Guest Column: Ned Foley (OSU) on Alaska

Ned Foley of the Moritz School of Law at the Ohio State University weighs in on our recent discussions about Alaska.  For those who don’t know, Ned is one of a few experts on the legal and political wrangling in Coleman vs. Franken, and I appreciate his willingness to muse on this issue.  Crossposted at

I haven’t looked into the details of the Alaska law on this–at least not yet–and let’s hope no situation arises where the outcome matters on how a dispute over write-in ballots is resolved.  But what worries me most in what I have seen as a result of the previous Election Update posts is that apparent discrepancy between the text of the statute and the view of Alaska’s Elections Director, as reported by Slate and the Anchorage Daily News.

The statute says that, to be conducted, a write-in ballot must meet this requirement regarding the write-in candidate’s name: “the name, as it appears on the write-in declaration of candidacy, of the candidate or the last name of the candidate is written in the space provided.”  This statutory language is odd.  It appears to permit only the candidate’s “last name” to suffice, and to disqualify any mistakes regarding a candidate’s first name.  For example, “Mark Murkowki” or “Jane Murkowski” would be rejected because neither is consistent with Lisa Murkowski.

But what if the ballot has “Lis Murkowski” with the “a” missing from Lisa?  Or “Liza Murkowski,” with a “z” instead of an “s”?  That’s not “as [the name] appears on the write-in declaration of candidacy.”  Sure, despite the discrepancy, we all know the voter’s intent in this situation.  But Alaska’s statute has an important extra provision: “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.”  This provision would seem to prohibit judges and election officials from giving leeway to voters in counting ballots based on discerning evident voter intent despite minor deviations from the rules.

(By the way, on the specific issue raised by Paul in response to Thad, it would seem that this statutory provision indicates that a ballot should NOT be counted if the oval is completely unmarked even if the name is correct. The statute says that write-in ballot is counted if both “the oval is filled in” and the name is correctly included.  While there may are different ways to mark the oval validly, as Paul observes, not marking it at all would seem to fall outside of statutory compliance, and the provision says that no ballot may be counted unless it complies.)

Of course, this “mandatory compliance” provision doesn’t completely resolve all statutory doubt: maybe writing “Liza Murkowski”, despite the mistaken “z” for “s” is close enough to count as being the same as the name “as it appears on the write-in declaration of candidacy”.  The argument is that Lisa and Liza really are the same name, at least compared to Mark or Jane. If so, then the voter would have complied with the relevant mandatory rule, and there would be no need to make an exception.   But the problem with this sort of argument is that this key provision seems to tell judges and officials to err on the side enforcing the counting rule strictly, which would mean that “Liz” and “Liza” really aren’t the same as “Lisa” (despite obvious voter intent).

But the Alaska Elections Director was quoted as saying that “Lisa M” would be acceptable even if “Lisa” alone wouldn’t be enough.  That position seems inconsistent with the statute.  “M” is not the same as the candidate’s last name, which is required.

What I fear is litigation based on an argument that voters relied on the public pronouncements of the state’s Election Director, which appeared in the leading newspaper in the state’s largest city. Even if the Elections Director is flatly wrong under the statute, a court might accept a “due process” argument based on voter reliance.  There is some case law around the country to support that kind of argument.  (I haven’t looked at Alaska or Ninth Circuit precedents specifically on this point.)  That kind of reliance argument, by the way, did not play a role in Coleman v. Franken, because there was no claim that voters were relying on the possibility that election officials would engage in an excessively lenient interpretation of the rules for submitting absentee ballots in Minnesota.

More recent news stories from Alaska indicate some effort to clarify the situation:

Let’s hope that the issue is sufficiently clarified that it does not become a practical problem.   Or that the election is not close enough for the issue to make a difference.”