State laws murky on write-in ballot counts

ANCHORAGE, Alaska — With Sen. Lisa Murkowski staging a write-in bid to keep her seat this year, Alaska’s U.S. Senate race could easily turn into a maze of legal issues. Channel 2’s Rhonda McBride has a look at what turns the path could take.

Murkowski launched her first write-in ad this week. Its tone is somber and serious -- quite a contrast from the exhilaration of Friday's announcement.

“They tell us this is impossible, you cannot do it, Alaskans can't figure out how to fill in an oval and write M-U-R-K-O-W-S-K-I -- yeah, right,” Murkowski said.

Murkowski has the weight of history against her: no statewide candidate has ever won office on a write-in candidacy.

Ernest Gruening tried in a 1968 U.S. Senate run, but only netted about 17 percent of the vote. Wally Hickel had the most successful write-in campaign with about 34,000 ballots, or about 26 percent of the votes, in his 1978 race for governor.

Robin Taylor also had a good showing when he ran for governor in 1998, after the Republican Party turned its back on its nominee, John Lindauer -- but even with party support, Taylor wound up with only 18 percent of the vote.

Another challenge for Murkowski is state law. It's very difficult to interpret, and  it's hard to get the Division of Elections or any public official to come forward and explain it.

Lt. Gov. Craig Campbell's office has decided not to decide on some of the nagging issues that may arise out of a write-in campaign.

“The Division will count votes according to state law, and will not be addressing hypothetical issues at this time,” Campbell’s office said in a statement.
State law says votes shall only be counted if the oval is filled in for that candidate, and if the name is written as it appears on the write-in candidate's declaration of candidacy -- or the last name of the candidate is written in the space provided.

On the form declaring her write-in candidacy, Murkowski will have to write in the name she wants voters to use on the ballot. Her campaign is exploring whether or not she could use “Lisa M” or something easier for voters to remember. She has until five days before Nov. 2 general election to file the form.

With many voters who speak English as a second language, especially in rural areas, Alaska is probably one of the most challenging states for a write-in campaign. That's why the Alaska chapter of the American Civil Liberties Union is keeping a close eye on preparations for the election.

“It's important that the will of the voter be respected and that the process be allowed to go forward,” said Alaska ACLU Executive Director Jeffrey Mittman.

The ACLU is pushing the state to invest heavily in voter education about write-in ballots, to avoid the legal headaches that could come if it's a close election.

“I would anticipate there would be attorneys for all the candidates, and if legal issues arise there will be observers, legal issues on the ground, reviewing the process,” Mittman said.

It’s a process that the Miller campaign is bracing for.

“We are clearly going to work hard -- we aren't discounting impact in the race, but we as a campaign are going to double up our efforts,” Miller said.

With less than a month and a half to go, one thing is certain: this will be a campaign with many twists and turns.

The Alaska ACLU says it will have a lot of information on its website to educate voters about the write-in ballot process.

If a voter needs help, he or she is allowed to have someone in the voting booth -- so long as that person is not a candidate, a union agent or an employer.

State regulations on counting write-in ballots were changed after Robin Taylor's 1998 write-in bid for governor, and the language is very hard to decipher -- even for lawyers.

On election night, we will not know how many votes were cast for Murkowski -- we will only know the number of write-ins. State regulations say names on the write-in ballots will only be counted if they outnumber those cast for the first-place finisher. If it's extremely close, there's another formula the state will use.

The bottom line: if it gets that close, the courts could very well determine the outcome.

Contact Rhonda McBride at rmcbride@ktuu.com



State election code on counting write-in ballots:

6 AAC 25.085. Counting of write-in votes in general election

(a) Except as provided in 6 AAC 25.670, the provisions of this section apply for the counting of write-in votes in a general election in this state.

(b) Counting write-in votes in a general election by candidate will only be done under this section if the aggregate of all votes cast for all write-in candidates for the particular office is
(1) the highest number of votes received by any candidate for the office; or
(2) the second highest number of votes received by any candidate and the difference between the total number of votes received by the candidate having the highest number of votes and the aggregate of all votes cast for all write-in candidates for the office is less than the percentage necessary for a recount at the state's cost under AS 15.20.450.

(c) Write-in votes that do not meet the requirements of this section will not be individually counted under this section.

(d) If the director determines that the requirements of this section have been met, the director will establish the place and date for counting those write-in votes.