Fault and the Murkowski Voter: a Reply to Flanders

• Publication year: 2011

§ 28 Alaska L. Rev. 39. FAULT AND THE MURKOWSKI VOTER: A REPLY TO FLANDERS

Alaska Law Review
Volume 28, No. 1, June 2011
Cited: 28 Alaska L. Rev. 39

FAULT AND THE MURKOWSKI VOTER: A REPLY TO FLANDERS

Justin Levitt ^[*]

In the lead article for this Symposium, ^[1] Professor Chad Flanders presents in clear and compelling fashion the principal - and fascinating - questions raised by the attempt of the Alaska Division of Elections to offer a list of eligible write-in candidates to Alaskan voters during the 2010 United States Senate elections. In this short contribution, I use the final issue discussed in Professor Flanders' review as a convenient point of departure for a return to first principles.

As Professor Flanders describes, just days before the 2010 general election but after Senator Lisa Murkowski was defeated in the Republican party primary and then formally announced her intention to run for re-election with a write-in campaign, the Alaska Division of Elections sent a list of authorized write-in candidates to each polling place. ^[2] The list contained the proper spelling of each candidate's name as presented on his or her application for recognition as a valid write-in candidate. ^[3] Pollworkers were to retain the list and offer it to a voter if (and only if) that voter requested assistance with his or her write-in vote. ^[4]

The decision to send the list to the polling places was challenged by both the Republican Party and the Democratic Party as a violation of a regulation purporting to prohibit the provision of information at the polls regarding a write-in candidate. ^[5] But, as the Alaska Supreme Court determined, that regulation was ambiguous ^[6] and subject to a state statutory mandate to assist voters in need of help. ^[7] Ultimately, the court found that the Division of Elections was justified in providing a list of write-in candidates, purged of partisan affiliation labels, to allow voters to access the proper spelling of a candidate's name upon request. ^[8]

There is no need to assume that the strictly nonpartisan ^[9] Division of Elections wished to assist Murkowski's candidacy in order to explain its desire to provide the list. Murkowski filed her letter of intent to become a recognized write-in candidate for U.S. Senate on October 13, 2010, just 20 days before the election. ^[10] It is quite rare for write-in candidates to generate enough interest in the electorate to present a serious challenge to the candidates on the ballot; indeed, before Murkowski, the last person to win a U.S. Senate race as a write-in candidate was Strom Thurmond, who was elected as a write-in candidate in 1954. ^[11] Successful write-in campaigns are sufficiently rare that the Division of Elections might not have foreseen the need to tailor its regulations for such an eventuality.

Murkowski's campaign, however, presented a highly unusual chance of victory-and thereby two sizable concerns. First, her write-in campaign offered the unusual likelihood that there would be an abundance of questions about the write-in process from those who did not see Murkowski on the ballot. ^[12] A torrent of questions from confused voters to civic-minded volunteer pollworkers, in turn, risked the chance that pollworkers would flout a flat ban on information, unintentionally providing impermissibly persuasive information in an attempt to provide at least some useful help. ^[13]

Second, Murkowski's write-in campaign offered the unusual likelihood that the write-in entries could be outcome-determinative, resulting in high-stakes disputes over each write-in entry. According to the Alaska Statutes, write-in votes are counted if, inter alia, "the name, as it appears on the write-in declaration of candidacy," is written in the appropriate space. ^[14] A flat ban on information about write-in candidates increased the risk of slight variations in the way that Murkowski's name was written on the ballot, with a consequently increased chance of litigation over whether each particular variation met the statutory standard. Conversely, providing a list with the proper spelling increased the chance that individuals would accurately write their preferred entries in a picture-perfect manner, thereby reducing the number of ballots subject to dispute about the meaning of the statutory standard, and thereby reducing the potential stakes of post-election litigation.

The pre-election decision to provide the list might thus have been justified, at least in part, by the State's desire to reduce the incidence of error. Curiously, as Professor Flanders notes at the conclusion of his review, this decision seems to bleed quickly into the question of how to resolve any errors that nevertheless occurred. ^[15] Alaska statutes require voters to write in the name of their preferred candidate. ^[16] Apart from all of the other reasons to construe this requirement in one manner or another, should the fact that an "answer key" was provided before the election have affected whether this statutory requirement was construed with greater or lesser latitude in post-election challenges? ^[17]

It is important to recognize that the two issues need not necessarily be connected. There is no inherent reason why procedures for addressing residual error on write-in ballots should be controlled-or even influenced-by procedures to reduce the incidence of error in the first place, any more than those procedures for addressing residual error should be controlled by ballot access rules, procedures for qualifying eligible voters, or any other aspect of the "election ecosystem." ^[18] After all, the nature of the lighting in a polling place might also reduce the incidence of error on a write-in ballot, but it seems foolish to suggest that the standard for evaluating misspellings ought to vary with a poll site's choice of fluorescent bulbs. In order for the provision of the write-in list to influence the standards for counting ballots, there must be a valid reason to link the two policies.

As Professor Flanders implicitly recognizes, ^[19] the presence or absence of a link seems to turn largely on whether some notion of blame or fault is relevant to the decision. For example, imagine that "Lisa Merkowsky" would be counted under a less exacting interpretation of the Alaska statutory standard, but rejected under a more exacting interpretation. If the existence of the list at the polls, and solely the existence of the list at the polls, causes the standard for evaluating write-in entries to become more exacting, ^[20] the change in the standard must be due to an assessment that each voter had the opportunity to use the list to spell "Murkowski" correctly, at least some voters who misspelled "Murkowski" would not have misspelled "Murkowski" had they used the list, and we feel justified in blaming-and punishing-such voters in the event that they failed to check the list and offer the correct spelling. Conversely, if there is no list at the polls, and the lack of such a list alone causes the standard for evaluating write-in entries to become less exacting, it must be because we feel justified in excusing a minor mistake because the absence of a list absolved the voter of a meaningful modicum of fault.

The frame of "fault" or moral culpability is not a new development in election law. ^[21] Yet...