Former Lieutenant Governor Says Election Law Should Be Enforced

Anchorage, Alaska. November 19, 2010 — The Joe Miller Campaign filed its reply memorandum in support of a Motion for Preliminary Injunction yesterday to delay certification of the US Senate Election until a series of voting irregularities, that could affect the ultimate outcome of the Race, are addressed by the Division of Elections (“DOE”). The campaign asked a US Federal Court for the injunction in a pending case which seeks to determine the standard by which write-in votes are counted.

The Motion argues that the DOE moved the date of the count up and started counting earlier than expected which forced the Miller Campaign to fly many volunteers down to Juneau and prepare them for the vote challenge after the count had begun. “The necessity for volunteer challengers resulted from the fact that the DOE declared a standard other than the Alaska Statute which explicitly addresses what constitutes a valid write-in vote (AS 15.15.360 (11)). To this end, the Motion for Preliminary Injunction included an Affidavit sworn by former Lieutenant Governor Loren Leman, explaining how the DOE’s use of a standard other than the Alaska Statute is a deviation from established protocol that should be followed and therefore a political decision.

Leman stated in his affidavit: “If an election had been held during my tenure as Lieutenant Governor which write-in votes had to be counted, I would have directed the Division Director to follow a strict interpretation of election law, and let a Court direct otherwise if a candidate and the Court disagreed with the Division’s analysis.” He went on further to state: “Under my direction the Division would not have counted a write-in vote or accepted it as valid unless the candidate’s name was written correctly on the ballot, using the last name or the name as it appeared on the candidate’s write-in declaration of candidacy. The Division likewise would not have counted marred or otherwise damaged ballots.”

The affidavit supports the claim by the Miller Campaign that the standard being used for determining write-in votes is a change in practice and is solely the political decision of Lieutenant Governor Craig Campbell, originally an appointee of Governor Frank Murkowski. Campbell has instead decided to place the standard outside the bounds of the law and into the hands of an unelected bureaucrat, the Director of the DOE. This decision was made irrespective of the statute that clearly defines a legal standard for write-in votes, one that is entirely different than that applied by DOE over the past week.

Joe Miller addressed this by saying, “The problem we have here is that the current Lieutenant Governor, originally a Frank Murkowski appointee, has decided that the legislature’s law in this situation doesn’t matter. He has decided to make up his own law which pretty much gives the power to determine what votes should and shouldn’t count to one person (Gail Fenumiai), a person who is unelected and beholden to nobody but him. In doing so, he is establishing the precedent that Alaska’s Division of Elections is accountable to no law. Rather, the DOE will impose whatever standard the current Lieutenant Governor decides to impose, irrespective of statute. The ramifications of this situation go far beyond the current election. If the federal court chooses not to apply the law as written, Alaskans should be resigned to the integrity of elections being decided solely by the Lieutenant Governor’s commitment to the rule of law. In this case, that commitment is in serious question.”

The Miller Campaign will be filing an Amended Complaint and a separate Motion for Preliminary Injunction based on the unequal treatment the ballots received during the vote count. Lisa Murkowski’s were counted by hand, allowing those not automatically tallied by the voting machines to be reviewed and counted. If Miller’s ballots were given the same review, he will likely gain numerous votes.

The Miller Campaign is seeking to ensure that the rule of law is upheld and that every write-in vote is held to the standard defined by state law. The Campaign is asking the court to stay the certification so that all votes cast in Alaska’s U.S. Senate race be held to the same statutory standard.

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Miller: Integrity of the Vote is Vital

Anchorage, Alaska. November 17, 2010 — Joe Miller, U.S. Senate candidate, anticipates the end of the vote counting in Alaska today with the tallying of the overseas ballots. With over 255,000 votes cast, less than one percent of the vote total now separates Miller and Murkowski.

In order to ensure the integrity of the election results, the Miller campaign has requested, and the Division of Elections has now granted, the opportunity to review some precinct logs from throughout the state. Miller campaign spokesman Randy DeSoto said, “Our campaign has sworn affidavits identifying unsecured ballot boxes, other precincts where numerous ballots appear to be in the same handwriting, others where there is 100% voter turnout and still other precincts where the ballots were sent to the Division of Elections presorted by U.S. Senate candidate. These and other irregularities give our campaign pause. Alaskans must be able to trust the results of its elections.”

