How Do You Spell M-u-r-k-o-w-s-k-i? Part I: the Question of Assistance to the Voter

• Publication year: 2011

§ 28 Alaska L. Rev. 1. HOW DO YOU SPELL M-U-R-K-O-W-S-K-I? PART I: THE QUESTION OF ASSISTANCE TO THE VOTER

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

HOW DO YOU SPELL M-U-R-K-O-W-S-K-I? PART I: THE QUESTION OF ASSISTANCE TO THE VOTER

Chad Flanders ^[*]

"They tell us this is impossible, you cannot do it, Alaskans can't figure out how to fill in an oval and spell M-U-R-K-O-W-S-K-I?"

-Sen. Lisa Murkowski ^[1]

Abstract

The 2010 Alaska Senate race is now over, ending amid considerable legal controversy. After losing the Republican primary to Tea Party-backed candidate Joe Miller, Senator Lisa Murkowski staged a write-in candidacy and, bucking history, won the general election. Much attention has been paid to Miller's post-election challenges to Murkowski write-in ballots, claims which have been resolved in Murkowski's favor. Still, a major election law question emerged prior to the election: to what extent can poll workers assist voters who need help to vote for a write-in candidate? After Murkowski declared her write-in candidacy, the Alaska Division of Elections distributed a list of eligible write-in candidates to polling places, in case voters had questions about how to spell the name of a write-in candidate. Both parties, sensing this would benefit Murkowski, cried foul and challenged the new policy in Alaska state court. They claimed that the Division violated its own regulations, which prohibited the distribution of "information" about write-in candidates at polling places. This article examines four issues about voter assistance in the Murkowski litigation: (1) how to interpret statutes and regulations regarding voter assistance; (2) what kind of assistance is permissible and what kind is not; (3) whether the state can legitimately limit the ability of voters to write in the name of a candidate; and (4) how decisions on assistance to voters before the election should affect a court's disposition on cases that arise after the election.

Introduction

Lisa Murkowski's write-in candidacy for re-election as Alaska's Senator has finally succeeded. ^[2] Early on, however, success was far from guaranteed. Faced with anti-incumbent sentiment and an early Tea Party surge, Murkowski lost the Republican primary to Joe Miller. Her candidacy was declared dead, and Murkowski herself appeared ready to throw in the towel. ^[3] Even when she campaigned as a write-in candidate there were difficulties beyond simply fighting long odds to become the first successful write-in Senate candidate since Strom Thurmond. ^[4] There was, more specifically to Ms. Murkowski, the problem of whether people would be able to successfully spell her name correctly on the ballot. ^[5]

That problem-and the Alaska Election Division's response to it- made up the first round of legal wrangling in the Alaska Senatorial contest. ^[6] The Alaska Election Division, mindful that an unusually high number of people would be voting write-in, sought to provide polling places a list of all eligible write-in candidates, including Lisa Murkowski. ^[7] The list, presumably, would be provided (in some fashion) to voters confused about how to spell the names of candidates. The Alaska Democratic Party filed suit (later joined by the Alaska Republican party) seeking to block use of the list. ^[8] Both parties saw the move by the Division as an obvious help to the Murkowski campaign. A state superior court held in favor of the Democratic Party. ^[9] But in late October, a per curiam decision by the Alaska Supreme Court reversed, allowing the Division to use the lists in limited circumstances. ^[10]

The questions presented by the pre-election lawsuits raise issues of enduring importance to election law, both in Alaska and throughout the United States. The Alaska Supreme Court's pre-election decision has been eclipsed by both the election itself and Miller's subsequent litigation to contest which write-in ballots should be counted. ^[11] But the issues presented by the litigation will certainly come up again, perhaps now more than ever with the surge in third-party activism. ^[12] This essay considers four questions raised by the early election litigation:

*First, how should courts read statutes regarding assistance to voters, especially when those statutes seem to clash with regulations promulgated by the election division itself?

* Second, what type of assistance should poll workers be allowed to give to voters who wish to vote for a write-in candidate? When does voter assistance go too far, and constitute undue influence over the voter?

