Sunday, November 28, 2010

A Review of ‘Voter Intent’ In Alaska’s Supreme Court 2006 Ruling

Why A Review
Alaska’s Lt Governor Campbell and the Alaska Republican Party Chairman Randy Ruedrich continue to ask Senatorial candidate Joe Miller to withdraw his challenge to the use of ‘voter intent’ to determine the validity of thousands of the votes cast for Lisa Murkowski.

They argue Alaska’s Supreme Court has ruled in favor of ‘voter intent’ in the past so it clearly should have been used in the current write-in effort of Lisa Murkowski. If that is true, and it was, Campbell and Ruedrich should be asking for an expedited ruling by the Alaska Supreme Court, but they are not. Instead, they continue to ask Joe Miller to throw in the towel.

Why? Why are they so adamant about this case not going to the Alaska Supreme Court? To find out, I took a look at a case where the Alaska Supreme Court ruled in favor of ‘voter intent’ and in the process discovered why they do not want this case to go forward.

The Election of 2006

In this case a candidate won by one (1) vote, whereupon the loser (the incumbent) requested a recount and won by one (1) vote. The challenger then appealed the recount results, alleging that the Division had improperly failed to count six ballots. Complete details may be found here.

The Six Ballots
A Division Director of the Department of Elections had determined six (6) ballots could not be counted. Both the challenger and the incumbent challenged the ruling of “overvotes” on three (3) ballots. Both also challenged the decision not to count two (2) special needs votes because the address of the voter was provided in on area of the ballot, but not in another.

The “Overvotes”
The “overvotes” were to be counted because voter intent could clearly be determined. This is where is gets really interesting.

The Alaska Supreme Court stated, “Proper disposition of the ballots requires that we carefully examine AS 15.15.360, which governs the counting of ballots.8  Subsection .360(a)(4) directs the Division not to count a ballot if the voter marks more names than there are open seats for that office.   Whether the Division appropriately categorized the ballots as containing overvotes depends on whether the markings next to the second name constituted “marks” to designate a vote.9”

And further, “Subsection .360(a)(1) limits the ways a voter may “mark” a ballot to “ ‘X’ marks, diagonal, horizontal, or vertical marks, solid marks, stars, circles, asterisks, checks, or plus signs that are clearly spaced in the oval opposite the name of the candidate.”   Subsection .360(a)(5) further clarifies which marks meeting the requirements of (a)(1) should be counted as votes, providing that “[t]he mark specified in (1) of this subsection shall be counted only if it is substantially inside the oval provided, or touching the oval so as to indicate clearly that the voter intended the particular oval to be designated.” 10”

The Smoking Gun
Continuing on, the second paragraph below contains the smoking gun the both Campbell and Ruedrich do not want out in the open.

“Reading these provisions together, an overvote occurs if the voter has voted for two candidates with “marks” as defined by subsection. 360(a)(1) that clearly indicate the voter's intent to vote for more than one candidate.11  Because a mark meeting the requirements of subsection. 360(a)(1) cannot be counted unless the voter's intent is clear, we begin by analyzing whether the second mark on each overvoted ballot clearly indicated the voter's intent to vote for a second candidate.”

“Moses argues in favor of a bright line rule that would consider the ballots overvoted without examining voters' intent.   But the terms of the statute itself make voter intent paramount.   The statute requires that before a mark is counted as a vote, it must comply with the requirements under subsection .360(a)(1) and clearly indicate voter intent as required by subsection .360(a)(5).   These terms are mandatory and require strict compliance.12  Contrary to Moses's argument that judicial review of ballots would open a “Pandora's Box,” AS 15.20.510 specifically envisions such a review in a recount appeal, providing that “[t]he inquiry in the appeal shall extend to the questions whether or not the director has properly determined what ballots, parts of ballots, or marks for candidates on ballots are valid.” (boldface italics added for emphasis)

The Statute
In case you missed it, the only reason voter intent may be considered is because the statute’s terms as quoted “make voter intent paramount.” This is the smoking gun Campbell and Ruedrich want to keep out of the public eye.

The statute as written, is itself is responsible for considering voter intent. The write-in statutes have no corresponding language for the Alaska Supreme Court to consider for “voter intent.” None. Zero. In fact, the write-in statutes (Sec. 15.15.360. Rules for counting ballots.) very clearly go the other direction stating there are no exceptions for the requirement for the name to be written in as it appears on the write-in declaration of candidacy and the statute later says (12)(b) “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.”

That is dramatically different from the statutes considered where “voter intent” was considered in 2006. Lt. Governor Campbell and the DOE stand a very real chance of losing this case at the Alaska Supreme Court. It will only get worse when Murkowski’s advertising campaign, including TV commercials, is introduced into evidence where the correct spelling of her last name was emphasized over and over again.

The statutes and the Alaska Supreme Court’s past reliance upon them favor Joe Miller’s legal position. Now he and everyone else waits to see if the Alaska Supreme Court will once again apply the statutes as written.

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