December 22, 2010

Alaska Senate Update: AK Supreme Court Rules Against Miller
— Gabriel Malor

The last time we checked on the Alaska Senate race, Joe Miller had just had his state law claims tossed out by a state judge. He appealed that directly to the Alaska Supreme Court.

Minutes ago, that court affirmed the decision that the Alaska Division of Elections properly counted the write-in votes by adhering to the intent of the voter. The decision is available here (PDF).

Miller still has a case pending in the federal courts, but that was only to maintain the federal injunction on certifying the results. That judge already indicated he would defer to the state court's interpretation of state laws. So unless Miller raises some constitutional claims -- that would be U.S. constitutional claims -- he's finished.

Will be back with more after I've read the decision in full.

Later: Okay, the part where I'm insufferably smug is tucked below the fold. Remember that Patterico and I disagreed about the likely outcome. He had a spot-on statutory analysis, but I suggested constitutional concerns about the right to vote, the disfranchisement caused by strict application of the exact-spelling rule, and long-standing Alaskan "intent of the voter" jurisprudence would overcome the statutory analysis.

Here's what the Alaska Supreme Court wrote:

We start with the bedrock principle that “[t]he right of the citizen[s] to cast [their] ballot[s] and thus participate in the selection of those who control [their] government is one of the fundamental prerogatives of citizenship.” The right to vote “is fundamental to our concept of democratic government.” . . . We have applied this principle throughout the years because we recognize that the right to vote is key to participatory democracy. Guided by this polar principle, we declared in Edgmon v. State, Office of the Lieutenant Governor, Division of Elections that “the voter shall not be disenfranchised because of mere mistake, but [the voter’s] intention shall prevail.” Most recently, in State, Division of Elections v. Alaska Democratic Party, we noted that “[w]e have consistently emphasized the importance of voter intent because the opportunity to freely cast [one’s] ballot is fundamental.”

. . .

But it is MillerÂ’s interpretation of the statute that would erode the integrity of the election system, because it would result in disenfranchisement of some voters and ultimately rejection of election results that constitute the will of the people. We have consistently construed election statutes in favor of voter enfranchisement. . . . In order to ensure that each citizenÂ’s vote is as meaningful as every other vote, we must interpret the election statute to preserve a voterÂ’s clear choice rather than to disenfranchise that voter.

That's the heart of the exact-spelling rule portion of the decision. If you're interested, I encourage you to read the decision itself. It also considers Miller's more technical claims under the Equal Protection clause and the Administrative Procedures Act, as well as his late-pleaded fraud claims.

One notable portion for the lawgeeks, this court did not mention that Murkowski would have won the election even if he won the lawsuit, as the lower court did. That was pointed out as a central flaw of the decision below, because if that were the case, the lawsuit would be moot and the decision impermissibly "advisory."

The other lawgeek thing to note is that, just as the U.S. Supreme Court did in Bush v. Gore the Alaska Supreme Court issued the decision "per curiam." That is, "through the Court" without listing which justice authored it or which members agreed. I suspect the reasoning was the same: to preserve, as much as possible, the public integrity of elections, the decision goes unsigned so as to distance it from complaints of partisanship.

Even later: The Alaska Supreme Court also ruled against Murkowski's cross-appeal. She wasn't part of the original lawsuit, but intervened to contest the Alaska Division of Voters' decision to not count ballots where her name was written in, but the write-in bubble was not filled. According to the judges, that requirement was unequivocal in the statute, and not amenable to statutory interpretation.

Posted by: Gabriel Malor at 01:36 PM | Comments (93)
Post contains 684 words, total size 5 kb.

1 This guy is acting like a Democrat.

Posted by: Apologetic California at December 22, 2010 01:38 PM (t4w+C)

2 Yeah, but he's a Republican, so he'll lose.

Posted by: kansas at December 22, 2010 01:39 PM (nNgbi)

3 It was a long-shot anyway. 

Thanks, Mr. Cornyn.  Your NRSC really helped there, huh?

Posted by: AllenG (Dedicated Tenther) at December 22, 2010 01:41 PM (8y9MW)

4 Such naive faith Miller had that the law as written would be upheld.

Posted by: Mark E at December 22, 2010 01:41 PM (p4p0k)

5 Was Miller arguing for or against Vaginal Steam Baths?

Posted by: t-bird at December 22, 2010 01:41 PM (kho+0)

6 Minutes ago, that court affirmed the decision that the Alaska Division of Elections properly counted the write-in votes by adhering to the intent of the voter.

In express contravention of the written law?

What am I missing here?

Posted by: AmishDude at December 22, 2010 01:43 PM (T0NGe)

7 Lisa Murcowski makes me ill.  May there be karma.  As to Miller, it was his to lose and he did.

Posted by: Totally Bummed at December 22, 2010 01:45 PM (ywrVa)

8 I wonder how many people who wanted Miller to win instead wrote in "Lizza Mercowsky", not realizing that those write-in votes would end up being counted as votes for the enemy-ski...

