Miller to decide Monday on Alaska Senate election challenge

Published 3:00 pm Friday, December 24, 2010

ANCHORAGE, Alaska — Joe Miller said he’ll announce on Monday if he’s going to keep up his legal challenge of Alaska’s Senate election despite his overwhelming defeats so far in the courts. Election law experts are giving Miller little chance of finding success.

The state Superior Court and the Alaska Supreme Court ruled against Miller on all counts. The Alaska Supreme Court said Wednesday that Sen. Lisa Murkowski should now be certified the winner with 10,328 more votes than Miller.

U.S. District Judge Ralph Beistline has given Miller until 9 a.m. Monday to present an argument that constitutional issues remain that the federal courts need to decide.

Miller has not agreed to an interview with The Anchorage Daily News since the Alaska Supreme Court ruled. But on Thursday he called into Fox News’ “Your World With Neil Cavuto,” a regular venue for him before and after the Nov. 2 election. Miller told the Fox News host that “we’re just considering all of our options.” ”We’ll probably through the Christmas holiday make a decision and on Monday expect to conclude as to whether or not we’re going to continue the election clause dispute with the federal courts,” Miller said.

Miller continues to raise money for his challenge. He sent an e-mail to supporters Wednesday night after the Alaska Supreme Court ruling. The message said Miller was weighing his options but concluded with a plea to “help us ensure a fair vote count in Alaska. Please click here to donate a gift of $100, $75, $50 or $25.” National election law experts Ed Foley and Rick Hasen, who have followed the case and read through the court rulings, said they believe Miller stands little chance in the federal courts. “Pretty close to zero, I would say,” said Foley, who teaches election law at Ohio State.

Foley said part of Miller’s problem is that he has lost so consistently and overwhelmingly on the state level. The Alaska Supreme Court unanimously upheld the finding of a state Superior Court judge that the state elections director ran the ballot count correctly. Foley said a federal judge might have given it more consideration if the Alaska Supreme Court were divided. But he said it is highly unlikely that the federal courts would upend the entire state process.

Hasen, who teaches election law at Loyola Law School in Los Angeles, wrote an analysis of the Alaska Supreme Court ruling and concluded that Miller’s remaining prospects are poor.

“He can go back to federal court, which has held up certification, to argue an equal protection or due process argument. It is hard to see how either argument gains much traction after this case,” wrote Hasen on his Election Law Blog.

Miller could also appeal directly to the U.S. Senate to overturn Alaska’s election. Hasen and Foley agreed that was a politically and legally unrealistic option.

Miller suggested Thursday that he might also pursue an “election contest” in state courts. That’s where a defeated candidate argues there was misconduct by an election official egregious enough to change the results of the election.

The state courts have already dismissed most of Miller’s allegations of election fraud. But Miller made his claim that an unknown number of felons wrongfully voted after filing his lawsuit, and the courts have not ruled on that issue.

The state argues the claim is baseless and that the only felons who voted were those who had their voting rights reinstated. The elections division said it compares voting rolls weekly with the Department of Corrections and purges those who lost the right.

But the Alaska Supreme Court said Miller could try to press the claim as an election contest in state Superior Court. Miller would have to prove misconduct and that enough votes were illegally cast to change the outcome. It would be impossible to know who the felons voted for. So the most Miller could hope for is to get the courts to force the state to toss out ballots proportionally to the number of votes cast for each of the candidates.

“In light of our other rulings and the current voting tally, it appears to us that the number of votes in question would have to be in the tens of thousands to change the result of the election,” the Alaska Supreme Court said in its ruling this week.