Joe Miller Sues to Prevent ‘Intent’ Interpretation

Joe Miller is suing to ensure that only write-in votes that correctly spell "Lisa Murkowski" count rather than allowing voting officials to guess at voter intent.

Joe Miller is suing to ensure that only write-in votes that correctly spell “Lisa Murkowski” count rather than allowing voting officials to guess at voter intent.

Votes that misspell Lisa Murkowski’s name shouldn’t count as the state today tallies write-in ballots in the U.S. Senate race, Senate candidate Joe Miller said in a federal lawsuit Tuesday. Miller is asking a judge to stop the state from making a judgment on a voter’s intentions if the voter wrote in something other than “Murkowski” or “Lisa Murkowski.” State law allows no leeway for other spellings, his lawsuit says.

[…]

The Murkowski campaign reacted to Tuesday’s lawsuit by accusing Miller of trying to toss out legitimate votes for the eight-year incumbent. “They’re trying to discount as many votes as possible from Alaskans,” Murkowski campaign manager Kevin Sweeney said.

[…]

Lt. Gov. Craig Campbell, who oversees Alaska elections, has indicated that he will accept minor misspellings of Murkowski’s name as long as the “voter intent” is clear. “The courts have been very clear for the last 25 years that voter intent is important,” Campbell said in an interview this week with KENI radio host Mike Porcaro. “You do not want to disenfranchise voters over a technicality.”

But Van Flein, Miller’s lawyer, is arguing that nothing in state law allows for that kind of discretion. “The statute does not allow for the election board to weigh ‘voter intent,’ ‘voter feelings,’ or ‘voter hopes,’ ” Van Flein wrote in a letter to Fenumiai.

Here’s what the law says: “A vote for a write-in candidate, other than a write-in vote for governor and lieutenant governor, shall be counted if the oval is filled in for that candidate and if the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided.”

Miller’s lawsuit argues the state waited until this week — “the eleventh hour” — to release a written policy saying it would weigh voter intent in the counting process.

While they may have waited to issue a written declaration, they’ve made it clear from almost the moment Murkowski announced her write-in bid.

But, while I’m not a lawyer, the law as written does seem to require the correct spelling.  The question is whether judicial rulings binding on Alaska require voter intent to be considered.

Aside from the legalities, I’m rather torn on the matter.  On the one hand, voter intent should be respected.  There’s only one significant write-in candidate in the race and her name is distinctive.  So, for example, “LISA MURKOWSKY” or “LISA MURCOWSKI” are rather clearly votes for Lisa Murkowski and should count.   On the other hand, allowing voting officials to exercise discretion invites foul play and can undermine the legitimacy of the process, especially in a very close race.  And, frankly, voters should be informed enough to know how the name of the person they’re sending to spend six years as 1/100th of the United States Senate is spelled.

My guess is that the issue will be moot because there will be enough correctly spelled votes for Murkowski to make her the winner outright.  She engaged in a long write-in campaign and spent a lot of money (which, incidentally, was donated to her by Republicans and then absconded with) doing things like handing out bracelets with her name on it for voters to wear into the booth.  And state officials handed out sheets with her name on it, too.   There’s really no excuse for not properly spelling her name under these circumstances and people who took the time and trouble to show up at the polls and bother to write in someone’s name are likely to have availed themselves on some device to help them remember.

FILED UNDER: Campaign 2010, Law and the Courts, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. just me says:

    I admit I am not clear on how all the legalities shake out, but would argue that it is fair to take any phonetic, but incorrect spelling as an intent to vote. Names aren’t always easy, and there are still several names in political circles I spell wrong.

  2. James Joyner says:

    I tend to agree. I’m not sure where you draw the line and it might vary from race to race. If someone named Bob Jones were making a run and the voter wrote in “Joans” or some such, I’m not sure that should count. But Murkowski is such a distinctive name that it’s hard to argue that there’s any confusion if someone writes “Mercowsky.”

  3. PD Shaw says:

    One would almost assume the ruling allowing her name to be handed to voters was premised on the importance of proper spelling.

  4. James Joyner says:

    PD: Yes.

