In a press conference held this afternoon in Juneau, Alaska's GOP nominee for the U.S. Senate, Joe Miller, finally conceded the election to write-in candidate and incumbent Republican Senator Lisa Murkowski. He has decided not to appeal his federal case as dismissed by a U.S. circuit court judge on Tuesday. See AP's coverage for more on today's announcement.
Having followed the failures of Alaska's Diebold election system for years, The BRAD BLOG followed the race between Miller, Murkowski and Democratic nominee Scott McAdams closely over the last several months, as it served to offer, yet again, another reminder of the importance of full transparency and citizen oversight in (small "d") democratic elections and the need to reconsider the use of electronic tabulation systems which ultimately leave all of us wondering if election results are accurate and if this nation can consider itself as having anything approaching the self-governance envisioned in our Constitution...
After requiring Alaska's GOP U.S. Senate candidate Joe Miller to file his federal lawsuit by Monday (yesterday), the federal judge in the case has now dismissed it without even waiting for the reply from the state, which was ordered due by Wednesday (tomorrow).
A federal judge today dismissed Republican Joe Miller's federal lawsuit seeking to overturn the results of the Nov. 2 election, clearing the way for U.S. Sen. Lisa Murkowski to be officially declared the winner.
She's now scheduled to be sworn in for a new six-year term on Jan. 5.
U.S. District Judge Ralph Beistline issued a 14-page order this afternoon in which he said Miller wasn't raising any federal issues that he needed to resolve. He ordered Miller's entire federal case dismissed.
Beistline wrote that he would not second guess the Alaska Supreme Court, which already had ruled against Miller.
Miller said in a statement that he was disappointed by today's ruling and thought the U.S. Constitution's election clause presented a significant federal issue.
"Specifically, should the courts be required to follow the legislature's standard for the selection of U.S. Senators or create their own?" Miller said in a written statement. "My legal team believes that the clear language of the Election Clause as well as precedent support our claims. Thus, we are evaluating the ruling and determining what our next step should be."
The judge said state lawyers didn't need to respond to Miller's latest filings in federal court. But he also said Miller's technical arguments were not frivolous.
"What we have before us is a poorly drafted state statute," Beistline wrote. "Wisdom would suggest that the Alaska Legislature act to clarify it to avoid similar disputes in the future. For now we have to work with what we have and that is what the Alaska Supreme Court has done."
Last night we published our detailed analysis of Joe Miller's federal complaint, in which he pointed out Constitutional questions about the way in which the Diebold optical-scan system was used to tally votes. We also pointed out what might have been a fatal flaw in his complaint. Whether Miller will appeal Beistline's decision remains to be seen.
"We want the end result of this legal action to be for the people of Alaska to not only have full faith in the outcome of this race, but a confidence in the manner in which elections will be conducted in our state in the future," Alaska's "Tea Party"-supported, Sarah Palin-endorsed GOP candidate for the U.S. Senate, Joe Miller said in a statement today calling for "fairness and transparency" in the election process, issued after filing an amended complaint in federal court. His statement concludes with the simple sentiment: "Election integrity is vital."
Miller has decided to press on in his election contest against the state's Lt. Governor Mead Treadwell and their Division of Elections (DoE), as overseen by Treadwell, by filing a Substitute Amended Complaint for Injunctive and Declaratory Relief in U.S. District Court in Alaska today. The filing comes after resounding losses in state court and --- if the state's hand-count of write-in ballots and the Diebold optical-scanner tallies of all the other ballots are to be believed --- to Republican write-in candidate Sen. Lisa Murkowski in November's general election for the U.S. Senate. As the unofficial state count now stands, Murkowski reportedly defeated Miller (and Democratic candidate Scott McAdams) by more than 10,000 votes.
In the statement (posted in full at end of this article) Miller explains that his team has decided to forgo challenging Murkowski's official certification as the winner, allowing her to be seated in the U.S. Senate on January 5th.
