AK Supreme Court Hears Arguments in Miller Election Case

The Alaska Supreme Court yesterday heard arguments in US Senate candidate Joe Miller's vote count case, as reported by the Anchorage Daily News (ADN) and his campaign. Miller has two attorneys representing him: Thomas Van Flein for matters of Alaska law and Michael Morley for matters of federal law. The Alaska Supreme Court is the final stop in the state legal journey for this case. Miller is seeking a hand re-count of all ballots cast and to apply a strict interpretation of the state's election law, which would require correct spelling. The state used "voter intent," which the Alaska Superior Court (the trial court) upheld.

"The [Alaska Supreme] Court appeared particularly concerned about the fact that the trial court granted the State summary judgment on Miller's claims, without even giving him a chance to seek discovery or gather evidence in support of them," Miller's campaign said in a press release about the hearing.

The Supreme Court of Alaska heard oral arguments today in Miller v. Treadwell. Appellate and election-law attorney Michael T. Morley argued for Joe Miller, the Republican nominee for U.S. Senate. Morley explained that the Alaska legislature established a clear, bright-line test for determining the validity of write-in ballots, to prevent bureaucrats and state officials from being able to affect the outcome of elections by deciding for themselves which ballots to count. He further argued that state law does not permit the Division of Elections to discriminate in favor of write-in ballots by allowing Division personnel to review thousands of write-in ballots that automated tally machines had rejected as invalid, while not doing the same for ballots cast for candidates who appeared on the ballot, such as Miller.

"The tenor of the Court's questions shows that it believes we have raised substantial legal questions." Miller commented. "All we are asking the Court is to apply the plain text of Alaska law as written."

During the argument, Morley pointed out that the whole point of requiring write-in ballots to be spelled correctly is to prevent election officials from being able to decide for themselves which ones should be counted. "The legislature's 'correct spelling' standard prevents thousands of ballot-by-ballot skirmishes over whether particular spellings are 'close enough' to be counted."

The Court appeared particularly concerned about the fact that the trial court granted the State summary judgment on Miller's claims, without even giving him a chance to seek discovery or gather evidence in support of them. "We presented numerous questions of fact to the trial court. According to official state records, thousands of people were permitted to vote without showing identification. Further, the handwriting on all the write-in ballots from several precincts was the same, or appeared to be written by only a few people." Campaign spokesman Randy DeSoto added, "An initial review by our campaign revealed that several hundred convicted sex offenders voted, and we are concerned that this may indicate a wider problem with many hundreds or even thousands who voted who were ineligible to do so. The State wants the Court to allow it to ignore this troubling evidence, turn a blind eye, and simply hope everything was fine with the election, instead of allowing us to investigate these problems and give the public some degree of assurance that the election was conducted legally and fairly."

###