The campaign of Sen. Lisa Murkowski (R-AK) is publicly accusing her opponent, Republican nominee Joe Miller, of launching frivolous challenges against write-in ballots for the incumbent. And for its part, Team Miller simply maintains that they are trying to uphold the letter of the law, making sure any votes for Murkowski have her name written in properly.
But as the counting goes on, both media monitors and Murkowski poll watchers keep finding evidence that the Miller campaign might be interested in more than just the letter of the law.
Miller has maintained that the strict interpretation of the statute, requiring an exact spelling of Murkowski’s name as it was written on her declaration of write-in candidacy, is the only standard by which votes for her should be counted. Initially, Miller pitched the idea that misspellings of Murkowski’s name are not votes for her at all, but rather protest votes against her campaign to educate voters on how to spell her name for writing it in.
In an unsuccessful lawsuit to stop the vote-counting, his campaign argued against state officials using a more liberal voter-intent standard, which they say is backed up by case law, that would pardon some degree of spelling errors. Counters are simultaneously counting some challenged ballots while setting them aside for the spelling issue, in case the officials are reversed; in the mean time, Miller’s camp is challenging any ballot they think they’re entitled to — even, it seems, some that many people would have trouble arguing about.
For example, the Associated Press reports:
Shortly after the second day of write-in ballot counting began in the race, a Miller observer challenged a vote for Murkowski that appeared to have her name spelled and printed correctly, though the “L” in “Lisa” was in cursive handwriting.
“They’re just absolutely trying to boost their numbers,” Murkowski spokesman John Tracy said.
Now take a look at this. Anchorage Daily News reporter Sean Cockerham posted five photos of ballots that were challenged. His editors told us that he selected the four ballots below (and one other) from a group of challenges and snapped pictures with his iPhone. Looking at them with your own eyes, it’s hard to tell what could actually be wrong with them:
The line from Team Murkowski about Team Miller allegedly “trying to boost their numbers” refers to a common issue that can pop up in recounts and close, disputed elections. When a campaign has the opportunity to contest a ballot, there exists an incentive to try to keep votes for the opponent out of the count to whatever extent they can, even if only temporarily. For example, during the 2008 Minnesota Senate recount, thousands of ballots were challenged by both the Coleman and Franken campaigns, distorting the totals — which effectively hid the reality that Franken was pulling into a narrow lead.
The ballot-challenging ploy backfired in a very amusing way in the NY-20 special election in 2009 to fill Sen. Kirsten Gillibrand’s former House seat — her absentee ballot was challenged by the Republican candidate’s campaign. This served to transform the challenge issue from an obscure mathematical concern that only a few journalists would understand, into a tangible issue that had a human face.
However, it should be noted that Miller doesn’t actually have the opportunity to distort the numbers in a serious way here, but only to build a base of challenges to votes that are counted for Murkowski now but could be subtracted later. Indeed, it could be a bit difficult politically, if the counting ended with Miller trailing Murkowski by a significant margin and he had to fight tooth and nail to subtracting Murkowski votes by arguing about the spelling and handwriting.
Write-in ballots have been put into three categories so far: Those that are counted for Murkowski without controversy (an estimated 89% so far), those that are not counted by the state officials in agreement with Team Miller’s challenges (about 1.5%) — and the rest, which are under challenge but counted for Murkowski and set aside for later review.
If the 89% for Murkowski holds up as the percentage of ballots that are counted without controversy, she might just win outright regardless of the challenges — but if things slip lower, this could come down to some serious legal arguments about that remainder of provisionally-counted ballots.
I asked Miller spokesman Randy DeSoto about some of these challenged ballots, such as the ones seen in the Anchorage Daily News photos above. DeSoto pointed out that 89% of ballots aren’t being challenged at all, and any accusations of frivolous challenges should be viewed within that context. “What we’re trying to do now is segregate out any ballots that have any question whether they meet her name as it’s listed on her declaration of write-in candidacy,” said DeSoto. He also added: “To comment on each individual one, I don’t think I should get into that. But if they see a letter that’s off, any legibility issues.”
Finally, I asked DeSoto about a comment made by several people: that the challenged ballots seen in the ADN photos all seem to have feminine handwriting.
“I mean, that’s ludicrous,” DeSoto replied. “We haven’t had any — our observers are both male and female. And they’re all just looking for the variations that I talked about. If there’s any sort of indication that there’s maybe a spelling issue there, let’s pull them to the side, because that’s what the law requires, that it be spelled correctly.”