Tuesday, December 28, 2010

In Alaska, they have the basis for a reality show

Lisa Murkowski, the Republican primary loser in the Alaskan Senate race, decided she wanted to run as a write-in candidate in the general election. Joe Miller, the Republican winner in the primary thought he would only be running against the Democrat. Murkowski won the election as an independent write-in against both the Republican and the Democrat.

Miller is a poor loser. Almost more than two months out, he is still contesting the election. After working his way through the state courts and the state supreme court, Miller is taking his case to federal court. His issue is that he wouldn’t have lost by as many voters in the general election if it weren’t for the state election commission’s decision to count a vote on the write-in portion of the ballet if the voters intention was clear. The state courts gave Murkowski a win with 10,328 votes including the contested ballets. But, Miller says Murkowski won by only 2,169 votes.

Are you confused? Murkowski still wins if Miller wins in Federal Court? There is an important issue here, but Miller isn’t telling the whole truth.

Without being in Miller’s head, it sounds like Miller wants to cut the lead so he can ask for another recount. With only 2,169 votes to overcome, it is possible that he could turn the election around and take the Senate seat away from Murkowski.

But, to the rest of us, there is an even bigger issue here. The Alaskan Election Commission decided before counting the contested ballets, that as long as long as it was clear who the voter intended to vote for, they would count the vote. After reviewing the circumstances, the state courts, including the state supreme court, ruled in favor of the Alaskan Election Commission. This sounds like the hanging “chad” problem from the Bush-Gore election. In that election, voters needed to punch out a hole to cast their vote for a candidate. Some of the “chads” from the punch out were left hanging, so those votes were in question. In this election, the commission decided that even if the name of Murkowski or any other write-in candidate was misspelled, if it looked like one of the names, they would count it.

Mercowski, Murcoowski, Mercowsomething, Mcowskyed and perhaps many other spellings would be accepted by the election commission in Alaska as being for Murkowski. Miller’s beef is that the commission made up a new law with the “as long as it was clear” rule. He says the commission not only over stepped its bounds as defined by law, but didn’t even open up for public comment on the ruling before starting the counting of the contested ballots. Of course, we would still be waiting for the public comment part of the process to be over with even now if the commission had.

More directly stated, the commission has made a ruling on the election that Miller says isn't clearly stated in the election law. There could be a section of the law that gave the power to the commission to make just a ruling, but isn’t clear here. What is important here is the separation of powers and the right of each state to set its own election rules.

As a principle of the Constitution, although never stated used, is the term “separation of powers.” The Alaskan legislature empowered the election commission to make decisions on the voting process. If a candidate has concerns with the results, they can take it to the state courts. It is a challenge of one branch’s authority by another. In this case, if the state legislature, through the election commission, over stepped its bounds, another branch of government can decide if it did, in this case, the state courts. The state courts have done just that. With a small detour here, the courts ruled that the outcome of the election would not have been different even if the commission had made a decision beyond the powers granted to them.

As for taking the case to the federal courts, the Constitution clearly states that elections are a state function. Unless Miller’s rights were violated in a way that would evoke the Fourteenth Amendment, the Federal Court should pass on any review.

Miller was a Tea Party candidate. The Tea Party has strong concerns about the Federal government getting involved in our lives. Yet, as soon as things don’t go Miller’s way, he looks to the Feds to give him help.

This election is over and the challenges need to stop.

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1 comment:

  1. Actually, I believe it had to be phonetic and if I recall they only accepted a spelling with two incorrect letters. Her lead could have been a lot larger had they accepted other spellings with fairly obvious intent. And, as I'm sure you know, they at first even challenged "Murkowski, Lisa" and other obviously correct votes that are still in the challenged pile and should be in the unchallenged one.

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