Contests 'vague voter intent' determinations, reliance on Diebold op-scan tallies on Constitutional grounds

But GOP candidate's decision to drop contest of Murkowski certification could prove fatal to overall case...

Brad Friedman Byon 12/27/2010, 6:53pm PT

[Update 12/28/10: Federal judge dismisses Miller's complaint. Details now here...]

"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...

Miller's amended complaint [PDF] argues DoE Director Gail Fenumiai "ignored the rules for counting write-in ballots that the Alaska legislature clearly and unambiguously set forth in state law, and instead adopted her own alternate --- and highly subjective --- approach."

That argument was rejected in the state Supreme Court's recent ruling and, prior to that, by a lower court judge who found that case law precedent determined the DoE's liberal interpretation of "voter intent" was in compliance with state election code.

The section of the law in question (AS 15.15.360) states "A vote for a write-in candidate ... shall be counted if the oval is filled in for that candidate and if the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided."

The statute further goes on to note: "The rules set out in this section are mandatory and there are no exceptions to them. A ballot may not be counted unless marked in compliance with these rules."

Nonetheless, the AK Supremes upheld the lower court's liberal interpretation of the word "appears" in allowing the DoE's discretion in counting as valid some 8,000 votes in favor of Murkowski, despite misspellings and other strict deficiencies (such as ovals not filled in), as challenged by Miller's team.

Miller is now arguing the state's "change in the rules for counting votes after voting has concluded raises the specter of manipulation, favoritism, and fundamental unfairness." His federal suit argues the state legislature has the sole power to determine the "Manner of holding Elections for Senators and Representatives" as per Article 1, Section 4 of the U.S. Constitution. The state executive branch, which oversees the DoE and which granted Fenumiai the power to determine "voter intent", may have no role in overriding the legislature according to the Constitution, his motion states.

Moreover, Miller argues the DoE's "voter intent" standard is "unconstitutionality vague" and therefore in violation of the 14th Amendment's "Equal Protection Clause" as cited by the U.S. Supreme Court in 2000's Bush v. Gore decision.

"The Equal Protection Clause requires state officials to establish much more 'specific standards' and 'uniform rules" in order to prevent 'the standards for accepting or rejecting contested ballots' to vary 'within a single county from one count team to another.'," contends Miller's legal team. "Defendants have adopted the same type of policy that the Supreme Court already has declared constitutionally inadequate. ... This quixotic quest resulted in the arbitrary and disparate treatment of write-in ballots in clear violation of the U.S. Constitution."

"Although the Division repeatedly declared that the Director would be counting write-in ballots based on what she subjectively perceived to be the 'voter's intent,' the Division never established or announced any written rules, guidelines, policies, or procedures by which the Director would attempt to divine 'voter intent' or apply that nebulous standard," Miller states in the federal complaint.

Indeed, as The BRAD BLOG noted back in September, after Murkowski declared her intention to run as a write-in candidate, the DoE's announcement of what seemed exceptionally vague standards for determining which votes would be valid, was likely to lead to a post-election mess.

Coupled with Alaska's oft-failed, unreliable, easily-manipulated Diebold op-scan systems, as we noted at the time, the entire affair seemed to be shaping up as a recipe for disaster --- just like the one Joe Miller is now contesting.

'Automated Tally Systems' v. Human Hand-counts

Nonetheless, even if the approximately 8,000 write-in votes for Murkowski challenged by Miller based on "lenient" or "vague" standards for determining "voter intent" were tossed out, the GOP's nominee would still trail the incumbent Republican Senator by some 2,000 votes in the state's tally. That tally, Miller argues, is also tainted because ballots cast for pre-printed, non-write-in candidates were examined for validity only by the state's Diebold optical-scan systems.

In the process, ballots determined as "invalid" by the automated tally system were examined again for possible inclusion in Murkowski's write-in vote total, but not for pre-printed candidates. That, Miller argues, gave write-in votes a "second bite at the apple" in violation of the 14th Amendment as, again, cited by the U.S. Supreme Court in Bush v. Gore.

The state used "two different procedures and policies for determining ballots' validity," which, Miller's argues, was determined by the SCOTUS in 2000 to be in violation of the U.S. Constitution:

[T]he Defendants treated the automated tally machines' determinations regarding which ballots were valid, and could be counted, as conclusive. For write-in candidates, however, the automated tally machines' validity determinations essentially were ignored. Division personnel reviewed all the ballots cast in the election to identify each write-in vote, and determine for themselves whether or not it should be accepted as valid and counted. It is undisputed that Division personnel applied much more liberal, lenient, and forgiving standards than the automated tally machines in determining whether write-in votes were valid, and accepted as valid and counted write-in votes that the automated tally machines would have rejected.

Miller argues that the DoE's "discriminatory policy...gave a substantial advantage to write-in candidates" when the state "accepted as valid and counted write-in votes that automated tally machines had rejected."

"[W]hereas write-in votes that automated tally machines had rejected were given a 'second bite at the apple' to be accepted as valid and counted, votes for preprinted candidates were not." That policy, he says, "gave a substantial, unfair, and illegal advantage to write-in candidates such as Lisa Murkowski, and unconstitutionally discriminated against both candidates whose names were pre-printed on the ballot, such as Plaintiff Miller, and voters who unsuccessfully attempted to cast ballots for them."