Posted by: mallfly at December 22, 2010 01:46 PM (bJm7W)

9 It's dead Joe

Posted by: Bones at December 22, 2010 01:47 PM (wai1i)

10 Murcowski Coke Bear, now there is someone who needs a vaginal steam.

She would probably request that cocaine be put in the steam.  Can you imagine her coked up vagina running amok through the halls of Congress?

Posted by: mpfs at December 22, 2010 01:49 PM (iYbLN)

11

Miller still has a case.

The US Consittution guarentees that States will have a REPUBLICAN form of Government... ie one where the written law is Supreme.

Now the State Court has simply over ridden the written law, by bringing in the standard of "voter intent"... thus Alaska now has... what... A Judiocracy? Rule by Judges?... but certainly not a Republic.

Posted by: Romeo13 at December 22, 2010 01:49 PM (AdK6a)

12 8 I wonder how many people who wanted Miller to win instead wrote in "Lizza Mercowsky", not realizing that those write-in votes would end up being counted as votes for the enemy-ski...

No, everybody knew their vote couldn't be wasted.  At least anybody who was savvy enough to do that.

Miller knows he's lost.  This is about principle and we're finding out just how corrupt Alaska is.  They won't even grant him his motion even though it won't effect the outcome.

Posted by: AmishDude at December 22, 2010 01:49 PM (T0NGe)

13 "I wonder how many people who wanted Miller to win instead wrote in "Lizza Mercowsky", not realizing that those write-in votes would end up being counted as votes for the enemy-ski..."

2

move on.....

Posted by: Master of None at December 22, 2010 01:51 PM (gyNYk)

14 The US Consittution guarentees that States will have a REPUBLICAN form of Government... ie one where the written law is Supreme.

I think I just discovered a solution to half our country's problems.  Every sitting Democrat in state offices is unconstitutional.

Posted by: If only conservatives had activist judges at December 22, 2010 01:54 PM (Ew1k4)

15 Miller shouldn't have distanced himself from Palin. She can take on Alaskas corrupt machine and win.

Posted by: blaster at December 22, 2010 01:54 PM (oqj8J)

16 8 I wonder how many people who wanted Miller to win instead wrote in "Lizza Mercowsky", not realizing that those write-in votes would end up being counted as votes for the enemy-ski... Probably not very many. This was all about the unions keeping their Pork Queen in office and said Pork Queen giving a big middle finger to Sara Palin.

Posted by: Bones at December 22, 2010 01:55 PM (wai1i)

17 /sock

Posted by: Nighthawk at December 22, 2010 01:56 PM (wai1i)

18 The US Consittution guarentees that States will have a REPUBLICAN form of Government... ie one where the written law is Supreme.

The state of Alaska does not have a republican form of government.  Judges are nominated by the "Alaska Judicial Council"

Alaska Constitution Article IV, Section 8 provides that the Judicial Council has seven members. Three must be attorneys appointed by the Alaska Bar Association. Three cannot be attorneys and are appointed by the governor subject to confirmation by the legislature. These appointments are for staggered six year terms, must be spread over different areas of the state, and must be made without regard to political affiliation. The chief justice of the supreme court is the Council's seventh member and chairperson.

The Alaska Bar Association is in NO WAY receptive to the electorate.  It is not even indirectly part of the government.  It is a corrupt cabal answerable only to it's members, the legal profession. 

Oh, and "made without regard to political affiliation" usually means "screaming lib."  They always manage to get into those nonpartisan spots, don't they?

In any case, a trade organization cannot have control over a third of a branch of government and have the government still be called a "republic".

Posted by: AmishDude at December 22, 2010 01:57 PM (T0NGe)

19 First Sarah took down McCain, now Miller.  Won't this woman get out of politics.  She is killing the GOP.

Posted by: Pelvis at December 22, 2010 01:59 PM (LlaBi)

20 Miller is now entering stalker territory. He needs to tear down the shrine to Murky in his bedroom, put away all the candles, throw out all the photos of her he clipped over the last year. He should start seeing somebody new. It's tougher for some to accept rejection than for others. But Miller is not doing us any favors by not going away.

Posted by: CoolCzech at December 22, 2010 02:00 PM (tJjm/)

21 While we're recapping this whole thing, remember the ballots that Miller was trying to throw out? Yeah, that's why he lost.

Posted by: Gabriel Malor at December 22, 2010 02:01 PM (XVaFd)

22 The law says misspellings should not count. So why are they counting them? Because officials and judges say they have clairvoyance to determine peoples INTENT? Is that what happened here? What is the cut off? 1 letter wrong? 2? 10? what?

