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Joe Miller's Legal Argument: If You Misspelled Murkowski, It Was A Protest Vote Against Her

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Newscom / Splash News

Miller's lawsuit asks for an injunction and for a hearing to be held today, in an attempt to stop the state from "counting or otherwise accepting as valid any write-in ballots in which the name of the candidate is spelt [sic] incorrectly, or on which the name of the candidate is not written as it appears on a write-in declaration of candidacy."

The Alaska Division of Elections (DOE) is scheduled to begin counting the write-in ballots today at 1 p.m. ET despite the lawsuit.

The state has said that it will attempt to determine "voter intent" when examining the ballots, which might include counting votes that contain "minor misspellings."

Lt. Gov. Craig Campbell has argued that "the courts have been very clear for the last 25 years that voter intent is important. You do not want to disenfranchise voters over a technicality." Miller has previously accused Campbell of bias when it comes to overseeing this election.

Miller's lawyer is Thomas Van Flein, an Anchorage attorney who has been a longtime representative of Sarah Palin. He argues in the suit that state law stipulates that write-in votes may only be counted "if the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided." The law doesn't specify about spelling, but Van Flein argues that it disqualifies misspellings since "the statue does not provide that a 'reasonable approximation' or a 'close variation' or 'something that could be interpreted as the candidate's name' is sufficient."

In addition, the suit says that because the guidelines set forth by the DOE don't provide sufficient guidance for how to determine "voter intent," it leaves room for each group of ballot counters, of which there are 15, to reach different interpretations.

Citing Bush v. Gore, the suit argues that this is unconstitutional:

The U.S. Supreme Court has held that a policy directing election officials simply to attempt to ascertain "the intent of the voter" when deciding whether, or how, to count ballots is "unobjectionable as...a starting principle," but is not constitutionally sufficient. Bush v. Gore, 531 U.S. 98, 105. The Equal Protection Clause requires state officials to establish much more "specific standards" and "uniform rules" in order to prevent "the standards for accepting or rejecting contested ballots" to vary "within a single country from one count another" Id. at 106.

The majority opinion in Bush v. Gore, it should be noted, contained the caveat that the ruling would only apply to that particular case: "Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities." However, the opinion has since been used as precedent in several cases, including one in a November, 2008 6th Circuit Appeals Court decision regarding the Ohio voting system.

But perhaps the strangest argument Van Flein makes is regarding protest voters. "Prior to the election," he writes, "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."

"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," he argues. "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."

"A voter could write 'Liza Minnelli' as easily as 'Lisa Murkowski.' Every election cycle, there are stories of voter's writing in the names of celebrities or fictional characters as a means of protest," the suit argues, and "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."

The motion for a preliminary injunction can be read here, and the complaint is here (both are in .pdf form).