Miller Campaign Argues That Misspelled Murkowski Votes Are 'Protest' Votes For Miller

Way back when Lisa Murkowski decided to embark on her write-in bid for the Senate, she won a key ruling from Alaska's election director Gail Fenumiai: voters would not have to spell her name precisely in order for their vote to count, they merely had to get it close enough so that election officials could correctly surmise voter intent. How close? Per the Anchorage Daily News, "Just 'Lisa' might be a problem but 'Lisa M' would be acceptable, Fenumiai told the adn.com politics blog."

Naturally, finding himself behind in the raw vote to "Write-In Candidate," Joe Miller's campaign is working its legal mojo in an effort to get past this ruling, which they now see as the main obstacle to Miller taking the seat. Yesterday, Miller filed suit to "prevent the state from using discretion in determining voter intent on write-in ballots." This isn't especially surprising. But over at TPM, Josh Marshall flags part of Miller lawyer Thomas Van Flien's suit as being particularly "novel" and/or "preposterous."

...the 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 other words, per Van Flien, the correct way of interpreting a misspelled Murkowski vote is that it's actually a protest vote for Joe Miller. Which is, you know, a pretty long and complicated walk in the park as far as voter intent goes, considering that the best way to cast a protest vote for Joe Miller would be to just vote for Joe Miller.

Of course, the Murkowski campaign famously misspelled "Murkowski" on its own advertising, so maybe that advertisement was actually a protest advertisement for the Joe Miller campaign. Heck, maybe the entire write-in effort itself is actually a protest campaign for Joe Miller. Wheels within wheels, people.

I think that what this teaches us is that it must be really fun to craft utterly bogus legal arguments for a living.

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