Posted by: Dan at December 22, 2010 02:04 PM (1jzSs)

23 21 While we're recapping this whole thing, remember the ballots that Miller was trying to throw out? Yeah, that's why he lost.

You have to remember Minnesota, that's how you win these things.  You challenge everything that you can get away with, then it seems like a concession when the arbiter rules against you.

At the recount stage, there is no PR.  It's hardball.

Posted by: AmishDude at December 22, 2010 02:09 PM (T0NGe)

24 But Miller is not doing us any favors by not going away.

There was some concern, I think on Murkowski's part, that she would lose her seniority if Alaska doesn't certify her by the time the new Congress is seated.  I still don't know if there's any truth to that, but if there is, I can certainly appreciate the spite.

Posted by: Methos at December 22, 2010 02:09 PM (Ew1k4)

25 Well played, Sen. Cornyn.

I can now look forward to 2-years of sending-back your fund-seeking Business Reply Envelopes to NRSC headquarters - empty.

Posted by: DocJ at December 22, 2010 02:09 PM (AWzOz)

26 Later: Okay, the part where I'm insufferably smug is tucked below the fold.

And the part where I respond is between my index and ring finger. 



---

Miller knows he's lost.  This is about principle and we're finding out just how corrupt Alaska is.  They won't even grant him his motion even though it won't effect the outcome

Amen to that, AmishDude. 

Posted by: Y-not believes in reading between the lines at December 22, 2010 02:10 PM (IDL9N)

27 Exactly, Dan.  Who the hell are judges to determine intent?

The intent of the voter was exactly what the ballot says, no more, no less.

Posted by: AmishDude at December 22, 2010 02:12 PM (T0NGe)

28 Tough break. What are you gonna do?

Posted by: Republicans who kept Murkowski in her Position of Pork at December 22, 2010 02:14 PM (kho+0)

29 Posted by: Dan at December 22, 2010 06:04 PM (1jzSs)

Unfortunately it's a "know-it-when-you-see-it" kind of thing.  And we expect this from government at all levels in a lot of things.

If you're arguing the "voter intent" angle (which I don't, but could) then someone misspelling a name but getting it mostly right- especially when there has been some major news coverage about the one whose name they got closest to- would fall easily in the "voter intent."

That doesn't make this pill any less bitter- but it is actually a somewhat defensible position, with write-in ballots.

Trying to guess "voter intent" on a regularly marked ballot is, for obvious reasons, much more binary.  But write ins make things more complicated.

Especially if this wouldn't have changed the election, it's time for Mr. Miller to drop it.

And, be careful what you wish for in asking the government strictly to enforce the letter of the law.  Unless you never speed.  Or spit on a sidewalk.  Or jay-walk.  Which are things a vast, vast majority of the public does.

Posted by: AllenG (Dedicated Tenther) at December 22, 2010 02:15 PM (8y9MW)

30 21 While we're recapping this whole thing, remember the ballots that Miller was trying to throw out? Yeah, that's why he lost.

Posted by: Gabriel Malor at December 22, 2010 06:01 PM (XVaFd)

You mean those votes you wanted to claim were contested solely on spelling, but had no evidence what the standard was for contesting them.  I still would love to see an analysis of the writing of "Lisa Murkowski" in areas that wen overwhelmingly for her.  Anyone willing to lay odds on very little difference in thousands of people's handwritings?

But Gabe gets to talk all lawyer-y and be "above it all" and explain why the judicial system and lawyers in this nation have become such a worthless punchline.

Posted by: buzzion at December 22, 2010 02:16 PM (oVQFe)

31 Why not just get rid of write in canadicies?

Posted by: Flapjackmaka at December 22, 2010 02:18 PM (c5RQr)

32 The intent of the voter was exactly what the ballot says, no more, no less.

That is the crux of the decision. Miller wanted to throw out votes that read "Lisa Murcowsky." The intent of the voter is clear. That's why he lost (and why it was predictable).

Posted by: Gabriel Malor at December 22, 2010 02:19 PM (XVaFd)

33 "19 First Sarah took down McCain, now Miller.  Won't this woman get out of politics.  She is killing the GOP. Posted by: Pelvis"

Wow your incredibly dumb, he had no cred until Sarah endorsed him.  He defeated Murkowski in the primary and Princess Lisa was the one who violated the sore loser principle by creating a write in campaign.  I don't care how many times he beats that dead horse, he is entitled too.

Posted by: Africanus at December 22, 2010 02:22 PM (ygqbC)

34

That is the crux of the decision. Miller wanted to throw out votes that read "Lisa Murcowsky." The intent of the voter is clear. That's why he lost (and why it was predictable).

