The art of the write-in: Murkowski bid could end in big legal battle

Now that Sen. Lisa Murkowski (R-Alaska) has decided to forge ahead with a write-in bid for Senate this November, some worry that the end result could be a bitter and expensive legal battle over the legitimacy of write-in ballots.

Declaring that Alaska "cannot accept the extremist views of Joe Miller," Murkowski announced her decision in Anchorage on Friday, and warned Republican Joe Miller and the Tea Party Express "the gloves are off."

It sets up a three-way battle this fall between Murkowski, Miller and Sitka Mayor Scott McAdams (D).

If Murkowski finds a way to make the race close in November, the Miller campaign can, and likely would, challenge the legitimacy of as many Murkowski write-in ballots as it could.

"There's no doubt they'll fight it out ballot by ballot if it comes to that," said one Republican election lawyer, who said despite the information campaign Murkowski will launch ahead of November, "enough people will spell the name wrong or not check the box" that presumably there will be plenty to dispute.

Here's how the process works, according to Alaska State election law: A write-in candidate must file a letter of intent with the state division of elections at least five days before Election Day. And according to state election law, for a write-in vote to count, the voter must both write the candidate's name in and check a corresponding oval signifying that they're casting a write-in vote.

And, unless the number of write-in ballots either exceed or come within half a percentage point of exceeding the total number of votes cast for the first place finisher, they aren't even examined.

Earlier this month, state elections supervisor Gail Fenumiai said that as long she can determine the intent of the voter, the write-in ballot would count. For example, Fenumiai indicated to the Anchorage Daily News that would mean a vote for "Lisa M." would likely count for Murkowski.

But on Friday, Fenumiai told The Hill that the division of elections has made no determination on what would or would not count as a vote for Murkowski and said the division wouldn't speculate further, saying only, "we will adhere to what it says in the statute."

According to some lawyers who have looked at that statute, it leaves plenty of room for interpretation. That's also the view of the national party, according to a Republican source meaning a legal battle could be unpredictable if it came to that.

"Either way, it'll be a mess if it's close," predicted one national Republican. "But can you imagine if that's the last seat out there and it could determine control of the Senate?"

As hard as Miller and the national party might fight in such a scenario, Murkowski likely wouldn't blink either, knowing that losing in the fall could very well mean an end to her political career.

The decision to mount a write-in campaign came amid staunch opposition from her party's leadership in Washington. Senate Minority Leader Mitch McConnell (R-Ky.) made clear Friday night that the party is backing Miller and Murkowski would be out of the leadership if successful.

On Friday, Murkowski again hit the Tea Party Express and went after former Alaska Gov. Sarah Palin, labeling herself "one Republican woman who won't quit on Alaska." Palin backed Joe Miller in the primary and called a write-in bid for Murkowski "futile" on Friday.

Murkowski warned supporters a write-in bid wouldn't be easy, but said the logistics aren't as daunting as some claim. "Alaskans can't figure out how to fill in an oval and spell M-U-R-K-O-W-S-K-I ?" she asked.

One possible way to get around the need to spell Murkowski's name on the ballot would have been to allow the campaign to hand out stickers with the Senator's name to supporters, which they then would have placed on the write-in section of the ballot. While that's allowed in certain states, Fenumiai said it's not permitted in Alaska.

The last Senator elected as a write-in was South Carolina's Strom Thurmond in 1954, a campaign in which he handed out thousands of pencils adorned with the proper spelling of his name for supporters to use in the voting booth.

While Alaksa pollster Marc Hellenthal said Friday that he has private polling that shows the race in a dead heat between the three, the fact that Murkowski backers will have to write her name on the ballot and remember to fill in a corresponding oval means there will likely be a significant drop off between those who say they will cast a vote for the incumbent and those who actually do.

"But there's really no way to measure just how much drop off there would be," said Hellenthal.

Internal numbers from the national GOP show that Murkowski could siphon off as many votes from McAdams as she would Miller, leaving the party slightly less concerned that the seat falls into Democratic hands this fall thanks to Murkowski's write-in bid.

The two main reasons Murkowski backers and even some other observers won't write the senator off in such a bid: her high name ID and relative popularity in the state coupled with the more than $1 million her campaign is sitting on.

Either way, it's lousy for the National Republican Senatorial Committee, which didn't anticipate spending much of anything in Alaska ahead of this fall. If Murkowski had won the primary against Miller, she would have been all but a shoo-in against the Democrat, McAdams.

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