Brad Friedman Byon 10/23/2010, 12:25pm PT

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...

Fenumiai says the DoE is merely trying "to provide assistance to voters in the polling place upon request. 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."

McKinnon charges that "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."

A request sent to Fenumiai by email late Friday afternoon by The BRAD BLOG, seeking copies of any printed list of write-in candidates distributed to polling places in past elections has so far gone unanswered.

Vagueries in Alaska's law on which write-in votes are acceptable for counting (eg, the state has previously indicated that a misspelled "Murcewsky" might be counted, while a voter who simply specifies "Lisa" might not) along with known, and serious, deficiencies in the state's Diebold computerized optical-scan vote-counting system --- both of which we detailed some weeks ago here after Murkowski lost the GOP primary and then announced her intention to run as a write-in --- are likely to lead to some nasty, post-election legal contests from all sides.

That the DoE seems intent on standing by its assertion that showing the list of write-in candidate names to voters is the best way "to provide assistance to voters in the polling place" seems legally sketchy at best and, potentially, downright illegal. Before we even get to the fight about which ballots should be counted and which ones shouldn't after the election, the battle over the printed list of write-in candidates is likely to head to court, according Friday's report in the Anchorage Daily News. The buzz we're hearing from sources in Alaska suggests that may be the only option as early voting continues apace with that list of write-ins available, and being shown to voters, at polling places.

DailyKos' Joan McCarter also picked up on the story yesterday.

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Here are some of the letters [all PDF] being lobbed back and forth on the issue between the DoE and the ADL (though Miller's campaign, we're told, has also issued objections to the DoE's questionable policy):

• 10/20/10 DoE replies to ADL's initial objections.

• 10/20/10 ADL replies in kind, citing statues which they feel DoE is violating.

• 10/22/10 DoE's email to a McKinnon supporter, standing by their position.

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UPDATE10/26/10: The DoE Director admits to The BRAD BLOG that they have never before given printed lists of write-in candidates to the precincts. Full details, DoE response, now posted here...

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