October 28, 2010

Very Curious Alaska Supreme Court Order in Murkowski Write-In Case, Leading Potentially to a Major Post-Election Litigation Issue After Election Day

Yesterday I reported that an Alaska state supreme court judge had barred the division of elections from providing a list of certified write-in candidate to voters, ruling that this was contrary to Alaska state law and would be a deviation from past practice. (This was seen as a blow to Sen. Murkowski, who is now apparently leading in polls--if voters can get their intent across adequately on write-in ballots).

As reported by the Anchorage Daily News, the Alaska Supreme Court issued this order staying that trial court ruling, ordering that the write-in information (of candidate names, but not party affiliation) be provided to voters, and then ordering, if feasible, elections officials to segregate the ballots of those voters who voted after requesting the write-in information.

It seems to me that if this is a razor-thin election, which will depend upon the counting of those ballots, this segregation is setting up a major fight over those ballots. It also presents the very difficult kind of clash that I described in my recent Stanford Law Review article, The Democracy Canon. On the one hand, providing voters with information so that they could cast a ballot that is more likely to be counted consistent with voter intent seems supported by the canon: if the Alaska statutes and regulations plausibly could be construed to allow for the provision of this information (I have not yet examined these statutes and regulations), the canon suggests they should. But I offer the canon in my article with a big caveat: it may violate the Due Process Clause of the United States Constitution to change the rules for the counting and casting of ballots---even in reliance on the canon-- during the course (or right after) the election. Key cases here are Roe v. Alabama and the Franken-Coleman dispute. The upshot: if it is a razor-thin race whose outcome depends upon the counting of those segregated ballots, do not be surprised to see the anti-Murkowski forces (be they Democrats or Republicans) running to federal court arguing that the counting of the ballots would be unconstitutional. We may even see parties go to federal court now, before the election, raising such an issue.

Posted by Rick Hasen at October 28, 2010 08:50 AM