What's more important: following the letter of state law on how to count write-in votes, or trying to determine a voter's intent in order to count as many votes as possible?
For Joe Miller, it's the letter of the law. For Lisa Murkowski, it's voter intent. A federal judge has ordered lawyers for both of them to submit legal briefs next week in a lawsuit filed by Miller. He claims the state improperly changed the recount rules at the last minute. Despite the legal battle, the vote counting goes on.
Here's the issue. Alaska election law says a write-in vote will count if the candidate's name is written on the ballot "as it appears on the write-in declaration of candidacy." Writing only the candidate's last name also counts. Those rules, the Alaska election code says, are mandatory "and there are no exceptions to them."
Miller, the Republican candidate, argues that in order to count, a vote for Murkowski must be spelled correctly. "The statute does not permit a write-in vote to be counted if a voter includes only a 'reasonable approximation' or a 'close variation' of a candidate's name," his lawsuit says.
But many legal experts believe the issue isn't so clear cut. Prof. Rick Hasen of Loyola Law School says Alaska courts have been especially strong in insisting that voter intent be taken into account when interpreting election laws. Alaska's elections director, Gail Fenumiai, cites two Alaska court decisions allowing votes to count when the intent was clear, even if ballots were not filled out according to the letter of the law. Neither of those cases, however, involved write-in candidates.
For now, the state is keeping the ballots that clearly spell Murkowski's name correctly separate from those that don't. If enough Alaskans passed the spelling test, she could be the apparent winner even before the legal fight is over.