November 11, 2010

"Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?"

Slate has just published my latest Jurisprudence column. It begins:

    Since the 2000 Florida debacle of Bush v. Gore, in which the United States Supreme Court decided the fate of the presidency after a razor-thin vote difference between George W. Bush and Al Gore, candidates in close election contests have lawyered up. Rates of election litigation have more than doubled in the last decade. The big election contest in 2008 was the U.S. Senate race between Al Franken and Norm Coleman that took months to resolve. This time around, the Minnesota governor's race is going to a recount, an election for Supreme Court justice in Washington State may do the same, and eight Congressional races remain too close to call.

    The U.S. Senate race in Alaska is the most riveting squeaker of the season. So far, "write-in" leads Republican Joe Miller by more than 10,000 votes. Alaskan officials started counting those ballots last week; it's no surprise that most appear to be intended for Lisa Murkowski, who lost the Republican primary to Miller. But not everyone spelled Murkowski's name right, and Miller has now sued in federal court to block the rules being used for counting the misspelled ballots. The fight illustrates a tension in resolving close elections between deferring to the voters' apparent preference and sticking to clear rules--established ahead of time--so that election officials or judges can't manipulate the process to favor a particular candidate. Miller's lawsuit probably won't succeed, but it has a secondary purpose: ensuring that the counting is aboveboard.

Posted by Rick Hasen at November 11, 2010 03:12 PM