Posted by: Gabriel Malor at December 22, 2010 06:19 PM (XVaFd)

If this isn't in blatant violation of the law then when was there a need for them to violate the law before the election to have a list that would show the coke-bear's name spelled correctly at voting locations?

Posted by: buzzion at December 22, 2010 02:23 PM (oVQFe)

35 And, be careful what you wish for in asking the government strictly to enforce the letter of the law.  Unless you never speed.  Or spit on a sidewalk.  Or jay-walk.  Which are things a vast, vast majority of the public does.

I'm actually kind of consistent -- if you're not going to aggressively enforce a law, against all offenders, then get rid of it. Otherwise, it's just a tool that government uses against people it doesn't like. Or a tool by which its officers prove their superiority.

Posted by: Meiczyslaw at December 22, 2010 02:24 PM (bjRNS)

36 Posted by: Flapjackmaka at December 22, 2010 06:18 PM (c5RQr)

Nope, can't see any unintended consequences there.

Write in candidacies are actually useful as tools to help hold the major parties accountable.  I know this is only like the 2nd time its worked for a national office, but they work occasionally in state or local races.

And, don't forget, the Alaskans obviously wanted their pork-providing Lisa Murkowski more than they wanted sane fiscal government from DC.  If CA deserves what it gets, so does Alaska.

Posted by: AllenG (Dedicated Tenther) at December 22, 2010 02:24 PM (8y9MW)

37 those judges are all godddamned socialists Judicial activism must end NOW

Posted by: drizzler's battlefield buddy at December 22, 2010 02:31 PM (0YS61)

38 "Lisa Murcowsky." The intent of the voter is clear.

Yes.  To mock her.  Who are you, Kresken?

If the judges think the law is dumb...tough.  We have dumb laws.  That's the way it goes.  They should shut up and enforce them.

Do you see why I have a problem with lawyers?  They think they can make all of these decisions like Solomon.

Posted by: AmishDude at December 22, 2010 02:31 PM (T0NGe)

39 Posted by: Meiczyslaw at December 22, 2010 06:24 PM (bjRNS)

If that's your particular position, fine.  It's not mine.

I understand that, for instance, a speed limit can be (and, in many cases, is) a safety issue.  There are just some places you don't want people driving 100 mph.  However, since there's a wavy line of what's appropriate when and where, we have set speed limits which the police then largely ignore- until you've passed a certain speed over that limit, or until they pulled you over for something else and you start talking back to them, or whatever.

The thing about human nature and laws written by any government is that those laws can't cover every situation.  If you want them to do so, you start getting this mammoth State we've got now.  Contrariwise, if you accept that there are a lot of judgment calls in enforcing the law, you have to allow those judgment calls even when they don't go your way.

We also don't prosecute every murder for murder.  DAs often accept plea deals for lesser charges. 

It's not a perfect system.  I wish Joe Miller had won in November.  But, in any reasonable interpretation, the AK Supremes gave a reasoned, defensible decision.  I might not have made the same decision, but I can certainly see where they're coming from.

Now, if Joe Miller takes it to the US Courts- we'll see what happens.  As I said above, if it won't change the outcome, then it's not worth the fight.  If it would, and commenters here are right about the unconstitutionality of having a council appoint judges to the Supreme Court (it seems well enough reasoned to me, but I certainly don't know details), then he should keep fighting.

Posted by: AllenG (Dedicated Tenther) at December 22, 2010 02:32 PM (8y9MW)

40 Do you see why I have a problem with lawyers?  They think they can make all of these decisions like Solomon.

Posted by: AmishDude at December 22, 2010 06:31 PM (T0NGe)

Very well, we will take this Murcowski person, and cut her in half with a sword and...

Wait, isn't someone supposed to object about here???

Oh well..... /WHACK

Posted by: Solomon at December 22, 2010 02:33 PM (AdK6a)

41 Final update to the post above.

Posted by: Gabriel Malor at December 22, 2010 02:34 PM (XVaFd)

42

@18: "The Alaska Bar Association is in NO WAY receptive to the electorate.  It is not even indirectly part of the government.  It is a corrupt cabal answerable only to it's members, the legal profession."

Or not.... state bar associations are at least partially governmental.

http://tinyurl.com/3xk2tzv

From the Alaska State Bar's own website:

"The Bar is governed by a Board of Governors, with nine attorneys elected by the membership and three public members appointed by the governor.  The Bar is responsible to the Alaska Supreme Court for the admission and discipline process."

 

Posted by: Fa Cube Itches at December 22, 2010 02:35 PM (xy9wk)

43

Posted by: AllenG (Dedicated Tenther) at December 22, 2010 06:32 PM (8y9MW)

Yes, they constantly decide whether and how to enforce the law.

But when a Law is clearly written, and in force, they can't 'ignore' it and still be doing their jobs... otherwise we do not have any semblance to a Republic.

