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Alaska's Joe Miller loses again, this time in state Supreme Court

Jill Burke

1220-joe-miller-hearing
Read the Alaska Supreme Court's ruling: Miller v Treadwell Decision

Five days after taking Joe Miller's election complaints under advisement, the Alaska Supreme Court has ruled unanimously against the failed U.S. Senate hopeful on every count in his lawsuit.

"We affirm the decision of the Superior Court in all respects," the justices wrote in an order handed down early Wednesday afternoon. "There are no remaining issues raised by Miller that prevent this election from being certified."

In a prepared statement, Miller called the decision disappointing, accused the judges of ignoring the "plain text of Alaska law," and said his campaign was reviewing the ruling and "weighing" its options.

In the winner's circle, it was a different story. We're "elated," said Kevin Sweeney, incumbent Sen. Lisa Murkowski's campaign manger, in a prepared statement.

“We anticipated today’s decision by the Supreme Court," Sweeney said. “We also anticipate that Joe will  continue to pursue his baseless claims in federal court until his money runs out."

The ruling eliminates all but one possible obstacle to certifying Murkowski as the winner of the Nov. 2 election.

Murkowski, who ran as a write-in candidate, beat Miller by more than 10,000 votes in the general election -- a stunning win in the face of what many considered a nearly impossible quest to keep her seat. After her loss to Miller in the primary, a write-in campaign became the only way for Murkowski to stay in the race.

Because state courts aren't the only legal arena Miller has pursued for relief, certification can't occur until a federal court first gives the OK. Miller also lodged a complaint in federal court. In that case -- the first filed by Miller -- U.S. District Court Judge Ralph Beistline put a mandatory hold on certification of the race's results pending review by the lower courts. Last week Beistline signaled his willingness to lift that order once a ruling from the Alaska Supreme Court came in.

If Miller decides to keep up the fight, nothing prevents him from waging ongoing challenges after Murkowski is validated by the state as the election winner and sent back to Washington, D.C., Beistline noted.

The state of Alaska and Murkowski's attorneys have asked judges at all levels to move swiftly so that the election can be certified by the first week in January, in time for Murkowski to be sworn into office and seated when the next session of Congress convenes on Jan. 5. It's possible that certification could happen even sooner.

Miller has until 9 a.m. Monday to appeal the Supreme Court's decision, per a schedule issued late Wednesday by Beistline. The state's reply to any claims Miller may make is due two days later on Dec. 29. Beistline will then take the issue of certification and any remaining legal issues under advisement. During a press conference Wednesday, Lt. Gov. Mead Treadwell, who functions as the overseer of elections, said the senate race's  "double overtime" is over. He expected certification to take place sometime between Christmas and the New Year.

Miller believes elections officials wrongfully used "voter intent" as a guideline when choosing whether to allow write-in ballots with misspellings and other imperfections to count. He believes that the Division of Elections did not give adequate notice about its time frame to conduct the count. He claims the hand review that write-in ballots undergo gives write-in candidates an unfair advantage. He has also alleged other improprieties, including the mishandling of ballots, poorly kept records about whether voters had been properly identified, and the possibility felons were allowed to vote.

His legal jousting isn't about who wins or loses, he has often said since challenging several aspects of the election, claiming instead that it is about the "integrity" of the process.

But the justices of the high court reasoned what Miller is asking for would do just the opposite.

"Miller's interpretation of the statute would erode the integrity of the election system," they wrote of Miller's desire to require a perfect standard of spelling and form. "It would result in the disenfranchisement of some voters and ultimately rejection of the election results that constitute the will of the people."

Had Miller won on this point, Murkowski would have lost more than 8,000 votes, the lion's share of her more than 10,000 vote lead, but still not enough for Miller to close the election gap.

The "right to vote is key to participatory democracy," the justices continued in their decision, noting there is a long history of courts upholding voter intent even in the face of mistakes.

The justices were also critical of Miller's legal strategy. State law allows for two types of election challenges. These are known as election contests or recount appeal. Although aspects of Miller's complaints fall into both categories, he didn't directly pursue either option and instead went first to federal court, and in later pursuing his claims in state court did not formally invoke either option. An election contest requires proof of fraud, misconduct or corruption severe enough to change the outcome, while election appeals deal with the fair and accurate counting of ballots.

"Miller cannot avoid the avenues established by the legislature to challenge elections," the justices wrote in denying one of Miller's complaints.

They also referred to Miller's allegations of possible vote tampering and voter fraud - based on ballots with similar-looking handwriting -- as "pure speculation" and a "fishing expedition." Under state law, voters are entitled to whatever level of assistance they request in casting their vote, including having someone write the name for them.

Will Miller fight on?

Just how far Miller is willing to take his fight remains unclear. He has in the past indicated a willingness to push the case all the way to the U.S. Supreme Court if necessary, although last week he told reporters he, his legal team and campaign advisors would closely review the Alaska Supreme Court's ruling before making any decisions.

Miller also has the option of asking the U.S. Senate itself to look into the issues he's raised. Complaints from unsuccessful challengers are infrequent and have only rarely resulted in the body ousting one of its members.

In the last 50 years, the Senate has investigated election outcomes only four times, and in each case the seated senator prevailed. The 2008 race between Minnesotans Al Franken and Norm Coleman was hotly contested, but the Senate itself wasn't involved. Instead the Minnesota seat remained vacant until the appeal courts ruled in Franken's favor more than six months after the term began. Coleman is among those who have this year suggested Miller give up.

Only once in the last 60 years has an unhappy candidate for U.S. Senate pushed a case all the way to the U.S. Supreme Court. In a 1970 race, Indiana Republican Richard Roudebush sought a recount of his loss to Democrat Vance Hartke. Although the Supreme Court granted Roudebush the right to a recount, he only narrowed the gap by 48 votes and the election outcome was unchanged.

Contact Jill Burke at jill(at)alaskadispatch.com