December 10, 2010

Joe Miller Loses: What Does It Mean?

You can read the district judge's 34-page opinion ruling against Joe Miller.

Though the opinion is 34 pages long, its main points can be summarized in a few sentences. First, Joe Miller's main argument against the counting of misspelled Murkowski votes is moot because even if all of those ballots are excluded, Murkowski would still win. Second, even reaching the issue of statutory interpretation, case law from the Alaska Supreme Court mandates that courts construe ambiguous statutes so as not to disenfranchise voters for technical mistakes. (This is the democracy canon that I've written about in connection with this election.) Third, Miller is wrong that the rules the Division of Elections used for counting ballots violated Alaska's administrative procedure rules. And finally, Miller did not present any credible evidence of fraud to call the election into question.

Interestingly, the Court rejected Murkowski's argument that the Democracy Canon (mentioned by name in this case, for the first time I know of) mandated the counting of ballots where a voter voted for Murkowski but failed to fill in the oval, or voted simply for "Lisa M."

What happens next? If Miller were looking at his chances of success, he'd have to concede right now. But he hasn't seemed to be taking chances of success into account in his post-election litigation. So he can appeal this case to the Alaska Supreme Court. He can also argue in the stayed federal proceeding that the state court's rulings violate his constitutional rights. This would most likely be a due process argument, and I think it is likely to fail given the state court's analysis and its noting that the rules for counting write-ins were established before the election with no objection from any party (a kind of laches/delay argument).

Joe Miller has virtually no chance of success at this point, but I don't know if that means the litigation ends.

Posted by Rick Hasen at December 10, 2010 04:20 PM