Alaska judge throws out Joe Miller's lawsuit

[December 11, 2010]  JUNEAU, Alaska (AP) -- A judge has all but ended tea party-backed Republican Joe Miller's hopes of getting legal relief in state court in his long-shot challenge of how the state counted write-in votes for incumbent Lisa Murkowski in their Senate race.

Miller has until Tuesday to appeal to the Alaska Supreme Court Friday's decision by Judge William Carey to throw out Miller's lawsuit. Carey cited past decisions by the high court in his ruling, which takes effect Tuesday.

"Nowhere does Miller provide facts showing a genuine issue of fraud or election official malfeasance," the judge wrote. "Instead, the majority of the problematic statements included in the affidavits are inadmissible hearsay, speculation and occasional complaints of sarcasm expressed by DOE (Division of Elections) workers."

Miller spokesman Randy DeSoto said Miller was mulling an appeal and there were still outstanding issues "in terms of wanting to get a true and accurate count, and we don't feel like we're there yet."

Murkowski called on Miller to concede.

"It's time to end this. It's time to say that the election is over," she told The Associated Press.

The ruling marks a victory for Murkowski, who sought to become the first U.S. Senate candidate since 1954 to win as a write-in. Senators are scheduled to be sworn in Jan. 5, and the legal dispute has thrown into doubt whether someone from this race will be included.

Murkowski's attorneys have argued that her seniority is at risk if she isn't sworn in then.

Miller's attorneys had asked Carey to strictly enforce a state law calling for write-in ballots to have the oval filled in, and either the candidate's last name or the name as it appears on the declaration of candidacy written in.

Miller argued the state shouldn't have used discretion in determining voter intent when tallying ballots for Murkowski. The state relied on case law in doing so and allowed for ballots with misspellings to be counted toward Murkowski's total.

"If the legislature intended that the candidate's name be spelled perfectly in order to count," Carey wrote in his much anticipated ruling, "then the statute would have included such a restrictive requirement."

Unofficial results showed Murkowski ahead by 10,328 votes and still in the lead by 2,169 votes even when excluding votes challenged by Miller's campaign. Carey said whatever interpretation he made would not change the outcome of the race, that "Murkowski has won by over 2,000 unchallenged votes."

Murkowski ran an unprecedented write-in campaign after losing the GOP primary to Miller. She focused heavily on educating voters on how to cast a write-in ballot for her, and she emerged with a wide lead after a tedious, weeklong count of ballots that was overseen by observers for both Miller and Murkowski.

Miller last month said he'd stop fighting if the ballot math didn't work in his favor. But he has since insisted that his fight was a matter of principle to ensure the law is upheld and Alaskans got a fair election.

Murkowski's campaign accused Miller of seeking to disenfranchise thousands of Alaska voters, and Murkowski said Carey's ruling delivered a "stinging rebuke" to his claims.

"When a court finds no merit in any of the arguments he's presented, that's really quite stunning," she said.

State officials and Murkowski's campaign have sought a speedy resolution, saying Alaska would be deprived of representation if a winner isn't sworn in with the new Congress next month.

On Friday, state officials told a federal judge they would seek to have the stay he imposed on certification of the race lifted if Miller lost the state court case and did not file a speedy appeal to the Alaska Supreme Court.

U.S. District Judge Ralph Beistline last month kicked the case to state court and issued the stay to allow for the issues raised by Miller to be resolved.

[Associated Press; By BECKY BOHRER]

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