U.S. Sen. Lisa Murkowski's campaign on Thursday accused observers for rival Joe Miller of challenging properly cast write-in ballots in an effort to drag out the heated Alaska Senate race and "delay the inevitable."
Shortly after the second day of write-in ballot counting began, a Miller observer challenged a vote for Murkowski that appeared to have her name spelled and printed correctly, though the "L" in "Lisa" was in cursive handwriting.
At another table later, at least 10 ballots in which Murkowski's name appeared readable were challenged, including one in which the vote read: "Lisa Murkowski Republican."
Miller's campaign said observers are simply challenging votes that don't meet the strict letter of the law - including those with minor misspellings of Murkowski's name or those with legibility or penmanship issues.
"The Murkowski campaign can say whatever it wants," Chip Gerhardt, a Miller observer and attorney sent to the state by the National Republican Senatorial Committee. "What's going on here, our focus is on following the law."
Murkowski spokesman John Tracy sees it this way: "What this says to us is, they're simply trying to delay the inevitable."
The law calls for write-in ballots to have the oval filled in and either the candidate's last name or the name as it appears on their declaration of candidacy scrawled in - in this case, either "Murkowski" or "Lisa Murkowski."
But the state is using discretion to discern voter intent, pointing to prior case law as their basis in doing so. State Division of Elections director Gail Fenumiai, the final arbiter of what's in or out during the counting process, said if the name is phonetic to Murkowski or there are minor misspellings, she's counting it for Murkowski. It's an effort aimed at not disenfranchising any voters.
The tabulation of about 30,000 initial write-ins showed Murkowski winning 89 percent of the votes undisputedly, meaning those ballots were properly cast for her with the oval filled in and her name written correctly. Another 9.9 percent was challenged, though Fenumiai counted the majority of those to Murkowski's tally.
That percentage is key: If a judge agrees that they don't meet the legal standard of votes for Murkowski and tosses them aside, Miller's camp says it would make the race very tight, possibly forcing a recount or, at the very least, putting Miller in tight contention.
Murkowski attorney Ben Ginbserg, who worked for the Bush-Cheney campaign during the 2000 Florida presidential recount, considers that unlikely.
He said case law makes clear this is a state that heavily favors voter intent. For Miller to be successful in court, he said, he'd have to argue that thousands of Alaskans who took the time to write-in Murkowski's name but misspelled it or were a bit sloppy in their script should not have their vote counted.
Miller has filed a federal lawsuit, seeking to bar the state from counting ballots that do not meet the standards set out in law. Briefings in the matter are set for next week.
The case law that state officials and Ginsberg point to does not refer to a write-in campaign but to the marking of ballot ovals, and it gives weight to voter intent.
Edward Foley, an election law scholar and law professor at Ohio State University, sees where a valid argument could be made by either side.
"I can see a judge easily saying there's no wiggle room under the statute or there's a little wiggle room but not a lot," he said. Some courts in election matters have taken a "tough luck," rules-are-rules approach, he said, while others have proved more lenient to keep voters from being disenfranchised.
More than 92,900 writein ballots have been cast in the race, with thousands of absentee and questioned ballots still coming in or yet to be addressed. Write-ins led Miller by a margin of 10,799 as of Wednesday night.
Murkowski remained confident she'd win, but there would be no claim to victory "definitively" until all ballots are counted, her campaign manager said.
Some of the challenges have come from Murkowski's camp, and included ballots with her name written but the oval not filled in. Those weren't being counted but Ginsberg believes a legal argument can be made for their inclusion - if it comes to that.
The write-in count could extend into the weekend, with the laborious task taking longer than officials initially expected.
The deadline for the state to receive mail ballots from within the U.S. is Friday; the deadline for overseas and military addresses is Nov. 17. The election review board is currently scheduled to certify the race results Nov. 29 - after which a recount can be requested or the results can be contested in court.