JUNEAU, Alaska — An Alaska federal judge ruled Friday that Republican Senate candidate Joe Miller's challenge to the counting of write-in ballots raises "serious" legal issues but is a matter for a state, not federal, court to decide.
Yet in deferring to an Alaska state court for a final decision, U.S. District Judge Ralph Beistline said he would grant a temporary injunction to halt official certification of the Nov. 2 election – an action Miller is seeking – so long as Miller takes his case to the state court by Monday. Miller told The Associated Press late Friday that he intended to do so.
Beistline's unusual action was intended to "ensure that these serious state law issues are resolved prior to certification of the election," the ruling said.
Miller sued in federal court in a bid to stop the state from using discretion in determining voter intent on write-in ballots cast for his election rival, Sen. Lisa Murkowski, who declared victory in the race Wednesday. She mounted the write-in campaign after losing to Miller in the GOP primary.
State law calls for write-in ballots to have the oval filled in and the candidate's last name or name as it appears on their declaration of candidacy written.
But the state pointed to case law in counting Murkowski ballots that contain misspellings or were phonetic to her name. Lt. Gov. Craig Campbell, who oversees elections, has defended the practice, saying the state doesn't want to disenfranchise any voters.
Miller wants the law adhered to strictly, and asked Beistline to keep the state from certifying the election results based on a count of ballots that aren't in line with it. The target date for certifying the race is Nov. 29. A recount can then be requested by Dec. 4.
Beistline said a state court is in "the best position, at least initially, to apply Alaska law and to determine who won this election."
But he also said he'd "remain available to review any constitutional issues that may exist once the state remedies have been exhausted."
On Friday, Miller amended his complaint, alleging among other things violations of the U.S. Constitution's Elections Clause and equal protection. The complaint said the state's procedure of hand-reviewing write-in ballots to determine voter intent – but not ballots for other candidates, which went through automatic machines – "gave a substantial advantage" to write-in candidates like Murkowski.
Miller's spokesman said Miller wants a hand count but after a court rules on the standard by which ballots should be judged.
An attorney for the state, Margaret Paton-Walsh, said she's glad the matter was referred to state court, "where it belongs." She said she's confident Miller's reading of the law will be rejected if he files a case.
Miller, who's been urged by the state GOP to concede, said he looks forward to the court's interpretation.
"It is critical that these issues be resolved not only for this election, but for future ones in Alaska, as well," he said. "We are a nation of laws, and the law concerning this could not be clearer. We need the state law applied consistently to all ballots cast."
Miller declined to say how far he would take his case if he lost in state court.
Murkowski declared victory in the race Wednesday, as the final several hundred ballots were tabulated. With those ballots sorted by hand Friday, to determine the names written on them, Murkowski held a 10,328 vote lead. She had 101,088 votes to Miller's 90,760. Miller's figure includes 20 write-in votes for him.
Murkowski's total includes 8,159 ballots contested by Miller observers. Excluding those, she had a 2,169-vote lead.
Miller said "the lack of a clear and consistent standard" raises serious questions in his mind about the veracity of those numbers. His campaign also has been going through voter rolls to try to match the number of people signed up to vote with votes cast in certain precincts to ensure there was no voter fraud or other irregularities.
A Miller observer said Friday morning that the two matched pretty closely in logs combed through so far.
Miller said he knew of no calls besides those from the state GOP and Murkowski camp for him to concede. He continues raising money for his legal defense fund, calling fundraising efforts so far "adequate."
South Carolina Jim DeMint's Senate Conservatives Fund also has reported raising more than $151,000 for what it calls a "Joe Miller Recount Fund."
Murkowski campaign manager Kevin Sweeney said Murkowski won, and he doesn't know what Miller could gain by pursuing the issue. He said Murkowski is "already back at work and focused on representing all Alaskans for the next six years."