  5. MarkedMan says:

    Most states try to honor voter intent when casting ballots. So, for example, in most states that use a pen or pencil to mark and oval, if the machine fails to register a vote but an examination shows only one oval was filled in for that race and perhaps it wasn’t dark enough or complete enough, during a recount in a closely contested race the voter intent rule is invoked and it is counted. It should be noted that this is expressly forbidden in Florida. It doesn’t matter how clear a voters intent was, if there is any technicality that can disqualify the vote, that technicality must be invoked. For example, during the Bush/Gore election, a large part (all?) of the state used a paper punch voting method. It was possible to push the given utensil through the paper but have a little corner fail to tear off, but with the punch folded out of the way, this wouldn’t be visible to the voter. (Aka “hanging chad”. This isn’t speculation on my part, I actually used one of the machines which was later purchased at auction.) In Florida, this vote was thrown in the trash. Because the Gore campaign didn’t arbitrarily challenge all pro-push counties, this standard was predominantely applied in pro-Gore counties. When Gore tried to challenge this and other inequities in the count to the state supreme court, the Federal Supreme Court intervened for the first time in our countries history and ruled that these inequities couldn’t be redressed. And thus we had the Iraq war and Abu Ghraib and Guantanamo. Just a little history there.

  6. john personna says:

    You may recall that I joke here, “at least Murkowski is hard to spell.”

    Sad.

  7. PD Shaw says:

    Yes, Murkowski petioned for the write-in list because she wanted to help people vote for write-in candidates that have English as a second language or are less literate. She accused her opponent of wanting to encourage misspellings so that he can challenge misspelled or incomplete names “even though the voter’s intent might be clear.” Her attorneys don’t necessarily concede that this would be a correct outcome though.

    http://lisamurkowski.com/PDF/Committee's%20Notice%20of%20Joinder%20re%20Motion%20and%20Petition.pdf

    The Alaska Supreme Court ruled that assisting with spelling is a proper function under the statute.

    http://lisamurkowski.com/PDF/Committee's%20Notice%20of%20Joinder%20re%20Motion%20and%20Petition.pdf

  8. JKB says:

    Oh, if only Chad Murkowski had run instead of Lisa. Now that would be funny.

    This is even more foolish given that “Murkowski” isn’t some name that came out of left field. If people went to the trouble to even know to write-in her name, they surely knew her name and had seen her last name for decades on ballots and in the newspaper. What if people wrote in “self-serving entitled elitist” would that count as intent?

  9. TG Chicago says:

    “If someone named Bob Jones were making a run and the voter wrote in “Joans” or some such, I’m not sure that should count.”

    Why not?

    If Miller wants to talk about rulings being released late, what about the fact that I never heard a peep from his side about this spelling stuff until after the election? Plenty of people were talking about the whole spelling issue, but I don’t recall that his side was demanding perfect spelling before the votes were cast.

  10. narciso says:

    They have been the First Family in Alaska, going on thirty years now, how hard can it be

  11. Franklin says:

    “If someone named Bob Jones were making a run and the voter wrote in “Joans” or some such, I’m not sure that should count.”

    Why not?

    I think it depends on the other names on the ballot. If there was a race between “Bob Jones” and “John Doe”, a write-in for “Joans” isn’t clear.

    Anyway, I agree with the above – the law appears to say one thing (it must be spelled right), but I personally think it should be another way (voter intent).

  12. MarkedMan says:

    As I native Chicagoan, I ask myself: ‘How would this have been handled there’? Simple: recruit Linda Murkulski, Leon Moscowski and if at all possible, another Lisa Murkowski, and have them stage write in campaigns.

  13. MichaelB says:

    I’m always opposed to inquiring into what the voters intent is. A simple rule (and I don’t especially care what it is) that isn’t open to interpretation is much better, because although it’s arbitrary, it’s arbitrary in advance. “This is what you have to do, otherwise you ballot is considered spoiled”.

    The alternative, inquiring into what the ballot shows about the voters intent is arbitrary after the fact. We get election officials who have to make calls, lawyers and judges groping around for the right way to do it – and everyone doing it in the context of a stack of ballots we’ve already looked at. That seems to me to be a great recipe for undermining the fairness, and certainly the perception of fairness, of the outcome.

  14. TG Chicago says:

    “I think it depends on the other names on the ballot. If there was a race between “Bob Jones” and “John Doe”, a write-in for “Joans” isn’t clear.”

    Fair enough. I was figuring the hypothetical voter wrote “Bob Joans”, but you make a valid point.

