An Alaska judge will decide by Friday a case that will determine the fate of Republican Joe Miller's challenge to how write-in ballots were counted in the U.S. Senate race.
Judge William Carey will decide whether to grant the state's request to dismiss Miller's lawsuit or grant Miller's request to strictly enforce election law. He heard arguments for nearly two hours Wednesday.
A decision for Miller could result in thousands of challenged write-in ballots for Sen. Lisa Murkowski being reviewed and lead to a re-count, a prospect attorneys for Murkowski argue could leave Alaska with just one senator when the new Congress is sworn in.
Murkowski ran a write-in campaign after losing the primary to Miller. The unofficial tally, following a weeklong hand count observed by the Murkowski and Miller camps, showed her ahead by 10,328 votes, or 2,169 when excluding votes challenged by Miller. The state argues the math isn't in Miller's favor regardless of what the judge decides.
But Miller has raised concerns about voting irregularities that he says put enough ballots into question to possibly sway the election. His claims include similar-looking signatures on ballots, precincts where voters were allowed to cast regular ballots without providing identification and newly raised allegations about felon sex offenders being allowed to vote.
While the similar-appearing signatures could be due to voters requesting and receiving legally acceptable help in casting ballots, Miller's attorney, Michael Morley, told Carey the concerns are credible and substantial enough that a reasonable person would find them "disturbing."
Any decision is expected to be appealed to the state Supreme Court.
Miller, who attended Wednesday's hearing, has not conceded. He has maintained his challenge is less about win-or-lose for him than it is about principle, ensuring the law is upheld and Alaskans got a fair election.
The state believes that happened.
Assistant Attorney General Joanne Grace told Carey the case "is really a poster child for why the Legislature requires extremely high standards for post-election lawsuits. Mr. Miller is throwing in everything imaginable to claim that the election was not fair and that it's not final."
She said Miller has not met the burden for showing that there was any voting fraud or corruption. She also disputed his claim that the state failed to promulgate rules for administering the write-in count, saying special rulemaking wasn't necessary given the write-in review called for a "commonsense interpretation" of the law.
Miller wants the state held strictly to the law that calls for write-in ballots to have the oval filled in and the last name of the candidate or the name as it appears on the declaration of candidacy written in. The state, relying on case law, used discretion in determining voter intent, allowing for misspellings to be counted toward Murkowski's tally.
Murkowski attorney Tim McKeever argued that the ballot doesn't need a perfect spelling, just to seem to have Murkowski's name written in. He said that shows it was their intent to vote for her.
Morley said the law lacked mention of voter intent.
The state had asked Carey to rule by Thursday, to allow time for any appeals and to return to the federal court that had put a stay on certification pending resolution of the issues raised by Miller. Carey said he'd try to meet that but that it may be Friday before he rules.