Joe Miller on Monday formally renewed his election challenge in federal court, asserting that even if he can't beat Sen. Lisa Murkowski, he'll emerge as a more viable political figure in the future if the courts reduce her lead.
Miller filed in federal court after losing last week in a unanimous ruling of the Alaska Supreme Court. Miller argued in his federal court filings that the case remains a "live controversy" and isn't moot despite the apparent size of Murkowski's lead.
Miller said in the filings that he can still beat Murkowski with the help of the courts. But he added that even if he can't, he deserves to argue her total was "artificially inflated" by illegal votes.
"The number of votes by which a candidate loses an election is an important consideration that affects public opinion and perceptions regarding the candidate; the candidate's continued viability as a public spokesperson or representative for the causes that he or she supports; the candidate's fundraising ability, both for himself and others; and his or her future viability as a candidate," Miller's lawyers argued in the filings.
Miller also said in the filings that narrowing Murkowski's lead could qualify him for a state-paid recount. Miller must pay for any recount unless he gets within a half-percentage point of Murkowski.
OLD CLAIMS, NEW VENUE
Miller's filings made it clear he's digging in for a long court fight. U.S. District Court Judge Ralph Beistline has indicated he will probably lift his order blocking certification of Murkowski as the winner and Miller said Monday he wouldn't object.
But Miller also asked the federal court to extend his deadlines for a recount and to allege other election irregularities through the state courts. Miller doesn't want the clock to start ticking on those until "a final judgment on this case has been entered, to include exhaustion of all direct appeals to the U.S. Circuit Court of Appeals and U.S. Supreme Court."
Miller's federal complaint repeats claims already rejected by the state courts. But Miller argues that the election, including the state counting misspelled write-in ballots for Murkowski, violated the U.S. Constitution and the federal courts should step in.
"Defendants' policy of attempting to divine the 'intent of the voter' from write-in ballots with misspellings is so vague and amorphous as to violate the Equal Protection Clause of the U.S. Constitution," Miller's lawyers wrote in a Monday filing.
Miller argues that state law doesn't allow misspelled write-in ballots to count, and that the state Division of Elections didn't have a clear standard for many of the votes it was counting for Murkowski.
The state Superior Court and the Alaska Supreme Court said the Division of Elections counted the ballots correctly. "Voter intent is paramount and any misspelling, abbreviation or other minor variation ... does not invalidate a ballot so long as the intention of the voter can be ascertained," the state Supreme Court said.
Murkowski, who leads by 10,328 votes, would still win by more than 2,000 votes even if the courts threw out all votes challenged by Miller's ballot observers. And Miller concedes some of those challenges were baseless.
But he argued in the court filings that there are "likely" more misspelled ballots that his observers missed. He also said that if the federal courts agree to toss out misspelled write-in ballots for Murkowski, he can go back to state court and argue other election issues.
The Alaska Supreme Court dismissed the bulk of Miller's claims of election irregularities. But the court didn't address his argument that felons were wrongfully allowed to vote. The Supreme Court said Miller can make that claim as an "election contest" if he can prove it and show it happened enough times to overcome Murkowski's lead. The state maintains it didn't happen at all.
TIME RUNNING OUT
Miller said in a prepared statement that the reason he is pursuing the court case is to ensure "fairness and transparency" in Alaska's election system.
"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," Miller said.
Miller, who ran on a tea party platform with the backing of former Gov. Sarah Palin, beat Murkowski in the August Republican primary. But she launched a write-in campaign, and Miller has been challenging the result since the Nov. 2 election.
Miller originally filed his lawsuit disputing the election in federal court. But the federal judge on the case, Beistline, said it raised state issues and moved the lawsuit into state court.
Beistline gave Miller until Monday to argue that the federal courts should take up any constitutional issues left over after the Alaska Supreme Court ruled against him. Miller met the deadline and the state's lawyers responded with filings arguing the issues have been settled and there is no merit to his claims.
Beistline will now consider the arguments and make a ruling. In the meantime, the state is urging Beistline to act quickly on lifting his order blocking the state from certifying the election.
Alaska Division of Elections Director Gail Fenumiai filed an affidavit with Beistline on Monday saying the order needs to be lifted by Wednesday. That's to ensure the certification can be signed and hand delivered to the Senate Office Building before Murkowski's current term expires at noon on Jan. 3, she wrote.
"The governor and lieutenant governor have arranged to be in the same city on December 30, 2010 and have scheduled a tentative meeting at which they can sign the certificate if the injunction is lifted," Fenumiai wrote. "The state is arranging for a state employee to hand deliver this certificate to Washington, D.C."