"The integrity of the election is vital and ultimately the rule of law must be our standard. Nevertheless, I have also decided to withdraw our opposition to the certification of the election, ensuring that Alaska will have its full delegation seated when the 112th Congress convenes next month." he said, "This decision will allow Alaskans to focus on bringing fairness and transparency to our elections process without distraction of the certification issue."
But Miller's decision to drop his challenge to Murkowski's seating may prove to be a fatal blow to his case --- at least if precedent set by Republicans in Congress some years ago, ironically enough, is any indication. But more on that below.
After winning the GOP nomination against Murkowski, and then reportedly losing to her unprecedented write-in bid in November, Miller originally filed his election contest in federal court in November. U.S. District Court Judge Ralph Beistline subsequently responded by sending the case down to state court for initial adjudication on relevant issues of state law. Late last month, Beistline temporarily halted state certification of the race until those issues were decided, and last week the state's Supreme Court rejected Miller's appeal, siding with the state, on all counts.
Beistline had given Miller until today to re-file his amended complaint in federal court. His filing now includes just three counts asserting violations of the U.S. Constitution's "Election Clause" and "Equal Protection Clause" as based on both the DoE's liberal interpretation of state law in counting write-in ballots, as well as the disparate weight the hand-count of those ballots was afforded, versus those tallied by Diebold optical-scanners in the case of "pre-printed" candidates...
As largely expected, the Alaska Supreme Court has rejected GOP U.S. Senate candidate Joe Miller's contest against the Division of Elections, which has unofficially determined write-in candidate Sen. Lisa Murkowski bested both Miller and Democratic candidate Scott McAdams on November 2nd.
The Alaska Supreme Court today ruled against Joe Miller on all counts, a decision that leaves his challenge of Sen. Lisa Murkowski’s victory on life support.
“There are no remaining issues raised by Miller that prevent this election from being certified,” the Supreme Court declared in its unanimous ruling.
Murkowski leads Miller by more than 10,000 votes. Miller is quickly running out of options but he still has a chance to press his claim in federal court.
U.S. District Court Judge Ralph Beistline today gave Miller until Monday morning to argue the federal courts should take up any remaining constitutional issues.
Miller has indicated he might fight the election all the way to the U.S. Supreme Court. But his spokesman said today that Miller is weighing his next move.
And here's our detailed report from yesterday, describing the general issues at stake, and offering what seems to have been a pretty accurate preview of what the court appears to have decided today. The decision once again leaving thousands of paper ballots completely unexamined by human eyes, tallied only by oft-failed, easily-manipulated computer systems, just as NY's highest court did earlier this week in a race that was far closer than the Miller/Murkowski/McAdams race.
[Update 12/22/10: Alaska Supreme Court decides against Joe Miller on all counts. Details here...]
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Having paper ballots is one thing. Seeing them actually be counted, unfortunately, continues to be quite another matter.
For those of you who may not understand why it's not enough to merely have hand-marked paper ballots that are tallied only by oft-failed, easily-manipulated computers --- even if those paper ballots could be counted by human beings "in the event there are questions about the results", as supporters of such systems like to say --- need look no further than the extraordinary finding on Monday from New York's highest court, its Court of Appeals.
And, for that matter, what is likely to happen in Alaska very soon, where Republican Joe Miller continues to wait for a similar decision from that state's Supreme Court in his fight for a hand-count of all paper ballots in his still-uncertified U.S. Senate race against Republican write-in candidate Lisa Murkowski and Democratic candidate Scott McAdams...
JUNEAU, Alaska — An Alaska federal judge ruled Friday that Republican Senate candidate Joe Miller's challenge to the counting of write-in ballots raises "serious" legal issues but is a matter for a state, not federal, court to decide.
Yet in deferring to an Alaska state court for a final decision, U.S. District Judge Ralph Beistline said he would grant a temporary injunction to halt official certification of the Nov. 2 election – an action Miller is seeking – so long as Miller takes his case to the state court by Monday. Miller told The Associated Press late Friday that he intended to do so.
Beistline's unusual action was intended to "ensure that these serious state law issues are resolved prior to certification of the election," the ruling said.