One important step in reviewing the results of the election is ensuring that the number of voters signed in the precinct logs on Election Day matches the number of votes being recorded from that precinct and that there is no evidence of voter fraud. Further verification of these totals will have to come from the tapes that the voting machines produce with a tally of the number of voters and the break down between candidates. So far the Division of Elections has failed to respond to the Miller request for these tapes.

The Miller campaign will be conducting its review of selected precinct logs tomorrow and possibly Saturday, and will want the voting machine tapes as part of its review. The Division of Elections has also begun its required audit of random precincts from all 40 districts throughout the state.

Additionally, the Murkowski write-in ballots have undergone a hand count review where spoiled ballots are being counted for her, whereas the Miller ballots have all been counted by machine with many valid ballots not being included.

Joe Miller said, “After all the absentee ballots are in and we’ve further reviewed the procedures and the results, we may ask for a recount. Less than 1% of the vote now separates my and Lisa Murkowski’s total. If there is a recount and a consistent standard is applied to all the ballots, who knows what the difference would be. We need to uphold the integrity of the vote and we need a consistent standard.”

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Division of Elections Grants Miller Campaign Access to Precinct Logs; Not Voting Machine Tapes

Anchorage, Alaska. November 16, 2010 — The Joe Miller campaign is pleased the Division of Elections will allow access to several precinct registers for review; however, the Division has not responded to the campaign’s request to review the voting tapes generated by the voting machines at the polling places. These tapes tally the total number of votes cast.

The Joe Miller campaign filed suit last Friday in state court in Juneau in order to compel the State to fulfill its legal obligations under the Public Records Act and allow inspection of the election registers from certain precincts that voters signed before casting their ballots. The Division of Elections had been unresponsive to the Miller request. The lawsuit simply asked that representatives from the campaign be given access to inspect the election registers.

Given the contested nature of the election, time is of the essence to ensure the vote count is trustworthy and that each valid vote is counted, and that there is no opportunity for fraud to taint the election results. Irregularities at polling places have been noted both Election Day and during the ballot review process including sworn affidavits testifying to unsecured ballot boxes and ballot envelopes arriving in Juneau presorted by the Senate race: these ballots are not to be handled in this fashion prior to the write-in review.

Miller Campaign Chief Counsel Tom Van Flein noted, “The campaign determined that inspection of precinct registers was an appropriate audit to spot check the process. The registers will provide data on the number of people who signed in to vote which can be matched with the number of votes tallied for each precinct.”

Another essential verification of the vote totals will be a review of the voting tapes created by the vote counting machines from the precincts. The Miller campaign has requested a review of the tapes from certain precincts, but thus far the Division of Elections has refused to respond to this request.

Miller campaign spokesman Randy DeSoto said, “The review of these tapes will help ensure the accuracy of the vote count. The Alaska Democratic Party brought suit against the Division of Elections in 2006 because of the wide variation in the Division’s “Official Results Statewide Summary” and the “Statement of Votes Cast” reports. The Democratic Party’s complaint noted in 2004 there was a 77,546 vote discrepancy for Lisa Murkowski between the two reports. We want to avoid any such reason to doubt the results in this election.”

DeSoto added, “At the end of six days of ballot counting, the race between Joe Miller and Lisa Murkowski is still very close. The number of Joe Miller votes is 90,448, while the number unchallenged votes for Lisa Murkowski stands at 84,563. If current trends continue, Murkowski’s final unchallenged tally will be in close proximity to Miller’s total. Additionally, there are hundreds of ballots yet to be counted including those from overseas military personnel, which may draw the overall numbers between the Miller and Murkowski even closer. The race is far from over.”

Miller Still Leads In Uncontested Ballot Count

Anchorage, Alaska. November 14, 2010 — After 5 days of write-in ballot counting, Republican nominee Joe Miller still leads incumbent Lisa Murkowski in the uncontested write-in ballot count. As of Sunday night, 88,076 of the total 98,565 write-in votes have been counted and Miller has 87,517 uncontested votes and Murkowski only has 78,697. If current trends hold, Miller and Murkowski will likely end up in a dead heat in the uncontested ballot count.

Tomorrow, approximately 8,800 absentee ballots are due to be counted as well as 1,000 overseas (mostly military) ballots. Miller has had a very strong showing in the absentee ballots and particularly among the military community. Miller campaign spokesman Randy DeSoto said, “If previous trends hold for the absentee ballot count, it is possible for Joe to gain as many as 1,000 votes against Lisa Murkowski tomorrow.”

