Judge clears way for Murkowski's Alaska Senate win

[December 29, 2010]  JUNEAU, Alaska (AP) -- A federal judge on Tuesday dismissed a lawsuit by Republican Joe Miller and lifted a stay on certification of Alaska's U.S. Senate election, clearing the way for Sen. Lisa Murkowski to officially be declared the winner.

The rulings by U.S. District Judge Ralph Beistline mean Alaska state officials will certify the November election results Thursday. That will allow Murkowski to be sworn in when the new term of Congress convenes next week, and make her the first U.S. Senate candidate since 1954 to win with a write-in campaign.

"This is the best possible outcome for us," her campaign manager, Kevin Sweeney, said Tuesday.

Miller, a tea party favorite who defeated Murkowski in Alaska's GOP primary only to be confronted with her more-energetic November write-in campaign, could still appeal. He has said he's willing to go to the U.S. Supreme Court if necessary -- and that one of his main goals is to ensure there's an accurate, fair vote tally. But he also has said he is taking his legal steps one at a time.

He said Tuesday that his legal team believes their claims are supported by precedent and the "clear language of the Election Clause" of the U.S. Constitution. He said they are reviewing Beistline's decision and determining the next step.

Beistline had been expected to lift his stay on certifying the election this week, but his decision to toss out Miller's claims -- a day after Miller filed them -- was more surprising.

Miller initially sued in federal court but Beistline determined the state courts were in a better position, at least initially, to decide who had won. Beistline barred the state from certifying results until Miller's claims had been addressed, and he allowed Miller to argue any outstanding federal issues before him after the state Supreme Court ruling.

Last week, the high court refused to overturn results favoring Murkowski and said it found no remaining issues raised by Miller that should prevent the race from being certified.

In federal court filings Monday, Miller argued that state officials had violated provisions of the U.S. Constitution in their handling of the election and write-in ballots for Murkowski.

But Beistline said Tuesday that claims made by Miller either didn't rise to constitutional violations or didn't merit him second-guessing the high court's determinations.

He said that generally speaking, the state Supreme Court "is the final expositor of Alaska law. That must be the case here."

Official results released by the Division of Elections on Tuesday showed Murkowski with 101,091 votes and Miller with 90,839; Miller received 21 write-in votes. These numbers are different from the unofficial figures released after the last ballots were tallied last month; Murkowski gained three votes and Miller, a few dozen.

It wasn't immediately clear if his tally included his write-ins. When asked to explain the discrepancy, Division Director Gail Fenumiai said the earlier numbers were unofficial: "These are the official results from the state review board."

"The state review board looks at every precinct," Fenumiai said. "They review precinct registers, count any uncounted ballots, verify hand tallies are correct."

Miller wanted the state held to a strict reading of the law, which calls for write-in ballots to have the ovals filled and either the candidate's last name or name as it appears on the declaration of candidacy written. Ballots with misspellings, extra words or letters, even stray marks, his team argued, should not count.

Miller sought to have the results of the election invalidated and to get a recount.

The state, pointing to case law, used discretion in determining voter intent and allowed for ballots with misspellings to be counted toward Murkowski's tally. The high court determined voter intent is "paramount."

Beistline said Miller's technical arguments shouldn't be read as "frivolous, for it's easy to understand his view" on the reading of the law. But he said it's just as easy to accept the state Supreme Court's reading.

"What we have before us is a poorly drafted state statute," he wrote.

Beistline also said he could not find the methods used by the state in counting write-in ballots to be "unreasonable."

"The very nature of a 'write-in' vote presupposes a requirement that someone will have to read the handwriting and determine for whom the vote was cast," he wrote.

[Associated Press; By BECKY BOHRER]

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