hour window to respond was unfair and there were no circumstances that required such a rapid response. Beistline gave the state until Monday afternoon to respond. Miller's reply will be due Nov. 18.
At a news conference Wednesday morning in Juneau, Alaska Lt. Gov. Craig Campbell, who oversees the Division of Elections, said voter intent will drive how election workers count write-in ballots.
Campbell said he's basing that decision on past court cases.
"There are about three or four different court cases over the last 25 years that indicate the direction, a liberal interpretation of voter intent in the state of Alaska," he said.
He said he has been consistent from early on in stating that minor misspellings of a write-in candidate's name will be counted.
"I'm trying to enfranchise voters, not disenfranchise by a narrow view of the law," he said.
All ballots with misspelled names are being reviewed by at least four election officials who will determine whether a vote is valid.
"It could be one letter. It could be two letters. Certainly, as it gets farther away from the correct spelling, the more opportunity there is for disagreement with the counters and for a determination that it should not count," Campbell said.
Miller's lawsuit, filed by Anchorage attorney Thomas Van Flein, attacked the Division of Election process.
He said the U.S. Constitution gives legislatures the power to regulate federal elections and the intent of the Alaska Legislature is stated in law: voters must include a candidate's name as it appears on a declaration of candidacy, or the last name of the candidate.
The lawsuit claims Campbell and Elections Division director Gail Fenumiai released a new state policy after Election Day and 36 hours before write-in ballot counting commenced. The lawsuit claims that policy is vague because it does not contain specific standards to ensure that comparable ballots are treated the same.
"When a write-in ballot contains and unrecognized name not reflected on any candidate form, they will attempt (somewhat mystically) to divine the 'intent of the voter' in order to determine the candidate for whom that ballot should be counted," the lawsuit said.
The new policy makes no provision for the "many" voters who cast protest votes, Van Flein said, by writing in a variation of Murkowski's name. Protest voters were trying to send a message to Murkowski but their votes will be counted for her, he said.