* Third, to what extent can a state legitimately disadvantage a write-in candidate who has won neither party's primary? Can a state, for reasons of either principle or expediency, make it harder for voters to write in the names of candidates?

* Fourth, how should decisions regarding assistance to voters before they vote affect how votes are counted after the election? If voters were able to seek help in spelling a candidate's name on a write-in ballot, does that mean that ballots that spell the name incorrectly should not be counted?

In State, Division of Elections v. Alaska Democratic Party, ^[13] the Alaska Supreme Court was required to answer, or at least hint at answers, to each of these questions, save the last, which was the subject of the postelection litigation. ^[14] Generally, I agree with the court's answers. Still, the supreme court's opinion and oral arguments came under time pressure and the need to render a decision quickly so that the election could proceed. This essay attempts to clarify the arguments on both sides of each question and to justify more fully the supreme court's decision.

I. Background

The facts leading up to the supreme court's decision should be vaguely familiar to those who followed the 2010 elections. Joe Miller, a veteran of operation Desert Storm who graduated from west Point and Yale Law School, won a surprising upset over Senator Lisa Murkowski in the Republican primary, thanks in part to backing by the Tea Party and the support of former Alaska Governor Sarah Palin. ^[15] His opponent, Senator Lisa Murkowski, conceded and appeared willing to accept the primary voters' verdict that she should not be a candidate in the general election. ^[16] A few days later, she changed course-based, she said, on the outpouring of support for her from ordinary Alaskans. ^[17] She announced that she would wage a write-in campaign, as the date for filing as an independent candidate had already passed. ^[18]

In anticipation of many voters writing in Murkowski's name-she still retained high statewide popularity, even after her primary defeat- the Alaska Division of Elections sent to polling places a written list of write-in candidates and their party affiliations, a move unprecedented in the history of Alaska elections. ^[19] At least one polling place mistakenly posted the list, ^[20] which is how the two political parties eventually learned of its existence. ^[21] The Division also wrote to the United States Department of Justice (D.O.J.) asking for preclearance of its actions because under the Federal Voting Rights Act, Alaska is required to submit all major election changes to the D.O.J. for approval. ^[22] In its letter, the Division said it was not sure whether the change was significant enough to require preclearance but thought it should err on the side of caution. ^[23] In a reply a few days later, the D.O.J. provisionally approved the measure. ^[24]

The two major parties did not respond so amiably. The parties saw providing a list of write-in candidates to polling places as a move which plainly favored the write-in candidate with the hard-to-spell name: Murkowski. ^[25] The Democratic Party, joined by the Republicans, ^[26] filed suit in Alaska state court. ^[27] They alleged that the Division was violating its own regulations, which prohibited any "information" about write-in candidates to be available, posted, or discussed within a polling place. ^[28] The Division replied that it was complying with its statutory mandate to provide voter assistance. ^[29] The Murkowski campaign intervened on the side of the Division. ^[30]

Judge Frank Pfiffner of the Alaska Superior Court granted the Democratic Party's request for a temporary restraining order enjoining the Division of Elections's distribution of a list of names of write-in candidates to polling places. ^[31] In a thirteen-page opinion, Judge Pfiffner found that the Alaska Division of Elections's regulation prohibiting the dissemination of information regarding write-in candidates was clear and that the Division's interpretation that their list of candidates was not information was "simply wrong." ^[32] Judge Pfiffner also rejected the Division's argument that its statutory obligation to assist "qualified voters" trumped the regulation banning information about write-in candidates. ^[33] Assisting voters in voting was different, Pfiffner reasoned, than providing them with information about whom they could vote for. ^[34] If such assistance were truly necessary, "then the Division has been asleep at the switch for the past 50 years." ^[35]

The victory of the Alaska Democratic Party was short-lived. The Alaska Supreme Court stayed the superior court's order and granted the Division's motion for expedited consideration. ^[36] In an opinion released just days before the general election, the court ruled unanimously against the Democratic...