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Can Joe Miller Win?

To recap briefly, Joe Miller successfully challenged incumbent Senator Lisa Murkowski in the 2010 Republican primary for a U.S. Senate seat from Alaska.  Murkowski then launched a write-in campaign for the general election, and it appears that there were many more write-ins than votes cast for Miller (or for the Democratic nominee, who has conceded).  Alaska is now going through the process of determining for whom the write-ins were cast, though it is presumed that the overwhelming majority were intended to be for Murkowski. 

            For present purposes, we will assume that the number of write-in votes cast for “Lisa Murkowski,” or some reasonable variant thereof, will clearly exceed the number of votes cast for Miller.  Miller contends, however, that the state can legally count only those ballots that correctly reflect the spelling of Murkowski’s name.  He has brought a civil suit seeking to enjoin the state from counting misspelled ballots.   

            Miller may be correct about Alaska law, and it is possible (though unlikely) that he will be able to get enough write-in ballots thrown out so as to be certified the winner of the election.  That, however, is not the end of the matter.  Murkowski will still have the option (which she would almost certainly exercise) to contest Miller’s election in the U.S. Senate.  And the odds are very good that she would prevail in such a contest. 

             To begin with, the Senate enjoys a good deal of flexibility in how it handles an election contest, having established no fixed or formal procedures as exist in the House.  As one commentator notes, “the relatively informal nature of the process results in contestants having wide discretion to bring a case and the Senate having a wide discretion as to how it will handle such a contest.” 

            Moreover, Murkowski has at least one closely analogous Senate precedent that she could cite in support of her challenge.  In a 1924 U.S. Senate race in Iowa between Daniel Steck and Smith Brookhart, Brookhart was certified as the winner by 755 votes.  Steck, however, contested the election on the grounds that Iowa had rejected so-called “arrow ballots,” in which voters had marked Steck’s name but had drawn in an arrow (mimicking a sample ballot they had received); this marking required the disqualification of the ballot under Iowa law.  The contest was referred to a Senate committee, which decided to count those “arrow ballots” which clearly indicated an intent to vote for Steck, notwithstanding the Iowa law.  Although Brookhart’s supporters objected that “no precedent existed for the Senate to overrule a state’s election law” in this fashion, Steck’s supporters argued that “Iowa voters’ preferences, when clearly conveyed on their ballots should be honored, lest their voting rights be denied.”  Ultimately, the Senate decided to count the arrow ballots and seat Steck. 

            Murkowski’s position would be further bolstered by the political realities.  The Democratic majority in the Senate has no incentive to seat Miller, and it would have every reason to take a Murkowski challenge seriously (thereby prolonging a Republican internal battle).  It is reasonable to assume that some Senate Republicans would also be sympathetic to Murkowski, a former colleague who has indicated she would continue to caucus with the Republicans.  Finally, most Senators are likely to be uncomfortable with disregarding the apparent will of the voters, regardless of the legal niceties. 

            In short, even if Miller prevails on his claims under Alaskan law and is certified the winner of the election, he is likely to lose the Senate seat in the long run.

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