"A person whose vote in the race for U.S. Senate was rejected by an automated tally machine could have that vote counted if they had attempted to vote for a write-in candidate, but not if they attempted to vote for a candidate whose name was pre-printed on the ballot," the motion argues.

Those numbers could be enough to make up the difference in the results, says Miller, if the federal courts find for him on all counts:

5. Whereas automated tally machines identified only 102,252 potentially valid write-in votes, Division personnel identified a total of 103,805 potentially valid write-in votes, meaning that Division personnel gave additional consideration to 1,553 write-in votes that automated tally machines had rejected as invalid. Of the 103,805 potentially valid write-in votes they identified, Division personnel ultimately counted 101,088 for Lisa Murkowski. Had Division personnel limited their review and further consideration only to the 102,252 ballots that automated tally machines accepted as valid write-in votes, it is likely that Lisa Murkowski ultimately would have received less than 100,000 votes. Conversely, there were approximately 1,329 votes that the automated tally machines rejected, which the voter had not apparently attempted to cast for a write-in candidate, which Division personnel did not personally review to determine if they nevertheless should be accepted as valid.

"Such arbitrary and disparate treatment constitutes unlawful discrimination in violation of the Equal Protection Clause, as interpreted in Bush v. Gore, 531 U.S. 98, 3 105 (2000)," the motion avers.

Not mentioned in Miller's federal case this time, though noted in previous statements and legal filings, is the state's horrible record of vote counting on Diebold optical-systems as we reported in some detail back in November when describing Miller as wise for seeking a hand-count of all ballots cast in the state.

An Unmentioned, But Fatal Constitutional Issue for Miller?

There is one other Constitutional issue that Miller may soon run up against now that he's decided to not challenge Murkowski's seating in the U.S. Senate. And it's one that the Republican Party themselves set a disturbing precedent on back in 2006, ironically enough.

Long time readers of The BRAD BLOG may recall our lengthy coverage of the disastrous 2006 special election in California's 50th U.S. Congressional District (San Diego) to fill the seat vacated by jailed Republican Rep. Randy "Duke" Cunningham. In that contest, after violations of the law had been discovered in the use of San Diego's Diebold optical-scan system, the Republican candidate was hastily certified and sworn into the U.S. House by the then-GOP majority, even as more than 50,000 votes still remained uncounted by anybody, and as an election contested was filed in California.

As the case made its way into court, House Republicans would ultimately intervene to dispute the right for the contest to be challenged at all in court.

Citing Article 1, section 5 of the Constitution --- the section following the one cited in the first count of Miller's federal suit --- the Republican-leadership of the U.S. House Administration Committee sent a letter [PDF] to the CA judge in the case, arguing that neither CA voters nor the state courts had jurisdiction to contest the election once the candidate had already been sworn into the U.S. House.

"The Court should dismiss this action," Paul Vinovich, Republican counsel to the House Admin Committee wrote to Superior Court Judge Yuri Hoffman at the time. "State courts do not have jurisdiction to decide an action contesting the election of a member of the United States House of Representatives. That power is textually committed to the House of Representatives itself by the Constitution, a commitment that has been recognized by the Supreme Court."

"The United States Constitution unambiguously states that 'Each House shall be the Judge of the Elections, Returns, and Qualifications of its Members,'" Vinovich argued, quoting Article I, section 5. "As a result, the Constitution gives the House of Representatives 'the authority 'to determine the facts and apply the appropriate rules of law, and, finally, to render a judgment which is beyond the authority of any other tribunal to review.'"

As the Republican House had chosen to seat Brian Bilbray, the Republican candidate in the CA-50 election, by the time the case was argued in court, the issue was out of the hands of the judiciary, and firmly in the Constitutional control of the Congress, as Vinovich argued on behalf of the GOP House.

On the strength of the Republicans' assertion, the judge dismissed the case, finding the contestant's complaint to be moot.

If Sen. Lisa Murkowski is seated in the U.S. Senate on January 5th, as currently scheduled, and as Miller has now said he will not contest, it's possible that the federal courts may also find his case to be moot, and then tossed on similar grounds to the 2006 contest. In that case, there would be no further counting of ballots by any means, and the results of votes tallied only by computer systems made by Diebold, Inc. --- and never checked for validity by human beings --- would once again rule the day.

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Joe Miller's complete statement issued with his federal court filing today, follows in full below...

Miller Will Not Oppose Certification of U.S. Senate Race

Federal Case to Move Forward Fairbanks, Alaska. December 26, 2010 --- Joe Miller, Republican nominee for U.S. Senate, will not oppose state certification of the U.S. Senate race in Alaska. For the sake of the integrity of the election, Miller will go forward with the federal suit, which was filed last month, but required a final determination by the Alaska state court to proceed further. He will be filing a motion in federal court to stay the post certification election contest timeline until after the federal case has concluded. "After careful consideration and seeking the counsel of people whose opinion I respect and trust, I have decided that the federal case must go forward. 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." Miller added, "This decision will allow Alaskans to focus on bringing fairness and transparency to our elections process without distraction of the certification issue." In its court filings, the Miller legal team pointed out several issues that require further review including: whether the U.S. Constitution's Election Clause was violated by ignoring the legislature's mandatory provisions for write-in candidates; whether the U.S. Constitution's Equal Protection Clause was violated by the different vote counting standards that were applied, dependent on the candidate in question; and other issues such as at least hundreds of felons voting and at least hundreds of ballots being filled out by a handful of people. Miller stated, "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. Election integrity is vital." ###

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