Posted by: Romeo13 at December 22, 2010 02:36 PM (AdK6a)

44 Lisa Murkowski?

Posted by: James Clapper at December 22, 2010 02:38 PM (KVjkC)

45

“is fundamental to our concept of democratic government.” . .

From the Court itself???

Uh... the US Constitution guarentees a REPUBLICAN form of Government, not a Democratic one...

Ergo, their reasoning is flawed, because a Republic is based on rule of the written law, a Democracy upon the will of the  people.

This says they are a Democracy, not a Republic... thus the will of the people overrides the written law???

This very finding can be challenged in the Federal Court.

Posted by: Romeo13 at December 22, 2010 02:40 PM (AdK6a)

46 19 First Sarah took down McCain, now Miller.  Won't this woman get out of politics.  She is killing the GOP.

Posted by: Pelvis at December 22, 2010 05:59 PM (LlaBi)


She took down McCain? I knew there was a reason I liked her.

Posted by: Unclefacts, Confuse A Cat, Ltd. at December 22, 2010 02:43 PM (eCAn3)

47

@49: "This very finding can be challenged in the Federal Court."

And get laughed right out of it. 

In theory, you're right.  As a practical matter, no.

Posted by: Fa Cube Itches at December 22, 2010 02:45 PM (xy9wk)

48 52

@49: "This very finding can be challenged in the Federal Court."

And get laughed right out of it. 

In theory, you're right.  As a practical matter, no.

Posted by: Fa Cube Itches at December 22, 2010 06:45 PM (xy9wk)

Yes... hate to do anything impractical, like Rebel from one of the worlds Great Super powers... oh... wait... that turned out OK...

 

Posted by: Romeo13 at December 22, 2010 02:47 PM (AdK6a)

49 I've been busy, so my apologies if the joke's been made already, but...

Mark your calendars, fag-hatin' Palin-humpin' white-baggers. Ace and the cob loggers' cycles have finally synchronized, and today is "sore nipples" day. If they're regular, they'll be sufferable again next Tuesday.

And I'll see y'all then.

Posted by: oblig. at December 22, 2010 02:48 PM (x7Ao8)

50 Alaska is still a suburb of Russia, even though bought and paid for.

Posted by: JustME at December 22, 2010 02:48 PM (CyPWX)

51 This makes a mockery of the reason for a write in, to declare you are supporting
the candidate, if you can't spell the candidate, specially if you've been voting this name for 30 years

Posted by: justin cord at December 22, 2010 02:50 PM (c0+w5)

52 Whether Miller hoped a decision would go his way is beside the point that he made visiting on The Fred Thompson Show. So far as Miller wanted to be a stickler, and not drop things until the Courts all ruled against his pleas, it was to get the judicial decisions laid out clearly all in a row for subsequent elections to have Alaskan clarity of electoral law. He said that as soon as things were to end up where they are now, he'd accept defeat.

There's no fault in waiting until the end of the line to get off the case. I'd wished that Norm Coleman would have fought a better recount battle before immediately pulling up his stakes to give up the ghost to Sen. Frankentoad's electoral fraud in Minnesota.

Posted by: maverick muse at December 22, 2010 02:55 PM (H+LJc)

53 Everyone hates a sore loser, even if there were shenanigans involved.

Miller should bow out and set his sights on the next available spot.

Or just go hide.

Posted by: TXMarko at December 22, 2010 03:01 PM (SgqY5)

54 She took down McCain? I knew there was a reason I liked her. LOL! You're a sharp one, uncle facts! I don't care what people say about you.

Posted by: CoolCzech at December 22, 2010 03:02 PM (tJjm/)

55 The thing about human nature and laws written by any government is that those laws can't cover every situation.  If you want them to do so, you start getting this mammoth State we've got now.

You miss my point. You've probably committed a couple of crimes today, and the only reason why the government would ever charge you is because you've gotten the attention of some random functionary. I'd rather those so-called crimes not even be on the books, so as to deny them the opportunity.

Posted by: Meiczyslaw at December 22, 2010 03:06 PM (bjRNS)

56 This last month and a half has reminded me of Carrie. Where the unpopular girl 'wins' the Prom Queen? But turns out it was just a setup for a really mean joke?

That's what's happened to all of us who thought we'd vote and we'd finally get our country back. NOT SO FAST! Says the Rinos and Democrat jocks.

We'll let you vote some rubes into office but WE'RE still the ones making the decisions around here and what WE want will get done and WE will get the credit for it. (Even the RINOS are being laughed at which is why Lindsay Graham got his panties all in a twist lately: he's figured out he's going to have to bend over for the next 2 years and still get primaried)

I am so disgusted at the Republicans and the Republican party right now, I'm almost willing to say I'm not voting for another Republican ever again.

They just didn't learn a damn thing from November.

