Alaska Supreme Court Hears Oral Arguments in Miller Election Case

Anchorage, Alaska. December 17, 2010 — The Supreme Court of Alaska heard oral arguments today in Miller v. Treadwell. Appellate and election-law attorney Michael T. Morley argued for Joe Miller, the Republican nominee for U.S. Senate. Morley explained that the Alaska legislature established a clear, bright-line test for determining the validity of write-in ballots, to prevent bureaucrats and state officials from being able to affect the outcome of elections by deciding for themselves which ballots to count. He further argued that state law does not permit the Division of Elections to discriminate in favor of write-in ballots by allowing Division personnel to review thousands of write-in ballots that automated tally machines had rejected as invalid, while not doing the same for ballots cast for candidates who appeared on the ballot, such as Miller.

“The tenor of the Court’s questions shows that it believes we have raised substantial legal questions.” Miller commented. “All we are asking the Court is to apply the plain text of Alaska law as written.”

During the argument, Morley pointed out that the whole point of requiring write-in ballots to be spelled correctly is to prevent election officials from being able to decide for themselves which ones should be counted. “The legislature’s ‘correct spelling’ standard prevents thousands of ballot-by-ballot skirmishes over whether particular spellings are ‘close enough’ to be counted.”

The Court appeared particularly concerned about the fact that the trial court granted the State summary judgment on Miller’s claims, without even giving him a chance to seek discovery or gather evidence in support of them. “We presented numerous questions of fact to the trial court. According to official state records, thousands of people were permitted to vote without showing identification. Further, the handwriting on all the write-in ballots from several precincts was the same, or appeared to be written by only a few people.” Campaign spokesman Randy DeSoto added, “An initial review by our campaign revealed that several hundred convicted sex offenders voted, and we are concerned that this may indicate a wider problem with many hundreds or even thousands who voted who were ineligible to do so. The State wants the Court to allow it to ignore this troubling evidence, turn a blind eye, and simply hope everything was fine with the election, instead of allowing us to investigate these problems and give the public some degree of assurance that the election was conducted legally and fairly.”

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Miller Seeks Appellate Review

Anchorage, Alaska. December 13, 2010 — Today, the Joe Miller for U.S. Senate Campaign filed its Notice of Appeal with the Alaska Supreme Court. The Court has issued an expedited briefing schedule, whereby Mr. Miller’s opening brief is due tomorrow, and the State’s opposition brief will be due on Wednesday. Oral argument on the appeal is scheduled for Friday December 17, 2010. Mr. Miller is appealing portions of Judge Carey’s ruling, including the ruling that essentially modifies state law that previously required write-in ballots to match the candidate’s declaration form, but now, after Judge Carey’s ruling, such ballots will be counted as long as an unelected bureaucrat believes he or she can determine or guess what a voter intended.

Said Mr. Miller, “We have consistently asserted that the law should be followed strictly. The fact that the legislature stated that there should be “no exceptions” to the ballot counting method is what, in our view, should govern this matter. Under the current ruling, there are now over 8,000 exceptions, a result everyone who favors the rule of law should question.”

Miller campaign spokesman Randy DeSoto added, “In order to get a fair and accurate count we need a hand review and count of Joe’s ballots. Lisa Murkowski’s were reviewed and counted in this fashion, but Miller ballots not tallied by the voting machines–due to the ballot not being filled out properly–are not included in his count. With over 255,000 ballots cast (and a less than 1% difference separating Miller and Murkowski in the unchallenged count), this number could be significant. Additionally, we have sworn statements of machines in various precincts not functioning properly. Equal protection under the law requires that Miller’s ballots be counted in the same fashion as Murkowski’s, by hand.”

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Miller Asks Court to Invalidate the State’s Illegal Ballot Counting Rules

The Senate candidate also uncovers evidence of other apparent statutory violations

Juneau, Alaska. December 8, 2010 — Earlier today, Judge William Carey held a nearly two-hour hearing on challenges brought by Joe Miller, Republican nominee for the U.S. Senate, to the State’s handling of the 2010 general election. Miller asked the Court to rule in his favor on his claims that state law prohibits misspelled write-in ballots from being counted, and bars the State from discriminating against certain voters by applying much more lenient and favorable standards and procedures for determining the validity of write-in ballots than for other ballots.

Miller also maintains that the Alaska’s Administrative Procedures Act barred Lieutenant Governor Craig Campbell and Director of Elections Gail Fenumiai from simply imposing these decisions by fiat, rather than giving the public advance notice and allowing them an opportunity to comment on the newly created write-in ballot review guidelines.

Additionally, he submitted numerous affidavits establishing that several thousand people were permitted to vote, with no record that they showed proper identification, and that most or all of the write-in ballots from several precincts appear to have been filled out by the same person or a small group of people. He also submitted newly discovered evidence showing that at least several hundred convicted felons from the Alaska sex offender database were permitted to cast ballots, in apparent violation of the state’s voter disenfranchisement laws.

