Could Spelling Errors Cost Lisa Murkowski Alaska Election?

| by The Volokh Conspiracy

By Eugene Volokh

Prof. Rick Hasen has a Slate article about this controversy. Here’s the issue:

The U.S. Senate race in Alaska is the most riveting squeaker of the season. So far, “write-in” leads Republican Joe Miller by more than 10,000 votes. Alaskan officials started counting those ballots last week; it’s no surprise that most appear to be intended for Lisa Murkowski, who lost the Republican primary to Miller. But not everyone spelled Murkowski’s name right, and Miller has now sued in federal court to block the rules being used for counting the misspelled ballots. The fight illustrates a tension in resolving close elections between deferring to the voters’ apparent preference and sticking to clear rules — established ahead of time — so that election officials or judges can’t manipulate the process to favor a particular candidate. Miller’s lawsuit probably won’t succeed, but it has a secondary purpose: ensuring that the counting is aboveboard.

Rick also had a post on his Election Law Blog on the same subject, which gives some more legal details.

My general view is that election rules should be set up so that minor spelling errors are ignored; and while in principle one can imagine that this might cause trouble (imagine two candidates who have declared themselves as write-ins, one named Hasen and the other named Hasson), in practice I think this will generally be the sensible rule. But that doesn’t seem to be the Alaska rule; Alaska has a statute that requires voters to write “the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate,” and adds, “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.” Yet at the same time, as Rick mentions, Alaska courts have generally taken the view that minor voter errors should be ignored. It will be interesting to see what the Alaska courts decide.