Posted by: jakee308 at December 22, 2010 03:09 PM (fhTf7)

57 I weep for my State. Actually I'm pretty fucking mad and want to punch a liberal in the face.

Posted by: Bosk at December 22, 2010 03:14 PM (pUO5u)

58 #62, right on!!!

Posted by: R. Aurum Tar at December 22, 2010 03:15 PM (0uGRe)

59 59 Everyone hates a sore loser, even if there were shenanigans involved.

Miller should bow out and set his sights on the next available spot.

Or just go hide.

Posted by: TXMarko at December 22, 2010 07:01 PM (SgqY5)

Really?  Tell that to SENATOR Franken...

Can't win if ya don't fight...

Posted by: Romeo13 at December 22, 2010 03:16 PM (AdK6a)

60 58 Whether Miller hoped a decision would go his way is beside the point that he made visiting on The Fred Thompson Show. So far as Miller wanted to be a stickler, and not drop things until the Courts all ruled against his pleas, it was to get the judicial decisions laid out clearly all in a row for subsequent elections to have Alaskan clarity of electoral law. He said that as soon as things were to end up where they are now, he'd accept defeat.

There's no fault in waiting until the end of the line to get off the case. I'd wished that Norm Coleman would have fought a better recount battle before immediately pulling up his stakes to give up the ghost to Sen. Frankentoad's electoral fraud in Minnesota.

Posted by: maverick muse at December 22, 2010 06:55 PM (H+LJc)

How cute that he thinks that.  I get the feeling most of them would reverse every single one of these decisions were the bitch to ever face a situation where she is in Miller's position.

Posted by: buzzion at December 22, 2010 03:19 PM (oVQFe)

61
Arlen Specter was right -- if it wasn't for Christine O'Donnell and Sharon Angle the GOP would won a Senate majority.

Posted by: Ed Anger at December 22, 2010 03:20 PM (7+pP9)

62
This post sucks.

Posted by: the Green Soothsayer at December 22, 2010 03:32 PM (5ql/p)

63

VICTORY IS MINE!

YOU WILL ALL BE VANQUISHED BENEATH MY RIGHTEOUS UGG BOOTS!

Posted by: Empress Leeza Murkywurky, Sovereign of the Tundra Empire and Defender of the Holy Cocaine at December 22, 2010 03:36 PM (EEnvH)

64 Even the Rethuglikkkans voted for me. They intended to...that's what the court said. So all those votes next to R's get read as a D. Fuck you very much.

Posted by: b+rry at December 22, 2010 03:41 PM (pe5CP)

65 Next election cycle what matters will be voter intent. So if you intend to vote but didn't actually make it to the polls or forget to get an absentee, then what your intentions were will need to be divined, otherwise you are disenfranchised.

Posted by: kansas at December 22, 2010 03:41 PM (4FGpb)

66 67
Arlen Specter was right -- if it wasn't for Christine O'Donnell and Sharon Angle the GOP would won a Senate majority.

Posted by: Ed Anger at December 22, 2010 07:20 PM (7+pP9)

If you think the Maine Sisters and Morecokeski and their ilk are actually republikkkans...then ex-RINO Specter could be right.

Posted by: torabora at December 22, 2010 03:45 PM (pe5CP)

67 It seems to me that for the judges to make this ruling they would have to declare the Alaska Law unconstitutional. Did they do that?

Posted by: robtr at December 22, 2010 03:46 PM (hVDig)

68 imagine, gabe smug.......

Posted by: phoenixgirl at December 22, 2010 03:50 PM (eOXTH)

69

 Everyone hates a sore loser, even if there were shenanigans involved

Are you confused? That sounds like mulscursky, not Miller.

Posted by: Ronster at December 22, 2010 03:57 PM (9q4PA)

70
anyway...

there's a football game on Thursday & Saturday nights.

Posted by: the Green Soothsayer at December 22, 2010 03:58 PM (BPptn)

71 59 Everyone hates a sore loser, even if there were shenanigans involved.

Miller should bow out and set his sights on the next available spot.

Or just go hide.

Posted by: TXMarko at December 22, 2010 07:01 PM (SgqY5)


Apparently the voters of Alaska would disagree with that sentiment.

Posted by: Unclefacts, Confuse A Cat, Ltd. at December 22, 2010 04:05 PM (eCAn3)

72 Miller is still reaching for the Grail Cup and I'll bet even Sarah Palin is saying "Alaska...Let it go."

Posted by: CrustyB at December 22, 2010 04:20 PM (qzgbP)

73 "This very finding can be challenged in the Federal Court."

No, it really can't.

- An employee of the Federal Court system

Posted by: Knemon at December 22, 2010 04:22 PM (bWEOW)

74

So Gabe has brought about 100,000 people into the esoteric legal rationalization of a rather obvious case rendering in order to advise us that he is King for the Day to PatericcD'oh  - enough already.