The next issue will be determining the standard to apply for ascertaining the validity of challenged ballots. Desoto said, “The obvious standard must be the law. We are a nation of laws, not of men.” DeSoto also explained that, “The Lieutenant Governor, following the announcement of Lisa Murkowski’s write-in candidacy, stated that the law would be applied, as written. We expect to hold the state to the law. The time and place to alter the law is in the legislature. The Division of Elections’ actions here to modify clear law is troubling and concerning. After 50 years of state elections, the Division of Elections has all of a sudden adopted all sorts of new procedures just for this election. We are watching this to ensure this election is transparent, fair and legitimate. So far, what we have seen, should give the voting public pause.”

The law in Alaska is clear: “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.” [AS 15.15.360 (11)]

The law also states (in a provision conveniently ignored so far by the State and Murkowski) that “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.” [AS 15.15.360 (b)]. For reasons never explained, the State and Murkowski now claim that, even though the law bars exceptions for everyone else, there will be exceptions for Lisa Murkowski. Said Joe Miller, “We need one standard for everyone. It makes no sense to create all these new exceptions just for Lisa Murkowski. I have said from the beginning, I want a fair election and I want the law followed. I don’t think that is too much to ask.”

DeSoto added, “Lisa Murkowski spent hundreds of thousand of dollars on her spelling bee ad making it very clear that she knew what standard was expected and what had been applied for decades in this state prior to her write-in bid. She spent tens of thousands of dollars on wristbands, pencils, brochures, and temporary tattoos emphasizing the need for proper spelling. She even convinced the Division of Elections to provide (and went to court to make sure it continued to provide), for the first time in 50 years and, in violation of its own regulations, a write-in list so that voters would know how to spell her name properly. Then, the Division of Elections took the extraordinary step of changing the standard, just 36 hours prior to the start of the count to a newly created “voter intent” and/or phonetic standard.” Miller observers have seen the Division of Elections apply the statute’s standard (“name, as it appears on the write-in declaration of candidacy”) to other declared write-in candidates while applying the voter intent/phonetic standard to Murkowski’s. DeSoto noted, “The integrity of the vote is at issue. The people of Alaska need to know the law is king, and just because you’re a Murkowski doesn’t mean that the rules get changed to your benefit.”

The Miller Campaign has filed a suit in federal court last week to uphold the rule of law in Alaska. The brief from the state of Alaska is due tomorrow and Miller’s is due November 18th.

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Miller Chides Murkowski for Failing to Support Election Law

Anchorage, Alaska. November 12, 2010 — Today Joe Miller responded to Lisa Murkowski’s attacks on voters. “I am disappointed Murkowski endorses a complete disregard for state law. Murkowski mocks the very write-in process she invoked by now claiming it is not a spelling or penmanship test,” Miller said.

On September 15, 2010, Lt. Gov. Campbell issued a press statement confirming that the state statutory law would in fact be followed. This was in response to the Director of the Division of Elections statement that she intended to disregard the statute and instead apply her own interpretation to the ballots cast.

Prior to November 2, Murkowski sued the State to get her name printed on a voter list to be posted at every precinct. She did that and argued that, without such a list, a voter might misspell her name and the vote would not count. Murkowski knew what state law was prior to November 2, as did the Lt. Gov.

Now, after all the votes were cast, after a candidate list was posted by court order at the polls, after Murkowski spent hundreds of thousands of dollars on advertising proper spelling, wrist bands, tattoos and pencils, now Murkowski claims that the law does not matter. For a person seeking to return to Congress to make laws, this is disturbing, inept and hypocritical.

Said Miller, “We are a nation of laws. Murkowski seems to think the laws are malleable, and she can pick and choose which ones she wants to follow and which ones she will violate. Murkowski continues to represent everything that is wrong with D.C. Her beltway attitude, that the laws only apply to the rest of us, is unfortunately too common in D.C.”

Finally, Miller noted that “I have stated all along. I want the law followed. If I win this, I want to win this fair and square. One would think Murkowski would have the same goal.”

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Miller Forced to File Suit to Get Records

Anchorage, Alaska. November 12, 2010 — Today, Joe Miller filed suit in state court in Juneau (see complaint here) in order to compel the State to fulfill its legal obligations under the Public Records Act and allow him to inspect the election registers from certain precincts that voters signed before casting their ballots. Joe Miller said, “The election registers are public records, and there is no excuse for the State attempting to keep them confidential and shield them from public scrutiny until after the vote count is over.” He added, “The public must be permitted to inspect the election registers in a timely manner, before a winner is declared in the U.S. Senate race, in order for the electoral process to remain open, transparent, and fair.”