Earlier this week AP called the election in favor of incumbent Republican write-in candidate Sen. Lisa Murkowski. But, as we described, there are a number of reasons --- including Alaska's recent history of impossible election results as reported by their flawed, oft-failed, easily-manipulated and non-transparent Diebold optical-scan system --- which suggest that Miller would be performing a service to the voters of Alaska and the rest of the country if he used his standing to insist on a full, public hand-count. By the way, Democratic candidate Scott McAdams would be performing a similar service if he used his standing to join Miller in that pursuit...
After a week of hand-counting paper write-in ballots in Alaska's three-way U.S. Senate race between incumbent Sen. Lisa Murkowski (who ran as an independent write-in candidate), Republican candidate Joe Miller and Democratic candidate Scott McAdams, the Associate Press called the race this afternoon for Murkowski.
Trailing by some 10,000 votes behind Murkowski, however, and with several lawsuits concerning the tabulation of ballots still pending, Miller is suggesting it's likely that his campaign will call for a "hand count" of all of the ballots cast in the race, not just those in contention during the counting of write-in ballots over the last week.
Given Alaska's years-long record of often-inexplicable election results, going back at least as far as the 2004 Presidential Election (and the first election as Senator for Murkowski who had previously been named by her father to replace him in the U.S. Senate when he became Governor in 2002); the repeated failure and insecurity of the state's Diebold election system; and the AK Division of Elections' truly remarkable history of blocking citizen oversight of election results --- much of which has been documented at The BRAD BLOG since late 2005 --- a thorough reconciliation of results by the Miller team would be both appropriate and helpful for all future elections in the state (and even for other states, where similar nearly-impossible-to-oversee optical-scan ballot systems are similarly used.)
We have no particular dog in this race, as our coverage of issues of Election Integrity is, as always, non-partisan. Our only concern is for the voters, that they get to vote if they wish, that their votes are counted accurately if they do, and that the counts are performed transparently so that all citizens can know that the results are, indeed, accurate.
To that end, though we haven't consulted directly with any of the campaigns in the Alaska race, we have been following the tabulation closely since Election Day two weeks ago, and have been speaking with a number of sources in the state who have, we're told, been sharing various thoughts we've offered with both the McAdams and Miller campaigns. The advise we've offered --- as we would to anyone who asked, including Murkowski's campaign --- appears to have been taken to heart by the Miller team, at least if one of their lawsuits, and a number of their public statements given over the last week are any indication.
As mentioned, Alaska's history of election results that seem to defy mathematical explanation, along with (understating the problem here) less than transparent processes and a failure to make recommended changes to their election system and procedures, leads to a case where a full, manual, reconciliation of all ballots cast and counted --- as called for by the Miller camp, or any other --- would provide a valuable service to the state and all of its voters...
I'm prepping for tonight's Mike Malloy Show which I will be, once again, guest hosting this evening (9-Mid ET / 6-9p PT, with listen links and live chat right here at BradBlog.com later), but took a short break to chat with Shannyn Moore on Alaska's KUDO about the state of the state's elections right now as the Joe Miller and Lisa Murkowski campaign's duke it out in regard to counting (or not counting) write-in ballots from the U.S. Senate race.
As predicted, the fight for oversight and reconciliation of the results is on right now, and the Miller camp has brought in one of the great Rightwing extremists, Floyd Brown (he of the Willie Horton ads, Obama "birtherism" and much more) to take the lead in the campaign's fight for oversight.
Where Brown is inappropriately suggesting "voter fraud" without evidence to back it up, he is exactly right in calling for the right for the campaign to be allowed to reconcile the poll rosters to determine if the lower-than-expected number of ballots so far tabulated are, indeed, accurate. To that, I'm more than happy to support his efforts or any other citizens who want to fight to try to ensure their elections are being counted accurately and transparently.
Shannyn and I discussed all of the above and more for about 30 mins or so. Here's that discussion:
UPDATE 11/13/10: Jeanne "AKMuckraker" Devon has more on the developing sitch up there, all the strange bedfellows tucking themselves in, and this hilarious admission: "So, it is with a whiplash-addled heart that I commend…. (pauses for a shot of vodka)… that I say kudos to (mops brow)… that I agree with (deep breath)… Joe Miller."
