Miller asks court to toss thousands of ballots

Legal wrangling over Alaska's contested U.S. Senate race reached the state Supreme Court today, with justices taking on Republican Joe Miller's appeal of a lower court ruling that equaled a victory for rival Lisa Murkowski.

Miller is appealing a state judge's decision to toss out his challenge to the state's handling of the election and its counting of write-in ballots for Murkowski, who lost to Miller in the Republican primary and ran a write-in campaign.

Michael Morley, an attorney for Miller, told the court that that the state should be held to a strict reading of election law and thousands of write-in ballots for rival Lisa Murkowski should be set aside. Morley said the law is clear, that write-in ballots must include the candidate's name or the name as it appears on the declaration of candidacy.

The state says it relied on case law to use discretion in determining voter intent, allowing for ballots with misspellings to be counted toward Murkowski's tally.

Murkowski led by more than 10,000 votes as a write-in candidate in last month's general election.

Murkowski's attorney Scott Kendall said Miller is "denying reality" in continuing in his legal challenge because Murkowski leads by 2,169 votes when ballots challenged by Miller's campaign are excluded.

Justices grilled Kendall about why the case is moot, noting there hasn't been a recount or a re-evaluation of challenged ballots that might add to Miller's tally.

Miller also says there were problems such as voters without proper identification being allowed to cast ballots. He is seeking to have the results invalidated and to have a hand recount of Miller's ballots to ensure a "fair and accurate" tally.

"The fact that the Legislature stated that there should be 'no exceptions' to the ballot counting method is what, in our view, should govern this matter," he said in a statement Monday, when he filed his appeal.

If he loses this case, Miller has said he would evaluate his legal options and may take his challenge to the U.S. Supreme Court.

Miller initially sued in federal court, but U.S. District Judge Ralph Beistline said the state courts were in a better position, "at least initially," to determine the winner. He said, however, he could review constitutional issues once the case works its way through state courts

Beistline has halted certification of the election until state issues are resolved. But he said this week someone should be in place in the Senate by early January, when Congress convenes, even if that means later having to replace that person when all legal disputes are resolved.