Miller explained, “This is not about my winning or losing. This is about upholding the integrity of the electoral process, and ensuring that the public can be confident in the results. The State cannot be permitted to flagrantly disregard nearly a half-dozen different statutes and make up new rules on the fly.”

Michael T. Morley, the Washington-D.C. based appellate and election law attorney who argued the case on Miller’s behalf, emphasized, “There is certain language used in federal law, in the law of our sister states, in the Alaska Administrative Code, and even in other portions of the very statute at issue that lawmakers use when they wish to allow misspelled ballots to be counted. The legislature specifically chose to omit such language from the provision regarding write-in ballots.”

Morley explained, “The legislature clearly did not intend to allow executive branch officials to decide for themselves which write-in ballots are ‘close enough’ to be counted. The statute should not be read as granting the Lieutenant Governor or Director of Elections the power to decide elections based on how permissive they choose to be regarding write-in ballots. Allowing such discretion would open those serving in the executive branch to accusations of making rulings that favor one candidate over another. The legislature decided to avoid this potential appearance of bias, by creating a clear, bright line test.”

Miller pointed out that the State is attempting to ignore a wide range of troubling evidence without conducting even a cursory examination. “When all of the write-in ballots from certain precincts appear to be in the same handwriting, most people would regard that as suspicious. When hundreds of people on the sex offender registry are recorded in election registers as having voted, most reasonable people similarly would conclude that someone should take a second look at that.” Pointing out that he already has submitted several affidavits from campaign observers providing evidence of these issues, Miller argued that the circumstances appear troubling enough to warrant further investigation.

“The State cannot turn a blind eye to this troubling evidence, simply assume that nothing improper happened, and certify an election potentially based on thousands, if not more, of illegal ballots,” said Morley.

The Court indicated that it likely would issue a ruling on the parties’ summary judgment motions on Friday, but stay the effect of any order it entered to allow the losing side to appeal to the Alaska Supreme Court.

“We are confident the court will enforce Alaska law as written, invalidate the illegal standards and procedures the State applied to write-in ballots, and allow us to obtain further information regarding the other apparent improprieties with the election,” Miller stated.

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Joe Miller Tells Begich to Get Back to Work

Fairbanks, Alaska. December 6, 2010 — Recently, Mark Begich issued a statement asking Joe Miller to drop his legal challenge to the election ballot issues. In response, Joe Miller said Begich should “get back to work and stop wasting time in D.C.” Joe Miller explained that Begich fails to understand either the legal issues or the reasons why the challenge has been made. Miller stated, “What is vital is that the people of Alaska can trust the election process. The Miller campaign has stated repeatedly, all we want is for all the votes to be counted in accordance with Alaska Statutes.” Contrary to Begich’s assertion, personal ambition has nothing to do with the legal issues, and such a statement “reflects a serious misunderstanding if not a complete ignorance about the election process and the issues involved. I think Begich would better serve Alaska by working on a budget that does not bankrupt our country instead of fiddling away while Rome burns,” said Miller.

Campaign spokesman Randy DeSoto added, “It should be of great concern that Mark Begich, who is so aligned with President Obama’s failed Big Government policies, feels so anxious to make sure Lisa Murkowski stands by his side in the Senate.”

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Court Holds Hearing, Postpones Ruling on Murkowski Intervention in Miller Lawsuit

Juneau, Alaska. December 1, 2010 — Alaska Superior Court Judge William Carey held a hearing today on Lisa Murkowski’s motion to intervene in the lawsuit brought by Joe Miller, Republican nominee for the U.S. Senate, challenging the legality of the process the Division of Elections used to count write-in ballots, as well as several other discrepancies and improprieties in the 2010 general election for U.S. Senate.

Because of serious questions concerning whether Ms. Murkowski’s legal interests are being adequately protected by the State, the court deferred ruling on the motion until tomorrow, and directed Ms. Murkowski’s attorneys to file a supplemental pleading. Murkowski’s attorneys argued that the State improperly rejected certain ballots—estimates ranged from a few hundred to approximately two thousand—that, they maintained, should have been counted for her.

“Murkowski has called into question even more write-in ballots cast in this election, further undermining the public’s ability to have any confidence in the Division of Election’s initial vote count. Even my opponent contends that the Division has failed to comply with Alaska law.” said Joe Miller.

Michael T. Morley, a Washington D.C. appellate and election law attorney representing Miller, explained, “The fact that the Murkowski campaign is now attempting to argue that a few hundred additional ballots should have been counted for her simply underscores how close this election remains, and how worried her campaign is that the court will invalidate the Division’s improper count.”

