With a contentious fight over the legitimacy of write-in ballots looming in Alaska, Sen. Lisa MurkowskiLisa Ann MurkowskiHouse passes bill to expand workplace protections for nursing mothers Democrats look for plan B on filibuster Senate will vote on John Lewis voting bill as soon as next week MORE (R-Alaska) enters the process seemingly confident she has an insurmountable lead over Republican Joe Miller.
As it stands now, the number of "write-in" votes cast on Election Day leads Miller's vote total by 7 percent. It translates into a lead of some 13,000 votes over Miller, meaning the Republican nominee will have to find a way to invalidate a sizable portion of write-in ballots to have any chance of defeating Murkowski.
"[Murkowski] spent a lot of time and a lot of money making sure her voters knew what to do and knew how to spell her name, and it looks like it paid off," he said. "Our last poll before the election had her at 44 percent. I was surprised at how close to 44 percent that write-in total ended up."
If Murkowski holds on she would be the first to win election to the Senate as a write-in since the late-Sen. Strom Thurmond (R-S.C.) did it in 1954. But first, the incumbent needs to get past what is likely to be a messy legal battle despite her solid position.
Both camps have started legal funds, permitting donors to give another $2,400 to help with efforts related to the ballot count, even if they maxed out during the primary and general elections.
Murkowski has assembled a high-powered legal team for the upcoming ballot battle led by Ben Ginsberg, who played a leading role in the Florida recount saga of 2000 on behalf of then-Texas Gov. George W. Bush (R).
The accusations are already flying from the Miller camp and some of his staunchest backers.
In a statement Friday, Miller's campaign cast doubt on the impartiality of the state board of elections. The campaign has expressed concern that the division's definition of voter intent will be biased toward Murkowski in the actual ballot counting process.
"All Alaskans deserve a free, open and fair election," Miller said. "Unfortunately, the state Division of Elections has decided to call that process into question with the constant maneuvering of dates and procedures."
In an e-mail to supporters of his Senate Conservatives Fund on Friday, Sen. Jim DeMint (R-S.C.) warned that Murkowski's legal team "will be fighting to bend the law in Alaska, which requires write-in ballots to accurately state the candidate's name."
The South Carolina Republican, who has angered parts of the GOP establishment by his backing of Tea Party candidates in a slew of messy primary fights this year, also took a shot at the National Republican Senatorial Committee (NRSC), suggesting it's not fully committed to Miller's legal battle.
"The costs associated with maintaining the integrity of this election could be very high, especially if the legal battle goes on for a while," DeMint wrote. "Joe does not have the support of the special interests in Washington and he cannot rely on national Republicans to do everything that's needed to defend him."
Back in September, state elections supervisor Gail Fenumiai said that as long she was able to determine the intent of the voter, the write-in ballot would count. For example, she initially indicated to the Anchorage Daily News that, for example, a vote for "Lisa M." would likely count for Murkowski.
But since then, state elections officials have walked that back, telling reporters they have made no determination on what would or would not count as a vote for Murkowski, with Fenumiai noting "we will adhere to what it says in the statute."
Another complicating factor could be the more than 160 candidates who filed to run as write-ins ahead of Election Day. At least one of those candidates, who filed under the name Lisa M. Lackey, will likely have the effect of invalidating write-in votes that might have been cast for a "Lisa M."
Even with the edge for Murkowski, observers expect a messy process that Hellenthal thinks will end up in the courts sooner rather than later.
"I think it's sort of like [the Florida recount] in that the counting will start and then one side will file a legal challenge and then it's in the courts," he said.
Hellenthal said he would be "shocked" if a court ruled that Murkowski's last name had to be spelled correctly to the letter for a write-in ballot to count. That places Miller in an even tougher position, given that his lawyers will likely have to argue to invalidate votes that many might agree were intended for Murkowski.
"You're always at a disadvantage when you're in the position of disenfranchising voters," said Chris Sautter, a Democratic election lawyer who played a leading role in Minnesota's 2008 recount saga between Al FrankenAlan (Al) Stuart FrankenFranken targets senators from both parties in new comedy tour Al Franken on another Senate run: 'I'm keeping my options open' Andrew Cuomo and the death of shame MORE and Norm Coleman.
Sautter said both the fact that Miller presumably needs thousands of write-in ballots ruled invalid and the sheer margin of Murkowski's apparent lead leaves the GOP nominee an enormous hill to climb.
"Even a few hundred votes is typically too many to overcome in a recount," said Sautter.
The other dynamic that will play out in the ballot-counting process that gets under way next week is the tension between the national Republican Party, Miller and Murkowski.
Some Miller backers have privately worried that the NRSC isn't fully committed to Miller, while others, like DeMint, have alluded to that publicly.
In a TV appearance last weekend, NRSC Chairman John CornynJohn CornynCornyn raises more than M for Senate GOP Is the Biden administration afraid of trade? The Hill's Morning Report - Presented by Facebook - After high drama, Senate lifts debt limit MORE (R-Texas) sounded ambivalent about the outcome of Alaska's Senate contest, but the committee did send out an e-mail fundraising appeal Friday on behalf of Miller, urging conservatives to support his legal fight against Murkowski.
"He faces the potential of a lengthy recount. And in Alaska, they are still counting votes from election day," Cornyn wrote in the email. "We need to get Joe the resources he needs to win the vote count. Because we need Joe to join our fight against Barack ObamaBarack Hussein ObamaObama pays tribute to Merkel Supreme Court agrees to review Texas's 6-week abortion ban Youngkin to launch bus tour on same day as Obama, McAuliffe event in Virginia MORE."