Joe Miller’s campaign for Senate hinges on getting 11 thousand write-in votes for Murkowski disqualified, mostly for misspelling her name. For example, many people spelled her name “Murkowsky”.
On one level, this sounds stupid. The intent of “Murkowsky” votes is clear. But it turns out that Alaska law is quite strict. It requires that write-in votes write the name “as it appears on the write-in declaration of candidacy”. It adds that “The rules set out in this section are mandatory and there are no exceptions to them.”
One might argue (and I would agree) that this law is foolish. But it is clear.
I argue that election law ought to be observed punctiliously. Elections are zero-sum, adversarial situations. (They are much like trials in this regard.) One cannot bend the rules with disadvantaging one party. The only way to treat all parties fairly is to observe the rules scrupulously. It is legitimate to challenge the law as illegal, but it is too late after the election has been conducted to challenge the law as unwise.
That said, American election jurisprudence does not seem to agree with me. The law very often seems to be thrown out on the basis of vague principles. For example, in the 2002 Torricelli-Lautenberg switcheroo, the New Jersey Supreme Court set aside the state’s election law (which forbade the switch), based on the principle that voters deserved two major-party candidates, and the decision was upheld in federal court. (On the other hand, in a nearly identical situation in 2006, the courts ruled that Tom DeLay could not be replaced on the ballot, so perhaps the real principle is just to set aside rules when doing so favors Democrats.) So while Joe Miller has the law on his side, I think he is unlikely to win.
Finally, although Miller has a case, I wish he wouldn’t pursue it. I wish he would think about the moral element here. If he prevails to win the seat, it will be over the express will of the voters. Is a seat won under such circumstances really worth having? Certainly there are many that feel the answer is yes (e.g., Al Franken). But I would hope for better from a Tea Party candidate.