Posted by: journolist at December 22, 2010 04:31 PM (LwLqV)

75 "It seems to me that for the judges to make this ruling they would have to declare the Alaska Law unconstitutional. Did they do that?"

No. 

The law says: "A vote for a write-in candidate . . . shall be counted if the oval is filled in for that candidate 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 it appears on" is - according to these judges - a phrase which must be interpreted.  99% of the people on this board (hi, Gabe!) will argue forcefully that it doesn't require interpretation, that it *plainly* (which in the legal sense means, basically, without interpretation) means "exactly as it is spelled on."

But the law doesn't *say* that.  It doesn't say "exactly as it's spelled."  It doesn't even say "exactly as it appears."  It just says "as it appears."  "As it appears" could be *interpreted* to mean "exactly as it is spelled" (derisively called the "perfection standard" by the defendant in the case, the state board of elections), or it could be *interpreted* to mean "so that the intent to vote for candidate X or Y can be inferred from it."

PDF Opinion p. 4: "[W]e hold that abbreviations, misspellings, or other minor variations in the form of the name of a candidate [will count], so long as the intention of the voter can be ascertained."

You might say that what tips the balance between these two interpretations is the court's own line of precedent, which says in general that "where any reasonable construction of [a] statute can be found which will avoid a wholesale disenfranchisement of qualified electors through no fault of their own, the courts should and will favor it."  PDF p. 3 (I had to switch the order of the phrasing up to make it clearer as a quote).

If there's any activism in it, it's that - but to take the opposite tack, and construct a line of precedent saying "where any reasonable construction of a statute can be found which will RESULT IN" a wholesale &c., would *also be activist.*

Law don't interpret themselves, always.  The requirement that each state have two Senators - that's not open to interpretation.  "Due" process - that is.

Posted by: Knemon at December 22, 2010 04:35 PM (bWEOW)

76

Loop >>> Me

Did I miss a post and/or conversation on the....umm....well...the

Wikileads Task Force

What? Was Protecting Military Secrets already taken?

 

Posted by: laceyunderalls at December 22, 2010 04:38 PM (HKj3n)

77 so if i don't make it to the polls on election day, but i intended to, does my vote count?

Posted by: reality man at December 22, 2010 04:46 PM (L2x1w)

78

The law says: "A vote for a write-in candidate . . . shall be counted if the oval is filled in for that candidate 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."

Look, I don't agree with peoples vote not counting but you are spinning off the globe with your and the judges interpretation. If the legislature wanted to say "voter intent" there was nothing stopping them from saying that. They didn't.

As for "as it appears" it only appears one way, you don't need to qaulify it. Regarding the candidates last name, that is only spelled one way, again there is no need to qualify it.

Some judges rule on what the law actually says and others rule on what they would like it to say.

The law in this case is clear if misguided.


Posted by: robtr at December 22, 2010 04:48 PM (hVDig)

79 "so if i don't make it to the polls on election day, but i intended to, does my vote count?"

No, because there isn't anything written on the ballot to infer the intent from.  But if you get to the polls, write in LISA MURKOWSK ... and then have a heart attack, your vote counts.

Posted by: Knemon at December 22, 2010 04:49 PM (bWEOW)

80 "As for "as it appears" it only appears one way, you don't need to qaulify it. Regarding the candidates last name, that is only spelled one way, again there is no need to qualify it."

The law doesn't say "spelled" anywhere.  "As it appears" does not strike me as the most useful way to write the law if your intent is to require exact spelling.

Spinning off the globe is to say refraining from commerce can be regulated *as* commerce, not to say that "as it appears" does not require exact spelling.

Posted by: Knemon at December 22, 2010 04:50 PM (bWEOW)

81 "Some judges rule on what the law actually says"

Which would be what, here?  If you squint, then L$ZV NCWSK! kinda "looks like" LISA MURKOWSKI - and "looks like" is a possible meaning of "as it appears."

I agree with you that "exactly as it's spelled" is less of a stretch - but it's still a stretch.  Again, think about the Constitution: "two senators" really isn't open to interpretation, nor is "the first Tuesday in November."

"Reasonable" (as in "unreasonable searches and seizures") is.

Posted by: Knemon at December 22, 2010 04:53 PM (bWEOW)

82 Re: 82 I think everybody was too preoccupied with the vajayjay steam bath post to notice.

Posted by: Nighthawk at December 22, 2010 04:55 PM (wai1i)

83  "as it appears" does not require exact spelling.

Posted by: Knemon at December 22, 2010 08:50 PM (bWEOW)

"as it appears" requires exact spelling. "kinda  like it appears" does not. A persons last name is only spelled one way. It says the candidates last name. You don't have to qualify it because it's absolute, there is no other way to spell it.

