Alaska high court considers disputed Senate race

[December 18, 2010]  ANCHORAGE, Alaska (AP) -- Legal wrangling over Alaska's contested U.S. Senate race reached the state Supreme Court Friday, with justices hearing Republican Joe Miller's appeal of a lower court ruling that amounted to a victory for rival Lisa Murkowski.

Miller is appealing a state judge's decision to toss out his challenge to the handling of the election and counting of write-in ballots for Murkowski, who waged a write-in campaign after losing the GOP primary to Miller.

The state Supreme Court did not immediately rule Friday.

Miller wants the results of the election invalidated, and a recount to ensure what he has called a fair and accurate tally.

He watched Friday as his attorney, Michael Morley, told the court the state should be held to a strict reading of a law that calls for ovals on ballots to be filled in, and for the last name of a candidate or the name as it appears on the declaration of candidacy to be written.

The state, relying on case law, allowed for ballots with misspellings to be counted toward Murkowski's tally and used discretion in determining voter intent.

Murkowski attorney Scott Kendall told the high court Miller is "denying reality" in continuing in his legal challenge. But justices, particularly Daniel Winfree, grilled Kendall about his belief the case is moot, noting that there hasn't been a recount or a re-evaluation of challenged ballots that might add to Miller's tally.

Also at the hearing, Assistant Attorney General Joanne Grace called Miller's reading of the law "absurdly strict," and said the high court should not infer the will of the Legislature in making the law was to disenfranchise voters.

But Morley argued spelling matters: "Requiring correct spelling is not absurd," he said.

Unofficial results of the election showed Murkowski ahead by 10,328 votes, or 2,169 votes when ballots challenged by Miller's campaign were excluded. In tossing Miller's claim last week, state court Judge William Carey said that whatever interpretation he made would not change the outcome of the race, that "Murkowski has won by over 2,000 unchallenged votes."

Miller, in court filings, claimed potentially thousands of additional ballots could be in dispute -- and that these could affect the outcome of the race. He raised concerns about precincts where election workers failed to mark whether they'd gotten identification of voters and ballots with similar-looking signatures. He also raised the specter that felon sex offenders may have been wrongfully allowed to cast ballots.

Carey dismissed the first two claims as unsupported; he didn't address the third. The state has disputed the allegations but Miller's attorneys maintain he did not have adequate time to fully investigate the concerns. They say it's wrong to simply dismiss the allegations.

The court may not have the final say. Miller's spokesman said he will evaluate his legal options each step of the way, including possibly taking the case to the U.S. Supreme Court.

Miller initially filed a complaint in federal court, and U.S. District Judge Ralph Beistline last month blocked the state from certifying the results of the election until the legal issues raised by Miller are resolved. Beistline is willing to take up any outstanding legal issues after the state Supreme Court issues its ruling.

After court, Miller said he thought the hearing went very well and noted what he called "insightful" questions from the justices.

"They recognized that this is not a frivolous case," he said. "This is one that requires some consideration."

Murkowski campaign manager Kevin Sweeney said he heard nothing raised at the hearing would cause him to believe Carey's ruling would be overturned.

"The end goal right now really is getting certification," he said.

The state Division of Elections said officials could certify the race within hours if Beistline lifts his stay.

Murkowski is also appealing Carey's upholding of the state's decision not to count more than 2,000 ballots for her that included some on which the ovals weren't filled in but Murkowski's name was written in, and those in which "Lisa M." was written.

Justice Craig Stowers has recused himself from Miller's appeal because he used to work for the law firm where a Miller attorney works.

[Associated Press; By BECKY BOHRER and RACHEL D'ORO]

Bohrer reported from Juneau, Alaska.

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