Commenting on the court’s postponement of a decision on Murkowski’s intervention motion, Morley commented, “Sen. Murkowski has not met the legal requirements for intervention set forth by the Alaska Supreme Court, particularly in a case such as this where the State is defending the legality of its own sovereign acts.” He pointed out that a potential intervenor must show that the State has colluded with the other side, has a conflict of interest, is refusing to do its job, or is not competent to proceed. No such allegations have even been made in this case.”

Miller emphasized, “Regardless of whether Ms. Murkowski is permitted to intervene, we are confident that the court will enforce Alaska law as written, invalidate the State’s illegal initial count, and require that every ballot be hand-counted in accordance with state law.”

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State Raises Concerns About Ballot Security; Court Transfers Case to Juneau

Anchorage, Alaska. November 29, 2010 — Today, Superior Court Judge Doug Blankenship issued a ruling transferring the election standards case to Juneau. The judge ruled that venue was proper in Fairbanks, Alaska, but he raised concerns about the many possible questions of fact that could be raised that would require a judge to personally review hundreds of ballots. In a somewhat troubling argument, the State of Alaska argued that it could not guarantee the chain of custody and security of the ballots if they were shipped from Juneau to Fairbanks.

“We all paused when the state Attorney General admitted to having security concerns about the ballots. We simply assumed the same security measures used to transport the ballots from Fairbanks (and from throughout the state of Alaska) to Juneau after they were cast would be used to transfer ballots from Juneau to Fairbanks, if that were necessary,” said Joe Miller. “But there was a noticeable quiet in the courtroom when the state’s attorney questioned their own ability to secure these ballots. We don’t know what to make of this at the moment,” Miller concluded.

In light of the State’s admitted security concerns, and its concerns about leaving the ballots in Juneau, the Miller campaign will not seek any review of the court’s decision today. “I think the important issue here is a question of law. Our main concern is a fair and accurate vote count, consistent with state law, is the outcome of these legal proceedings, whether in Fairbanks or Juneau,” said Miller campaign counsel Thomas Van Flein.

A status conference has been set for Wednesday afternoon in Juneau.

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Miller Files Court Response to Change of Venue and Intervention Issues

Miller Contends Murkowski Should Not Intervene as the State of Alaska is best-suited to Defend its Laws and Actions
Fairbanks, Alaska. November 26, 2010 — Today, Joe Miller, the Republican nominee for U.S. Senate filed an opposition brief to Lisa Murkowski’s request to intervene in the pending suit against Lieutenant Governor Craig Campbell regarding the manner in which state law is being applied to count write-in ballots.

The primary purpose of the suit is to address the standard used to count write-in ballots.  Miller relies on state law, but the Lieutenant Governor has created various exceptions to which Mr. Miller objects. Joe Miller said that, “the state is represented by the Attorney General’s office. It has many lawyers with election law experience and is perfectly capable, willing, and competent to represent the state’s legal interests in this case. Murkowski’s effort to intervene is not necessary or appropriate.” There is case law that establishes that there is a presumption against intervention by third parties when the state is defending its sovereign acts – as it is doing here.

Miller Campaign counsel, Thomas Van Flein, said, “Our briefs contend that the State is fully capable of defending its own positions. We also argue that Fairbanks is a better venue for this matter in that is where Mr. Miller resides, that is where he cast his vote, and Fairbanks is far more accessible to the public to monitor the court proceedings than Juneau.”

The court has set a hearing on these motions for November 29, 2010 at 1:15 p.m. The parties anticipate a ruling on both motions from the court by next week at the latest.

For more information contact Randy DeSoto: randy@joemiller.us

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Miller Calls on Lt. Governor Campbell to Fulfill His Duty

Anchorage, Alaska. November 24, 2010 — The Lieutenant Governor, with only two weeks remaining in his term, issued a press release yesterday vigorously criticizing the Miller campaign and its state court legal action that the federal court ordered to be filed by this past Monday.

Unfortunately, Campbell plays fast and loose with the facts in his press release. It was in his own court briefs several weeks ago where he argued vigorously for the use and distribution of a write-in candidate list at all of the state’s polling places, a first in Alaskan history. The trial judge found that these lists violated state law. Campbell then appealed to the Alaska Supreme Court and argued that providing these unprecedented write-in lists was necessary so that voters would not misspell Murkowski’s name and thereby have their votes counted.

This action was taken solely as a favor to Murkowski, for the purpose of ensuring that Murkowski voters spelled her name correctly – as Campbell understood the state write-in statute to require.

The fact that Campbell has now taken a position 180 degrees different from what he argued before the Alaska Supreme Court prior to the election is truly unbelievable. His accusation now, that the Miller campaign has wrongfully sought recourse in the courts, flies in the face of his own actions and statements. This position is also directly contrary to Murkowski’s original position as reflected by her advertising campaign that focused on spelling bees and wristbands.