UPDATE 11/17/10: Joe Miller now suggests his campaign may call for a complete 'hand count' of all ballots. A detailed analysis of Alaska's recent history of impossible election results and it's oft-failed Diebold tabulators suggest Miller would be performing a service to all voters with such a full, transparent reconciliation. Details now here...
[The AK Supreme Court has put a stay on the Superior Court Judge's order. For now. See important update at bottom of article.]
As we've been suggesting in our two previous articles on the issue, the Alaska Division of Election's unprecedented move to supply printed lists of write-in candidates to polling places, purportedly to "assist" voters seeking help, violates state election procedures.
A judge today ruled in favor of the Alaska Democratic Party (ADP), as well as the state Republicans who joined the suit, by issuing a temporary restraining order finding the DoE's practice a "clear violation of Alaska administrative regulation."
We covered the issue over the weekend when it first came up, as letters went back and forth between the ADP, who charged the procedure amounted to "electioneering" inside the polling place, and the DoE, who claimed they were required by state and federal law to provide such assistance to voters.
We covered it again last night, when the DoE responded to our public records request for previous lists of printed write-in candidates by denying the request, since, as DoE Director Gail Fenumiai wrote, "The requested records do not exist."
State Superior Court Judge Frank Pfiffner agreed that the state's argument "rings hollow", noting, "If it were important 'assistance' for the division to provide voters with lists of write-in candidates, then the division has been asleep at the switch for the past 50 years. The division first developed the need for a write-in candidate list 12 days ago."
The ruling comes as a blow to incumbent Republican Sen. Lisa Murkowski, who tossed her hat into the ring as a write-in candidate after her primary loss to the GOP's Joe Miller. Along with Democratic nominee Scott McAdams, a fierce three-way battle has ensued for the open U.S. Senate seat from Alaska. Although it's unclear what leg they have to stand on, the state has said they will appeal Pfiffner's decision ordering the immediate removal of the printed list of "certified" write-in candidates from polling places across the state. The judge also ruled that pollworkers may not mention Murkowski's, or any write-in candidate's name, to voters.
Over the weekend we covered the dispute between Alaska's Division of Elections (DoE), who has been handing out printed lists of write-in candidates to early voting sites, and the Alaska Democratic Party (ADP) who says doing so amounts to inappropriate electioneering at the polling place for write-in U.S. Senate candidate Lisa Murkowski in support of her challenge against GOP nominee Joe Miller and the Democrat's Scott McAdams.
The ADP went to court yesterday to file for an injunction, an official told The BRAD BLOG late today. The judge will issue his finding on Wednesday morning. But an admission we received today from Gail Fenumiai, Director of the DoE, may make it more difficult for the state to make their case.
As we detailed Saturday, in letters back and forth between the parties, the Fenumiai has been arguing that the list of candidates --- which reminds voters that Murkowski is running, and shows how to spell her name (a potential matter of dispute when determining which write-ballots should be counted or thrown out) --- is required by state and federal law in order to "to provide assistance to voters in the polling place upon request." She claims "The list of write-in candidates is the best way for poll workers to provide consistent information and assistance to voters if requested, regarding write-in candidates."
In response, ADP attorneys argued "There is no statutory or other legal basis for generating and making available to voters a list of write-in candidates and we are unaware, in the fifty-year history of the state, that such a list has ever previously been generated or used."
Indeed, as other names may be written in on ballots, in addition to those on the list, and the deadline is still open for write-in candidates to file a declaration of intent (giving them certain post-election privileges), the procedure seems legally dubious as well as historically unprecedented as ADP attorneys have charged.
To get to the bottom of it, and to find out if, in fact, the DoE has ever taken such action to "provide assistance" in previous elections, as Fenumiai claims is required by both state and federal law, The BRAD BLOG dashed off a public records request for any similar printed lists of write-in candidate provided to polling places during any previous elections.
