It’s not over yet in Alaska, or so Joe Miller argued in federal court last night.  He filed a motion to an existing lawsuit to issue a temporary injunction against the state to stop it from certifying Lisa Murkowski as the winner in the Senate race, claiming that the state started counting the write-in ballots a week early, which left him unprepared to challenge ballots:

Miller’s lawsuit claims Alaska law requires voters to write in a candidate’s name as it appears on a declaration of candidacy, or the last name of the candidate, to cast valid ballots.

Alaska Lt. Gov. Craig Campbell, who oversees the Division of Elections, has said voter intent would drive acceptance of ballots and that previous court cases had supported that policy. Elections officials have credited Murkowski with ballots that contain minor misspellings.

Murkowski has a lead of about 10,400 votes. Miller had challenged 8,153 of the ballots counted for Murkowski, but he would still be behind even if he won every challenge.

However, Miller in an affidavit Thursday said the Division of Elections began its hand count of write-in ballots a week earlier than scheduled.

“Consequently, my campaign team and I were forced to pull together volunteer observers at the last minute, and did not have time to adequately and fully recruit and train them before counting began,” he said. “As a result, an indeterminate number of ballots with candidates’ names misspelled were counted without being challenged during the first several days of counting.”

Miller said he intends to request a re-count.

Alaska law certainly has a recount provision.  It shouldn’t take a federal judge to intercede on Miller’s behalf to get one.  Even assuming that every single challenge of Miller’s gets accepted, that still leaves a gap of about 1900 votes, many of which have been hand-counted in the presence of both campaigns and the state.  Recounts will rarely erase leads of that amount.

The claim that Miller wasn’t prepared to count write-in ballots seems rather strange as well.  Miller knew for weeks that Murkowski was mounting a write-in bid; his campaign repeatedly challenged the publication of a list of such candidates for voters at polling places.  Miller’s team also repeatedly insisted that they would challenge any ballot that didn’t exactly match Murkowski’s name.   That meant a certain necessity of a challenge squad capable of accomplishing the task if Murkowski got enough ballots to challenge Miller for the victory.  Are we to believe that Miller didn’t recruit and train people for that purpose until after the election?  Shouldn’t that have started in September?

Besides, the evidence suggests otherwise.  Murkowski got almost 93,000 write-in ballots, and Miller challenged over 10,000 of them (Murkowski didn’t defend just over 2,000 0f the challenged ballots).  That’s a pretty hefty percentage of the overall write-in ballots that Miller’s team managed to flag.

As far as the challenge on spelling, Miller may have the letter of the law on that issue, but realistically speaking, a judge isn’t going to strike a ballot when the intent is clear.  Yes, that’s judicial activism, and yes, I’d rather see judges stick to the law.  I’m not advocating this as a policy, but after watching recounts from Florida to Minnesota, in my experience that’s the reality that Miller has to face.  State judges are simply not going to ignore what appears to be obvious voter intent, and federal judges are even less likely to intercede in those decisions, seeing them (rightly) as state jurisdiction.  Without evidence of some massive conspiracy to throw the election, a federal challenge is almost certainly a Hail Mary.