December 22, 2010

Breaking News: Alaska Supreme Court Rejects Miller Appeal, Says Certification Can Go Forward

You can read the opinion here.

Analysis: In a unanimous, unsigned (per curiam) opinion, the Alaska Supreme Court said that nothing blocked the state of Alaska from certifying the U.S. Senate race for Lisa Murkowski. Though the court left open the possibility that Miller could follow up with an election challenge after certification, the court was very discouraging of such a challenge, suggesting that Miller would likely lose such a challenge. At this point, a rational politician hoping for a future in Alaska politics would throw in the towel rather than contesting these results in federal court, in state court after certification, or in the U.S. Senate.

Miller always had a difficult task in his argument: he had to convince a court that a voter should be disenfranchised (i.e., the voters vote should not be counted) if it had even a one-letter spelling error in writing in Lisa Murkowski's name. It turns out that such an argument is especially difficult in Alaska. As I've noted in an article written well before this controversy, Alaska has a particularly strong form of what I've termed the "democracy canon," a rule of statutory interpretation that says ambiguous election statutes should be read so as not to disenfranchise voters. In today's opinion, the Court reiterates that strong standard today, and ties it in with the equal protection ideas of protecting the value of the vote that it finds in the U.S. Supreme Court's Bush v. Gore opinion.

Though the constitutional questions were not squarely before the Alaska Supreme Court given the odd procedural posture of the case, the court held that the Alaska procedures for handling write-in votes with minor misspellings did not violate equal protection under Bush v. Gore, and indeed suggests that failing to count ballots with minor misspellings could create a constitutional problem under Bush v. Gore.

Though the court applied its strong version of the democracy canon, it rejected Murkowski's argument that this canon should require counting ballots where voters wrote in Murkowski's name but did not fill in the oval next to the write-in space as required by Alaska law. To the Alaska Supreme Court, this requirement was unequivocal in the statute, and not amenable to statutory interpretation.

The court did not reach some of the issues Miller raised, such as the question of illegal felons voting. The court said these issues would most properly be handled in any post-certification challenge. But the court said that for Miller to win after certification, he'd have to show enough ballots at issue to affect the result, which in the case of felon voting would require showing felon voting in the "tens of thousands."

What can Miller do now? He can go back to federal court, which has held up certification, to argue an equal protection or due process argument. It is hard to see how either argument gains much traction after this case. He could bring a post-certification challenge in state court, though that looks like an uphill battle too. Or he could try to take his case to the Democratically controlled Congress, which would have no incentive to seat Miller over a more cooperative Murkowski.

Posted by Rick Hasen at December 22, 2010 02:13 PM