- Associated Press - Wednesday, December 22, 2010

JUNEAU, Alaska | The Alaska Supreme Court on Wednesday upheld a lower court decision in the disputed U.S. Senate race, saying the state correctly counted write-in votes for Sen. Lisa Murkowski.

It is now up to Fairbanks lawyer Joe Miller, the official Republican nominee who has been challenging Mrs. Murkowski’s vote tally, to decide if he wants to fight on in the last congressional race of the 2010 midterm campaign still to be decided.

The court said in its ruling that it found “no remaining issues raised by Miller that prevent this election from being certified.”

Mr. Miller, a favorite of former Gov. Sarah Palin and state and national “tea party” activists, fashioned a stunning upset of the incumbent in September’s GOP primary, only to see Mrs. Murkowski mount a write-in campaign in the general election Nov. 2.

Unofficial results showed her leading by 10,328 votes following a tedious, weeklong hand-count of ballots. The lead narrowed to 2,169 votes when ballots challenged by Miller’s campaign were excluded.

A federal judge, who had put a hold on certification to give the state courts time to rule on Mr. Miller’s claims, said he would give Mr. Miller 48 hours to plead any outstanding issues to him once the high court had ruled. Mr. Miller had initially filed a lawsuit in federal court, claiming the state violated the Elections and Equal Protection clauses of the U.S. Constitution in its handling of the race.

Miller spokesman Randy DeSoto said the candidate and his advisers are reviewing the high court’s decision, and are still weighing their options and chances of prevailing in the federal courts.

“We are disappointed the Alaska Supreme Court has ignored the plain text of Alaska law and allowed the Division of Elections to effectively amend the state election code, without even giving the public an opportunity for notice and comment,” he said.

The director of the state Division of Elections said the race could be certified within hours of the stay being lifted. The state and Mrs. Murkowski are eager for a rapid resolution; senators are sworn in for the new Congress Jan. 5.

“We felt all along that this election should have been certified, and I’m glad the Supreme Court took the time to come to a reasoned decision,” Murkowski attorney Scott Kendall said.

Mr. Miller had appealed state court Judge William Carey’s decision to toss out his challenge to the state’s counting of ballots for Mrs. Murkowski. Mr. Miller maintained that the state should be held to the letter of the law, which calls for write-in ballots to have the oval filled in and the last name of a candidate or the name as it appears on the declaration of candidacy written in.

He wanted the results of the election to be invalidated and called for a hand recount.

The state pointed to case law in defending its practice of using discretion in determining voter intent, allowing ballots with misspellings to be counted toward Mrs. Murkowski’s tally. Attorneys for the state and Mrs. Murkowski argued that Mr. Miller was seeking to disenfranchise thousands of voters.

The high court, in its ruling, called voter intent “paramount,” and said “any misspelling, abbreviation, or other minor variation in the form of the candidate’s name on a write-in ballot does not invalidate a ballot so long as the intention of the voter can be ascertained.”

“The state characterizes the standard urged by Miller as the ‘perfection standard,’ and we agree that such a standard would tend to disenfranchise many Alaskans on the basis of ‘technical errors,’ ” the court decided.

Justice Craig Stowers, who recused himself, did not participate in the 4-0 decision.

The court also sided with Judge Carey in finding the state was right not to count for Mrs. Murkowski ballots in which “Lisa M.” was written or Mrs. Murkowski’s name was written but the ballot oval wasn’t filled in.



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