Have a look at some of the “questionable ballots” being flagged by Joe Miller’s team. The one I posted in the thumbnail on the front page is being challenged, I think, because the “r” in “Murkowski” looks vaguely like a “v”. That’s what it’s come to here.
If you’re wondering why Team Miller is forced to resort to frivolous challenges like these, it’s simple math. Murky evidently did a bang-up job of instructing her supporters on how to spell her name, to the point where just 1.5 percent of the write-ins thus far have been tossed out due to successful challenges. Miller’s problem, of course, is that he needs something on the order of 11,000 ballots disqualified in order to win, so he’s going to make sure to challenge that many and preserve them for scrutiny by the courts even if a bunch are pretty obviously valid. Nate Silver elaborates:
However many ballots Mr. Miller elects to challenge — and he could challenge every single ballot if he wanted to — only a certain fixed number of these challenges will have any realistic chance of being upheld. The fact that, on the first day of ballot counting, Mr. Miller’s campaign was already indulging in what seems to have been quite a number of frivolous challenges, and despite this, was still not able to challenge ballots at a rate consistent with what would eventually be required to deny Ms. Murkowski re-election, speaks quite poorly to his chances.
During the next several days of ballot counting, I would expect the fraction of ballots challenged by Mr. Miller’s campaign to increase: enough to put him beyond the 11.6 percent threshold that I described earlier, so that he could make some nominal claim that the outcome of the election was disputed. As a direct corollary of this, I would expect the average quality of Mr. Miller’s chances to decrease.
In other words, he’s already grasping at straws and we’re only on day two of the five-day count. Could be that somehow all the really dumb Murkowski voters are still in the pile waiting to be counted, but there’s no obvious reason I can think of why the error rate would dramatically increase later in the count. If there’s any consolation in the grim prognosis, though, it’s that it looks like we won’t end up with a nightmarish clusterfark where the Alaska Supreme Court has to decide the election by ruling on “voter intent” for ballots that read “Lisa Murcoski (sorry if I misspelled)”. We can’t cheer the outcome, but we can cheer clarity.
If you’re still holding out hope, Patterico has a spirited defense today of Miller’s “precise spelling” standard under Alaska law. He dismisses constitutional arguments against that by noting that there’s no explicit right to vote granted in the Constitution and that Article I, section IV grants states the right to determine the “time, place, and manner” of elections. True enough, but Article I, section II and the Seventeenth Amendment each imply a right to vote by specifying that representatives and senators must be elected “by the people,” and the Warren Court’s decision in Harper v. Virginia Board of Elections sure does seem to suggest that voting is a “fundamental right” protected by the Due Process Clause. It’d be a stretch, but not an unimaginable one, for some state or federal court to decide that disregarding voter intent amounts to a violation of due process by extension. But as I say, given how things are going for Murkowski, we’re probably not going to have an occasion to find out.