This afternoon we received our reply from the DoE's Director, denying our public records request because, as she explains, the DoE has never supplied such a list prior to these 2010 general elections, so there are no records to send in response to our request.
Here's the pertinent part of her response [which is linked in full below]...
As you may know, the U.S. Senate race in Alaska between GOP nominee Joe Miller and Democratic nominee Scott McAdams, Mayor of Sitka, has been thrown into what's quickly turning into a potential three-way toss-up with Sen. Lisa Murkowski's write-in bid for the seat.
She and her father have long been insider fixtures within Alaska's political establishment, and so now both the state Democrats' supporter McAdams and Miller's campaign are accusing the Department of Elections, run by the state's Republican Gubernatorial administration, of taking sides to help Murkowski by inappropriately making a printed list of those write-in candidates who have filed a declaration of intent (under AS 15.25.105) available to voters who ask for help at the polling place.
A series of letters back and forth between the Alaska Democratic Party (ADL)'s attorney Joe McKinnon and the Director of the state's Division of Election (DoE)'s Gail Fenumiai highlight a questionable-at-best assertion that the printed list of write-in candidate names should be shown to voters if/when they ask questions about how to cast a write-in vote.
Fenumiai argues that the best way to provide assistance when it's requested, as required by both state and federal law, is by showing voters the list. McKinnon disputes the argument, and offers specific citations of law, demonstrating that the statutes are very specific about what sort of help may or may not be provided to voters at the polling place. He argues that offering the name of a write-in candidate to voters constitutes "electioneering," as specifically barred inside or within 200 ft. of the polling place...
The editor of the Alaska Dispatch website was arrested by U.S. Senate candidate Joe Miller's private security guards Sunday as the editor attempted to interview Miller on camera at the end of a public event in an Anchorage school.
Tony Hopfinger was handcuffed by the guards and detained in a hallway at Central Middle School until Anchorage police came and told the guards to release him.
Hopfinger has not been charged but the owner of the Drop Zone, private security firm that's been providing Miller's security, accused Hopfinger of trespassing at the public event, a "town hall" meeting sponsored by the Miller campaign. The owner, William Fulton, also said Hopfinger assaulted a man by shoving him.
Alaska blogger/radio host Shannyn Moore tweets late tonight: "The Drop Zone has a picture of Obama as the joker in their window."
Miller's Democratic opponent Scott McAdams tweets: "@JoeWMiller - in case you were unaware, the Constitution also applies to reporters."
Alaska's incumbent Senator, Republican Lisa Murkowski, is also running in the race as a write-in candidate this year after having lost to Miller in the GOP primary which, as we detailed some weeks ago, could seriously test the state's lousy Diebold optical-scan voting system.
Finally, there's Miller's most famous endorser, celebrity organizer Sarah Palin who loves to shout "Do you love your freedom?!" at her rallies. Perhaps she means that as a threat at this point? Good lord.
News reports have noted that the incident took place after Miller had left the building, leading Media Matters' Eric Boehlert to ask via Twitter: "Why did Miller's rent-a-cops 'arrest' blogger if Miller had left the building? Who were they protecting/what were they afraid of?" Good question.
Over the weekend, Republican Sen. Lisa Murkowski announced she would run as a write-in candidate this November after reportedly losing a close GOP primary race to far Rightwing "Tea Party" candidate Joe Miller.
The three-way race, along with Democratic candidate and Mayor of Sitka Scott McAdams, could prove to be a serious challenge for Alaska's historically-dicey optical-scan voting system made by Diebold. Given the shortcomings of the system which otherwise employs the concealed vote-counting of centrally tabulated ballots, the need to hand-review write-in votes this November could present a unique opportunity for citizens of the 49th state to oversee at least some of their own electoral system --- for a welcome change.
Statistical polling analyst Nate Silver, whose FiveThirtyEight blog is now hosted by The New York Times, has been suggesting that Murkowski's seemingly-Quixotic bid, while still a long shot, may actually prove to be "viable" as a write-in campaign. But whether or not Alaska's voting system is up to task may be a different matter, and an additional hurtle for Murkowski to overcome...