At the suggestion of a TPM Reader M I took a closer look at this suit filed today on behalf of Senate candidate Joe Miller by longtime Palin lawyer Thomas Van Flein. In addition to citing Bush v. Gore, Van Flein makes an incredibly novel and I would think fairly preposterous argument.
Remember, the essence of Miller’s claim is that the State of Alaska may only accept write-in ballots for Sen. Lisa Murkowski if her name is spelled correctly, letter for letter. The State of Alaska is arguing for a somewhat looser ‘voter intent’ standard for judging the write-in ballots. On principle, I agree with the latter approach, so long as it is carried out on some reasonable standard. But Miller’s approach at least follows a logic we can all understand if not necessarily agree with.
But Miller’s lawyer has another argument. Namely, that ballots with mispellings of Murkowski’s name should be interpreted not as votes for her but rather as protest votes against her.
The suit reads …
the new policy makes no provision for the many voters who cast protest votes. Prior to the election, people commented on radio stations and in the comment sections in blogs and newspaper stories that they would deliberately incorrectly write-in a variation of “Murkowski” as a protest. They did so knowing that Murkowski was spending hundreds of thousands of dollars on a “spelling bee” campaign, replete with wrist bands, pencils and tattoos, all to educate the voters on proper spelling. Why was this done? Because even Murkowski had read the law and knew that it required proper spelling — “No exceptions.” So protest voters were trying to send a message to the candidate. The state has failed to create any guideline or standard that would account for the intent of the voter who intentionally cast a protest vote. To the contrary, the state is indicating that it will now count a protest vote, deliberately cast with a misspelling as a vote for Murkowski. This effectively nullifies the protest and falsely inflates the vote for the write-in candidate. In short, the state has become a super-voter and will override voter intent and recast the votes for the candidate the state chooses. This is at core a fraudulent abuse of the electoral process and severely undermines our democratic process. It makes a mockery of the voting process — allowing voters to believe they cast a protest vote, but then overriding that vote by state fiat.
Josh Marshall is editor and publisher of TalkingPointsMemo.com.