The unfortunate fact is Campbell had two months to prepare for the write-in election rules but then waited until after the election, and just 36 hours before the write-in counting began, to issue his illegal written standards for review of the write-in vote. To make matters much worse, he then rushed the count date forward by over a week, seriously compromising the integrity of the count.

Had Campbell done his job in a neutral, competent, and lawful fashion, the Miller Campaign would not have needed to seek court assistance. Is it too much to ask that the Lieutenant Governor be unbiased and simply follow state law?

Campaign spokesman Randy DeSoto said, “The Lt. Governor is correct about one thing – if the questions raised by the Miller campaign are left unanswered, the public will lose trust in the election process in Alaska. Where we disagree is the source of this distrust. Currently the Federal Court seems to agree that we have raised ‘serious’ legal issues that must be resolved before this process moves forward.”

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Miller Campaign Complies with Federal Court Order and Files Suit in State Court

Anchorage, Alaska. November 22, 2010 — Today, the Joe Miller campaign filed suit in state court as directed by federal U.S. District Court Judge Ralph Beistline. Judge Beistline ruled on Friday that the Miller campaign had raised “serious constitutional questions” regarding the manner in which the state handled the ballot counting, and ordered a stay of certification of the election because those questions implicated “serious state law issues.”

The lawsuit presents most of the same issues that were before Judge Beistline. Specifically, because state law forbids the counting of write-in votes that do not match the name of the candidate as set forth in the candidate’s declaration form, and because the state legislature declared that there will be “no exceptions” to this law, the Miller Campaign is challenging the Division of Elections arbitrary decision to ignore this statute. Under the federal Constitution, only the state legislature can establish the voting standards for a senatorial election, and the state judiciary and state executive branch are prohibited, under the Elections Clause, from tampering with the legislative mandates. Nevertheless, the state ignored the legislative statute and instead came up with its own regulations, regulations that have never been applied in 50 years of statewide elections.

Campaign spokesperson, Randy DeSoto said that, “The state of Alaska successfully argued to the Alaska Supreme Court that a voter list had to be provided at each precinct because if the write-in votes were not spelled correctly, the ballot would not be counted. Now, after the election, the state is taking a different position, claiming the law does not really say what the state told the Alaska Supreme Court it did. This duplicity does not speak well for the Division of Elections.”

Joe Miller said, “We have consistently stated that the rule of law has to be followed. The state of Alaska, through its elections division, must respect the law enacted by the legislature. It is not enough that the Lt. Governor personally does not like the law. It is the law until it is amended or repealed by the legislature, and the failure to follow state law shocks the conscience of every voter who thought their vote would be counted in accord with law.” Miller added, “State law is not a lunch menu where the Lt. Governor can pick and choose which laws he likes and will follow and which ones he doesn’t like. Deliberate indifference to the law cannot be condoned.”

Campaign Chief Counsel, Thomas Van Flein, further noted that “we have also raised substantive and procedural concerns arising out of the state’s creation of a new voting regulation that was never publicized, never vetted for public input, and completely lacked an enabling statute. Under the state Administrative Procedure Act, the regulation should be declared invalid, and that is what the Complaint is seeking.”

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Federal Court Stops Certification of Alaska U.S. Senate Election Pending Resolution of Serious Legal Issues

Anchorage, Alaska. November 19, 2010 — Today the U.S. Federal District Court in Anchorage ordered the U.S. Senate race not to be certified until vital legal issues are resolved. The Court recognized serious statutory matters have been raised by Joe Miller concerning what standard of review should be used to count the write-in ballots. The Miller campaign has consistently held that the state law must be applied, as written. Its provisions could not be clearer: “A vote for a write-in candidate…shall be counted if the oval is filled in for that candidate and 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” and, “The rules set out in this section are mandatory and there are no exceptions to them. A ballot may not be counted unless marked in compliance with these rules.” The Division of Elections chose to ignore that clear standard and instead issued new guidelines concerning “voter intent” only 36 hours before ballot review began.

Federal District Judge Ralph Beistline in his ruling held, “In order to ensure that these serious State law issues are resolved prior to certification of the election, the Court hereby conditionally grants Plaintiff’s motion to enjoin certification of the election.” The Judge added, “[T]he results of this election shall not be certified until the legal issues raised therein have been fully and finally resolved.”

Joe Miller reacted to the ruling saying, “I am gratified to have Judge Beistline recognize that we have raised vital questions concerning the ballot review in this election. It is critical that these issues be resolved not only for this election, but for future ones in Alaska, as well. We are a nation of laws, and the law concerning this could not be clearer. We need the state law applied consistently to all ballots cast. We look forward to the state court’s interpretation of the relevant laws consistent with what the people of Alaska enacted through their state legislature.”

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