  15. MarkedMan says:

    MichaelB, although your point sounds fair, what about the case of the oval which simply wasn’t dark enough? You have no way of knowing you didn’t darken it enough before you drop it in the ballot box. Or the hanging chad? The point of the hanging chad was the voter couldn’t see they were hanging, and to be frank, probably wouldn’t have scanned election code beforehand and decided that the secretary of state would later decide this constitutes an invalid vote. Because after all, they couldn’t get inside the ballot box to pull the chad out anyway. What you are asking for is that if a candidate can think of some cockamamie reason why this vote isn’t technically valid, then the intent of the voter doesn’t matter.

    The way this works in practice is a Democrat and a Republican sit side by side and any questionable ballot iss reviewed by both of them and if they feel it was obvious what was meant, the vote counts that way; if they felt there was clearly no way to know, it was not counted, and if they disagreed it went up to the next level.

    Of course this method would break down were one side to take the position that all its poll workers would try to bias the results in favor of their candidate. And we are a poorer country when that happens and responsible leaders should try to insure the fairness of the election, not the outcome.

  16. MichaelB says:

    I’ve only voted in Canada, but there the system is pretty straightforward to resolve this problem. In the voting booth, there’s a chart. It shows a couple ways to mark your ballot correctly, a bunch that are incorrect, and says that anything else is incorrect. Basically mark an X or a check mark in the circle next to the candidate you want to vote for. Otherwise your ballot is spoiled. Even if you write “I want to vote for Lisa Murkowski”.

    This makes it easy to tell whether the ballot is correct or not – there’s not much to argue about. Does it look like any of the correct marks? If yes, count it. If no, count it as spoiled. Since the standard is objective and fairly simple, it’s tough to manipulate because efforts to do so are transparent.

    The same thing could be done with the fill-in-the-circle ballots, though i guess the punch machine ballots might be harder. The point is to have a clear standard that is hopefully tough to manipulate and doesn’t leave much in the way of middle ground. If you can do that, it’s tough for either of those two representatives reviewing the votes to do much in the way of manipulation.

  17. Janis Gore says:

    I stand for the hundreds of people whose votes could be discounted under black letter law because they are frequently embarassed, um, embarrased, oh, yeah, embarrassed by mind blanks in spelling some words.

  18. ponce says:

    Funny how these wingnut candidates show their true colors under pressure.

    What terrible human beings they are.

  19. MarkedMan says:

    MichaelB
    I agree with you on examples you gave, and the general idea that we should strive to make the ballot as simple as possible to mark clearly. I suspect you would agree with me that cases in which the voter cannot know whether they’ve done this correctly or not (hanging chad, circles not filled in darkly enough to trigger an electronic sensor but easily visible to the human eye, etc). But I think you are overestimating the ease of crafting easily understood rules that can be posted and quickly understood in a voting booth. If you have (like 37 states) an “intent of the voter” provision, it makes it more difficult to take away an otherwise legitimate vote.

    For example: in Florida there were some pretty complicated ballots with lots of referendum, many offices up at the same time, fairly small type and a machine such that it wasn’t always easy to be certain that you were lined up correctly. So some people selected Al Gore, and then also wrote his name on the write in line to try to make sure there was no doubt. The secretary of state, who was also chair of one of the state Bush election campaigns, interpreted the rule “If more than one candidate is selected the ballot shall be ruled invalid” (not the exact words) and said that counted as two selections. The Gore campaign said it didn’t count as two, since it was for the same person. They wanted it decided by an impartial court rather than the head of their opponents election campaign. But the federal supreme court ruled it could not go before a court and that the Bush campaign chairs decision was final.

    This would have been much harder to pull off if the voter intent clause was in there. Rather than rule the ballot broke some rule subject to interpretation, the official would have had to claim the voter intent was uncertain and the federal supreme court would have had to stamp approval on that. Possible, but a lot less likely and certainly the outrage would have been overwhelming.

  20. anjin-san says:

    Clearly it has been Miller’s intention both before the election and after to hinder Alaska’s voters from having the best chance to vote for the candidate of their choice, and to prevent Murkowsk from having a fair shake in the election.

    Easy to see why Palin likes this guy.

  21. jwest says:

    “Funny how these wingnut candidates show their true colors under pressure.”

    Exactly.

    These “wingnut candidates” are insisting that Alaska follow the law, as written, for this election. Any ballot that does not contain the candidate’s name as it appears in the filing should not be counted.

