Alaska Republican Joe Miller is caught in a tight race with incumbent and write-in candidate Lisa Murkowski over Alaska's Senate seat, and as a result, he's doing his best to try to disqualify as many write-in ballots as possible. Josh Marshall notes that the suit filed by the Miller campaign basically asks election officials to treat misspellings of Murkowski's name as "protest votes" that shouldn't be counted as votes for her. Miller wants only those write-in ballots with exact spellings of Murkowski's name to count:
[T]he new policy makes no provision for the many voters who cast protest votes. Prior to the election, people commented on radio stations and in the comment sections in blogs and newspaper stories that they would deliberately incorrectly write-in a variation of "Murkowski" as a protest. They did so knowing that Murkowski was spending hundreds of thousands of dollars on a "spelling bee" campaign, replete with wrist bands, pencils and tattoos, all to educate the voters on proper spelling. Why was this done? Because even Murkowski had read the law and knew that it required proper spelling -- "No exceptions." So protest voters were trying to send a message to the candidate. The state has failed to create any guideline or standard that would account for the intent of the voter who intentionally cast a protest vote. To the contrary, the state is indicating that it will now count a protest vote, deliberately cast with a misspelling as a vote for Murkowski. This effectively nullifies the protest and falsely inflates the vote for the write-in candidate. In short, the state has become a super-voter and will override voter intent and recast the votes for the candidate the state chooses. This is at core a fraudulent abuse of the electoral process and severely undermines our democratic process. It makes a mockery of the voting process -- allowing voters to believe they cast a protest vote, but then overriding that vote by state fiat.
This is laughably cynical on its face, but no more so in context. Miller's lawyers cite Bush v. Gore, stating that "The Supreme Court has held, however, that a policy directing election officials simply to ascertain the "intent of the voter" in deciding whether, or how to count ballots is "unobjectionable ... as a starting principle, but is not constitutionally sufficient."
If you'll remember, though, Bush v. Gore involved ballot construction in which voter intent would be hard to discern, such as ballots that had more than one candidate marked, multiple "dimpled chads" etc. -- the intent of someone voting for a "Lissa Murkowsky" is far easier to figure out. There needs to be some kind of clear, uniform standard, but Miller's lawyer is arguing for disqualifying ballots marked with mere minor misspellings.
Moreover, Miller's lawyer isn't really dismissive of voter intent; he's just substituting the least likely possibility for why a voter might misspell Murkowski's name on a ballot for the most likely one. He's very interested in interpreting voter intent, just as poorly as possible. He's then saying that unless the state adopts the least possible likely interpretation of voter intent, then it's undermining the democratic process. A shorter version of this argument is that if you can't spell, your vote shouldn't count, and any interpretation of the write-in votes that doesn't end in Joe Miller being elected senator of Alaska is illegitimate.
Election-law expert Rick Hasen, however, writes that Miller's other claims may have merit, in particular his argument that changing the rules for how the ballots are counted at the last minute violates his right to due process. On the matter of write-in misspellings, he notes that a previous Alaska court ruling stated, "The right of the citizen to cast his ballot and thus participate in the selection of those who control his government is one of the fundamental prerogatives of citizenship and should not be impaired or destroyed by strained statutory constructions."
