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.
Miller’s argument begins with the Alaska statute providing that write-in votes “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.” The statute further provides that the rules are “mandatory and there are no exceptions to them. A ballot may not be counted unless marked in compliance with these rules.”
Miller wants election officials to count only those ballots for Murkowski in which the oval is properly filled in and her name is properly spelled. How strong are his arguments? Whether the statute requires proper spelling is a difficult question of statutory interpretation. The reason that Alaska election officials said it did not, and instead adopted the looser standard of “voter intent,” which allows for misspellings, is the Alaska Supreme Court’s long-standing use of a rule of interpretation which reads ambiguous statutes in favor of the voters. (I’ve dubbed this rule the Democracy Canon.) In this case, throwing out minor misspellings would disenfranchise voters for a technicality. I’ve traced use of the voter intent standard in state courts back to 1885, and Alaska has a particularly strong version of it. The state’s courts say that election statutes must be read in favor of allowing votes to be counted unless the legislature has made it unmistakably clear not to read a law this way.
Miller also makes two federal constitutional arguments. Both directly descend from Bush v. Gore. First, Miller argues that the plan for counting the Murkowski write-ins amounts to a new rule, and so it must come from the legislature, not election officials. The Elections Clause of the Constitution gives each state legislature the power to choose the rules for picking members of Congress (unless Congress overrides a state’s choice). This argument is just like the ones that Republicans made when they argued that the Florida Supreme Court had usurped the power of the Florida legislature when it set the rules for counting the votes in the 2000 presidential election. In Bush v. Gore, only three justices (Rehnquist, Scalia, and Thomas) bought that argument. If it was accepted in the Alaska case, this idea would have profound implications, because it would mean that election officials could never come up with regulations to implement the legislature’s rules for congressional elections. So I don’t expect this argument to go far.
Miller’s other Bush v. Gore argument is that counting misspelled ballots based on voter intent will violate the Constitution’s Equal Protection Clause by treating similarly situated ballots differently. In Bush v.Gore, a majority found an equal protection violation when different election officials tried to implement the Florida Supreme Court’s standard for judging punch card ballots (remember hanging chads?). But in Alaska, it appears that one person, the director of elections, will judge all the contested ballots, which minimizes the risk of inconsistency. So I don’t expect this argument to go far, either.
Miller, however, may have a stronger federal constitutional argument which he has not yet raised: As a matter of fairness, the rules for running an election should not be changed mid-stream. To do so not only upsets expectations; it also reeks of lawlessness and raises the possibility of manipulation by the people making the rules up as they go along. Changing the rules for counting write-ins could violate due process protections against arbitrary and disparate treatment by the government. So the question now in Alaska is whether the rules for counting the misspelled ballots actually differ from the handling of write-ins in the past, or are simply reasonable ways of implementing the existing statute. It’s in line with Alaska’s election law history for election officials to count some misspelled ballots for Murkowski. Her tricky last name won’t be the reason she loses this election. As it shouldn’t be.
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