The Miller campaign consistently has maintained that every valid, lawful vote should be counted. Allowing public inspection of the election registers provides a vital check that helps ensure that legitimate votes are not improperly diluted by illegally or fraudulently cast votes, and  that the results of the election are not tainted by mistake or irregularity.

According to the campaign’s chief counsel, Thomas Van Flein, “The State has an absolute duty to disclose crucial public records such as these election registers in a ‘timely, reasonable, and responsive manner.’ During a contested election, timeliness becomes all the more crucial.” He noted that the lawsuit simply asks that attorneys and volunteers for the campaign be given access to inspect the election registers, rather than seeking to require the Division of Elections to make copies, so that Division personnel would not have to be diverted from counting the write-in vote ballots.

Said Van Flein, “I understand that the state said it is busy, but the needs of the public, and the interests of election transparency, require more effort than might otherwise be acceptable. It makes no sense to wait until after November 29 to give us access to records that could impact the validity of the certification process. Now is the time to deal with any potential irregularities, if any.”

Miller emphasized that the campaign was not seeking any private information about voters, or attempting to ascertain how anyone cast their ballot. “Inspecting the registers will allow us to simply count the number of signatures in each precinct, to ensure that no “extra” ballots materialized, and to compare the signatures from the polling places with those already on record, to ensure that the election was conducted in full compliance with state law. This is in essence a quality control check that should be routine for most elections.”

Campaign advisor Floyd Brown added, “We have a team in Juneau standing by to review these records. The matter is urgent. Timing is everything. We cannot be slow-rolled by the state on this. We were left with no choice but to ask a judge to order the state to get these records to the public so they can be reviewed.”

The campaign will likely be filing a motion for summary judgment early next week, along with a request for expedited consideration, asking the court to rule on its claim quickly. However, the campaign also hopes the State will simply allow the Miller team access and then this suit can be dismissed as moot.

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Joe Miller Advisor to Hold Press Conference

Juneau, AK- November 12, 2010 — Floyd Brown, Advisor to Joe Miller, the Republican Nominee for the U.S. Senate, will host a Press Conference & Availability at 3:30pm today.

Who:

Floyd Brown, Advisor to Joe Miller, Republican Nominee for the U.S. Senate

When:

Today – Friday, November 12, 2010

3:30pm

Where:

Old Litho Building (Write-in counting location)

101 Mill Street

Juneau, Alaska 99801

What:

Brown will give an update on the race and further address issues of voter fraud in the state.

For media questions email Randy DeSoto at randy@joemiller.us or Joe Koss at jkoss@joemiller.us

Voter Fraud Hotline Established

Anchorage, Alaska. November 11, 2010 — An advisor to the Joe Miller Campaign, Floyd Brown, today announced that, because of the many reports of possible voter fraud, he has opened a toll free voter fraud hotline allowing people to report any voting irregularities they witnessed. The toll free number is 1-866-446-4138.

Brown noted that “serious allegations of fraud, voter intimidation and voter bullying” have been surfacing since the election. Brown went on to state that “after the secret video of the illegal campaign rally by a federal contractor on Eielson Air Force base went national,” referring to a political event paid for by taxpayers, “we have received multiple reports of other potentially illegal campaign activity.” Brown added that, “To facilitate collection of this material for law enforcement or legal review, we thought it best to establish a centralized number where people could call, anonymously if need be, and leave information. We encourage any citizen who has a concern to call this number.”

In addition, Brown also declared that he “is confident that Joe Miller will be the next senator from the state of Alaska.”The confidence is based on the absentee votes continuing to break in favor of Miller combined with Brown’s expectation that ultimately the state will have to follow the actual statute imposed by the legislature when counting write-in ballots. Said Brown, “What I have witnessed in Juneau is nothing short of astonishing. A state employee is walking around a room, looking at ballots, and with a flourish of contempt and arrogance, “decides” what a voter “really” meant.” For example, the state is counting protest votes. One voter wrote in “Murkowitz” protesting both Murkowski and candidate Ethan Berkowitz. But the state, now in the role of a super-voter, has decided that negative protest votes will be instead re-voted as positive votes for Lisa Murkowski. This is the essence of a fixed election.

Lieutenant Governor Craig Campbell, the state official charged with overseeing the Division of Elections, could not even articulate what the newly created “voter intent” test looked like in actual application to the write-in ballots. In an interview with NBC News in Juneau yesterday he said, “There has been a lot of variation. It does get down to, if there’s more than one letter misspelled, if there are numerous letters misspelled, it may not sound like Murkowski to one person, it does to another, that becomes the issue that’s contested in courts.” This is exactly the sort of confusion the state of Alaska sought to avoid when it required the name to appear on the ballot as it does on the write-in declaration of candidacy.

