December 01, 2010

"How Do You Spell M-U-R-K-O-W-S-K-I? Part I: The Question of Assistance to the Voter"

Chad Flanders has posted this draft on SSRN. Here is the abstract:

    The 2010 race for the Alaska Senate now seems to be over. After losing in the Republican Party Primary to Tea Party-backed candidate Joe Miller, Senator Lisa Murkowski staged a write-in candidacy and, bucking both U.S. and Alaska history, won the general election. Although much attention has been paid to Miller's post-election challenges to Murkowski write-in ballots, a major election law question was at issue prior to the election: to what extent can poll workers assist voters who need help in voting for a write-in candidate?

    After Murkowski declared her write-in candidacy, the Alaska Division of Elections distributed a list of eligible write-in candidates to polling places, in case voters had questions about how to properly spell the name of a write-in candidate. Both parties, sensing this would benefit Murkowski, cried foul, and challenged the new policy in Alaska state court as a violation of the Division’s own regulations prohibiting the distribution of "information" about write-in candidates at polling places.

    This essay examines four issues regarding voter assistance in the Murkowski litigation: (1) how to interpret statutes and regulations regarding voter assistance; (2) what kind of assistance is permissible and what kind is not; (3) whether the state can legitimately handicap the ability of voters to write-in the name of a candidate; and (4) how decisions on assistance to voters before the election might affect a court's disposition on cases that arise after the election.

I have not read this yet but I am a huge Chad Flanders fan.

Posted by Rick Hasen at December 1, 2010 05:31 PM