    This is the difference between conservatives and liberals. We conservatives follow the law. Conservatives play by the rules. If the law needs changing, it is done after the contest in question and applies to the next election, so that everyone knows the rules from the start. Liberals, on the other hand, make it up as they go along, using “outcome-based” ethics to guide them.

    Write-in candidacy is intentionally difficult in order to avoid these exact circumstances. In lieu of sore loser laws that would prevent a candidate defeated in the primary from running as a write-in, strict adherence to the crystal clear provisions of the Alaska election law form a high hurdle that most would avoid.

    Pick the world you want to live in. One where everyone plays by the same rules or one in which the people in power adjust the rules to suit themselves and their interests.

  22. tom p says:

    “Clearly it has been Miller’s intention both before the election and after to hinder Alaska’s voters from having the best chance to vote for the candidate of their choice, and to prevent Murkowsk from having a fair shake in the election.”

    I have to point out Anjin, she already had a fair shake in an election… and lost. Now she wants a second bite at the apple.

    Is that “fair’? It might be legal, but is it “fair”?

    Personally, I have no sympathy for sore losers like her.

  23. The Q says:

    Is literacy a requirement for voting? How about intelligence? Spelling ability?

    What about folks with dyslexia?

  24. The Q says:

    “We conservatives follow the law. Conservatives play by the rules.”

    Perhaps you meant, “Yeah, the laws we arbitrarily make up and the rules we decide to interpret to our benefit.”

    Because “We conservatives follow the law and play by the rules”, the Republican party
    has decided to arrest and turn over to the World Court Messrs. Cheney and Bush to the
    War Crime tribunal so that they can stand trial.

    Oh, I forgot, conservatives don’t believe that the Geneva convention rules and int’l law don’t apply to them right?

    Jwest, grow up.

  25. anjin-san says:

    > I have to point out Anjin, she already had a fair shake in an election… and lost.

    You do know that there is a difference between a primary and a general, don’t you?

  26. sam says:

    From Dave Weigel

    Chip Thoma, observing for the Alaska Democratic Party, tells me that around 98 percent of the write-in ballots cast appear to be for Lisa Murkowski. Roughly 10 percent of those are being challenged by the Miller campaign on spelling grounds. But Thoma said the Division of Elections is overruling 90 percent of those challenges. The Miller campaign than re-challenges. Those ballots will get another review, with the final say going to the certification board (or the courts.)

    Among the votes being challenged: Votes for “Lisa, Murkowski” and “Lisa Mercowski.” So it’s getting to be clear that more Alaskans wanted to vote for Murkowski than vote for Miller, and his job is nixing the votes of the people who made mistakes along the way.

  27. tom p says:

    “You do know that there is a difference between a primary and a general, don’t you?”

    Yes Anjin, I do. But here is a question for you:

    If she wasn’t going to abide by the will of the GOP electorate, why did she run in their primary?

    She lost, fair and square, and we can say the same for Lieberman in ’08. Those types disgust me. If you are a Dem/GOP, be a Dem/GOP and respect the will of “your” party.

    (your is in quotes because it is quite obvious to me that their loyalty goes only as far as “What have you done for me lately?”)

  28. MarkedMan says:

    tom p you seem to be saying that party loyalty is all that matters. How about doing what’s best for the state? I’m no fan of Murkowski and as a someone who recently moved to CT I am looking forward to voting against Lieberman in two years, but I can think of cases where the honorable thing to do would be to oppose the candidate of your affiliated party.

  29. tom p says:

    OK, I hate computers, I will try again..

    “tom p you seem to be saying that party loyalty is all that matters. ”

    MM: au contraire… I am saying if you are not going to abide by the parties will, why ask for their opinion? Much less take their money?

    “How about doing what’s best for the state?”

    You know what is best for the state of Misery??? Voting for me. Unfortunately I only got 3 votes. Should I then go out and shoot Roy Blunt? NOOOO!!! Elections mean something…. at least until recently.

    PS: I am seriously jealous, I would give my left nut to vote against JL.

  30. Nightrider says:

    The law doesn’t say it has to be spelled correctly. Yes, it says “as it appears” on the write-in list. But a judge need not take that to mean that to count, the voter must have printed in exactly the same size and font, and exactly the correct spacing between characters, and that there could be no cursive, no large print, no all caps, no deviation at all. Once you have broken thru that barrier, close approximation of spelling doesn’t seem much different.