To recap briefly, Joe Miller successfully challenged incumbent Senator Lisa Murkowski in the 2010 Republican primary for a U.S. Senate seat from
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
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
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.