November 09, 2010

Joe Miller Files Federal Complaint Over Plan to Deal with Write-In Ballots in U.S. Senate Race

Earlier today the Alaska Division of Elections announced rules for segregating and counting write-in votes that may be credited for Murkowski. Soon thereafter, Joe Miller filed suit in federal court. The suit claims that the rules violate the U.S. Constitution's Elections Clause (giving the state legislature, not state elections officials, the power to choose the rules for counting ballots in Congressional elections, the U.S. Constitution's Equal Protection Clause (by ostensibly failing to adopt uniform standards for judging voter intent under Bush v. Gore), and various state law claims. You can read the complaint and motion for a preliminary injunction. (Thanks to a reader for sending both of these along.)

As I've explain in earlier postings, the issues raised by the Alaska write-in situation raise important questions of both statutory interpretation and constitutional law. Given the analysis I've offered in this article, I was quite surprised to see that Miller's complaint does not include a due process claim, arguing that his rights were violated by a change of the rules in the middle of the election. (That claim is there, but it is not framed as a separate due process claim. That may be the strongest claim he could make.)

Posted by Rick Hasen at November 9, 2010 08:48 PM