The campaign has requested copies of the precinct registers. Campaign lawyer John Tiemessen was told that the state was “too busy” to get these, so the Campaign will be forced to ask a judge in Juneau to order the state to produce these registers. The purpose of this review will be to establish the number of voters who signed in to vote in a particular precinct versus the actual votes reported on Election Day.

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Court Orders State to Respond to Injunction Request

Anchorage, Alaska. November 10, 2010 — Today, in response to the Miller campaign’s motion for an injunction to compel the state to follow state law in balloting counting, the District Court judge ordered the State to file a response to the motion by November 15, 2010, and for the Miller campaign to file any reply by November 18. A hearing may be held after that.
 
The court reasoned that as long as the state of Alaska was segregating the challenged ballots, the legal issue regarding the validity of these ballots could be determined after the initial count was completed. Joe Miller said, “I am pleased the court will look at the issues we have raised. I would have liked the legal issues to have been resolved before there is a preliminary count, since the state cannot certify a winner until the court rules on the validity of the ballot counting process. So this will necessarily extend the actual final vote count until after November 18, as the vote count until then will be provisional.”
 
Counsel for the Miller Campaign, Thomas Van Flein, added that “The point of this is to make sure the rules, and the law, are followed, so that the winner of this election will be elected fairly and, in the eyes of the public, legitimately.” Attorney John Tiemessen, who has been monitoring the ballot count in Juneau, added “Watching the application of the newly invented “voter intent” standard has been troubling. We have seen first hand ballots ‘put on hold’ because the state employee could not figure out voter intent, but thought if they looked at the same ballot tomorrow or the next day, the ballot might be easier to understand. This is precisely the problem with having a state bureaucrat guess what a voter supposedly meant. In reality, the state bureaucrat is casting that vote. It is an issue the court needs to address.”
 

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Miller Seeks to Uphold Valid Ballot Count and State Law

Anchorage, Alaska. November 9, 2010 — Today, the Joe Miller for U.S. Senate campaign, was compelled to file suit in federal court in an effort to obtain an order forcing the State, Division of Elections, to comply with state law. Joe Miller said, “We asked the Division of Elections several times to comply with the clear legislative mandate regarding write-in ballot counts. The Division rejected the legislative statute, one that even told the Division in no uncertain terms that there shall be “no exceptions” to how the write-in ballots should be counted, and instead it substituted its own standards. This last minute change, created yesterday, besides being potentially unconstitutional, is troubling. Above all else, we want a fair election, and we want the law to be followed as written, not as a state employee wants it to be.”

The Miller Campaign has consistently maintained that every valid, lawful vote should be counted. It has further held to the expectation that the state laws, as written, should be followed, and that they should not be changed now, after the votes have been cast. Yesterday, the state issued a new policy–after the votes have been cast–imposing a new election standard for write-in ballots. The Campaign believes this action to be unconstitutional under the Federal Elections Clause governing senatorial elections and contrary to express legislative mandates.

The Miller Campaign filed a complaint and motion for preliminary injunction this afternoon in federal court. A hard copy of the complaint, motion, and motion for expedited consideration, were hand-delivered to the Attorney General’s office earlier today, to the attention of Dan Sullivan.

The Campaign has asked the court to order the state to respond by Noon tomorrow so we can have a hearing on this tomorrow afternoon.

According to campaign chief legal counsel Thomas Van Flein, the Miller Campaign is asking the federal court to order the Division of Elections to adhere to state law, and the objective standard implemented by the legislature. “It is our view that the state improperly deviated from the text of the statute, and is substituting a subjective “voter intent” standard and essentially repealing the legislative objective standard sub silentio,” said Van Flein.

Specifically, under the Elections Clause of the U.S. Constitution, the state legislatures have the exclusive legal authority to establish voting standards for federal elections. Van Flein elaborated that the “U.S. Supreme Court has interpreted this clause to bar both the state judiciary and the state executive branch from altering the legislative standards. In our view, by now imposing a “voter intent” standard even though the legislature stated emphatically “no exceptions,” the state executive branch has unconstitutionally usurped the exclusive prerogative of the legislative branch.”

Miller concluded by noting that “We want a consistent application of the law, not new standards created literally 36 hours before the vote count is to start and after all the votes have been cast.”