Posted by: robtr at December 22, 2010 04:58 PM (hVDig)

84 "A persons last name is only spelled one way."

I agree, and if the word "spell(ed/ing)" were in the law, there'd be no defensible way to interpret it otherwise.

It's not.

Some judges see themselves as interpreting the words of the law in a vacuum.  Other judges - Thomas is more of this second kind, Scalia can veer in to the first - see themselves as looking for the meaning of the words as they were originally meant and understood.  Others - mostly lefties like Brennan or RINO-lefties like Stevens, but not all - try to get further back than that and go for the intent or more general "purpose" of what the legislator was trying to do.

And yes, some judges are hacks who know what side their bread is buttered on.  But there are some very good judges (in the country at large, can't speak to SCOAK) who were appointed by Democrats and are lefty (or at least left-of-center) in their personal views, but are able to keep it in check.  Jose Cabranes is one.  And there are some judges who are hacks on the right.

Way more on the left, I agree, and that's one of the reasons why I'm *not* on the left.

Posted by: Knemon at December 22, 2010 05:09 PM (bWEOW)

85 Cabranes, by the way, is as close to an actual centrist as you'll find in the country today - certainly on its courts.

Longtime government functionary and then *sociology professor* (!!), appointed by Clinton, he's nevertheless been quite fair on the whole and was the one who blew the whistle on Sotomayor's (his then-colleague on the Second Circuit) and company's shabby summary dismissal of the Ricci claim.

If only all Democratic appointees were like him ...

Posted by: Knemon at December 22, 2010 05:11 PM (bWEOW)

86 Tough to support that ruling; the law doesn't give the elections guys the power to interpret votes. If that's what they wanted, the legislators should fix the law, not rely on a judge to say "well close enough" and wave his hand.

Posted by: Christopher Taylor at December 22, 2010 05:23 PM (61b7k)

87

Dino Rossi, Joe Miller, Carly Fiorino, Sharon Angle, Christine O"Donnell.

Sarah Palin and the Tea Partiers sure knew how to pick them, didn't they?

Their only candidates who won were candidates who were already way out ahead in the polls before they were endorsed by SP and a TP, who helped no one, and who, in fact, did more harm than good, which was why they got so much hype from the MSM, gleeful that the TP's and SP were such fuck-ups.

Posted by: Brian at December 22, 2010 10:38 PM (sYrWB)

88 Neither Rossi nor FiorinA were Tea Party candidates.

Posted by: Knemon at December 23, 2010 04:55 AM (bWEOW)

89 Seeing as how MurKennedy has voted so far for everything on Ogabe's wishlist, proving herself to be a Democrat in Douchebag's clothing, all I can say is:
Fuck you, Alaska.  If you want to be commies so bad, how about we sell your dumb asses back to Russia?

Posted by: baboy at December 23, 2010 02:06 PM (0w4Ig)

Posted by: asics shoes at December 23, 2010 10:04 PM (Uw8og)

91

#103 @ 8:55 am on 12/23/10

After conducting hasty research, I'll concede that point to you, but with a caveat that, if you Google that issue, you will get conflicting opinions, perhaps because, unfortunately, the MSM chose to associate those two candidates with Tea Partiers for the MSM's own sleazy purposes ...., which becomes only that much more disingenuous, misleading and appalling in the case of Carly Fiorina, incidentally, when one recognizes the extent to which that unprincipled woman prostituted herself by repeatedly praising that sleazy street hustler, Jesse Jackson, in her sleazy attempt to get support from black communities during her campaign.

People ridicule Christine O'Donnell. But in my opinion, Carly Fiorina was the sleaziest and the least qualified candidate who ran in that election.

Chuck DeVore was the best candidate for that Senate seat and the one who was endorsed by Tea Partiers, the latter of which I didn't realize, however, until I researched it, because I don't think that the MSM ever mentioned that he was the Tea Party's candidate. Or if they did, I missed it, as did a lot of other people, too, to be sure. 

I appreciate your reply. It got me to reassess my position on that issue.

Posted by: Brian at December 23, 2010 11:02 PM (sYrWB)

92 I want to rephrase that from the least qualified to the most inappropriate candidate run by Republicans.

Posted by: Brian at December 23, 2010 11:18 PM (sYrWB)

93 What was bizarre about Carly Fiorina's relationship with Jesse Jackson was that one could surmise that the basis for their friendship was that there was at least an appearance that Jesse Jackson had tried to extort money from Hewlett-Packard when Fiorina was H-P's CEO, the impropriety and mysterious circumstances of which raises more questions about Fiorina's ethics and competence. Gee, why am I not surprised that she was endorsed by that other sleazy opportunist and Rino, John McCain?

Posted by: Brian at December 23, 2010 11:32 PM (sYrWB)

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