Miller Will Not Appeal Federal Ruling; Concedes AK’s U.S. Senate Race to Murkowski

In a press conference held this afternoon in Juneau, Alaska’s GOP nominee for the U.S. Senate, Joe Miller, finally conceded the election to write-in candidate and incumbent Republican Senator Lisa Murkowski. He has decided not to appeal his federal case as dismissed by a U.S. circuit court judge on Tuesday. See AP’s coverage for more on today’s announcement.

Having followed the failures of Alaska’s Diebold election system for years, The BRAD BLOG followed the race between Miller, Murkowski and Democratic nominee Scott McAdams closely over the last several months, as it served to offer, yet again, another reminder of the importance of full transparency and citizen oversight in (small “d”) democratic elections and the need to reconsider the use of electronic tabulation systems which ultimately leave all of us wondering if election results are accurate and if this nation can consider itself as having anything approaching the self-governance envisioned in our Constitution…

In September, after Murkowski announced her intention to run as a write-in, we detailed how the state’s dubious Diebold optical-scan system, one with a long history of failure and anomalies, would be tested by the three-way race, and how state Division of Election (DoE)’s murky standards for judging the validity of write-in ballots was likely to add to post-election problems.

In October, we covered Miller’s private security team hand-cuffing a local journalist at an election event and McAdams’ charge that the DoE was inappropriately aiding Murkowski by supplying a printed listed of write-in candidates to voters at the polling place. The DoE’s director would end up responding to our public records request by admitting that the DoE had never before provided such a list to polling places.

A judge sided with McAdams’ (and with Miller, who’d joined him) on that complaint, only to be overturned by the state Supreme Court in the days before the November election.

Following what appeared to be his defeat as write-in ballots (but not the others) were being examined by hand in mid-November, Miller hinted at the possibility of requesting a hand-count of all ballots, an idea which, given Alaska’s hinky history with its Diebold tabulation system, we recommended.

A federal judge would temporarily halt Murkowski’s official certification after Miller filed suit, but sent the case down to state court where he said matters of state law needed to be heard before federal Constitutional issues were examined.

Miller’s complaint pointed to disparities in the way write-in ballots, versus ballots for other candidates, were tabulated, and how state law appeared to be in contradiction with the manner in which the DoE had decided to accept valid write-in votes — just as we’d predicted would likely be the case back in September. His arguments were rejected out of hand by the state court — highlighting the necessity of counting ballots accurately and publicly on election night, rather than waiting for post-election legal battles which are almost always rejected by the courts. The AK Supreme Court, to the surprise of no one, similarly dismissed Miller’s appeal on all counts.

Stating that “Election integrity is vital” last Monday, Miller re-filed his case in federal court, detailing three counts in which he argued the U.S. Constitution had been violated, while determining not to challenge Murkowski’s state certification and seating in the U.S. Senate next Wednesday. We offered a detailed analysis of his complaint, while noting what was likely to be a fatal Constitutional flaw in his case in the wake of his determination to not challenge Murkowski’s seating. As we explained, there was a precedent set — ironically enough, by the GOP Congress in a 2006 election contest that The BRAD BLOG was instrumental in out here in California — wherein it was determined that once a candidate was seated in Congress, such contests were no longer up to the courts or even voters in the state (in the event of a later hand-count) to decide.

But before the state could even file its reply to Miller’s complaint — before even a motion to dismiss was filed — the federal judge dismissed it on all counts on Tuesday, in what we described as a “curious” ruling (though one that several readers, in comments, found not quite as curious as we did.)

We played phone tag with Miller himself over the next several days, finally having a long discussion with one of his top campaign staffers who explained a number of disturbing anomalies and procedural failings in the state’s elections rules that they’d come across while trying to oversee the tabulation in the weeks following the election. (For example, it turns out Alaska precincts actually destroy all unvoted ballots at the precinct on election night after the close of polls. That’s a terrific way to cover your tracks if you’d like to stuff the ballots box!) The staffer expressed hopes of, at the very least, taking this opportunity to help improve Alaska’s dismal election system going forward via new state legislation.

Along the way, during the post-election jockeying, the “Tea Party”-backed, Sarah Palin-endorsed Miller found a surprising ally in progressive Alaska radio host Shannyn Moore (one of Palin’s fiercest opponents) and other local progressive bloggers who had strongly supported McAdams, but found themselves supporting Miller’s attempts at oversight given their own less-than-favorable experiences with the state’s election system in years past.

And finally today, Miller, who had the option of pressing on with his federal case to the 9th Circuit of Appeals, and then to the U.S. Supreme Court if needed, decided it was over for him — just in time for The BRAD BLOG to take a few days off for the New Year’s holiday and to ponder once again the importance of getting it right on election night, just as we described in our September 2009 article “Democracy’s Gold Standard”, calling for hand-marked, hand-counted paper ballots, publicly tabulated at the polling place, in front of everyone at the close of polls, before ballots are ever moved anywhere.

Once again we’re reminded how democracy and self-governance demand nothing less. Hopefully many more folks on the Right are beginning to understand that as well, as the last major contest of the 2010 election finally comes to a less than satisfying, less than (small “d”) democratic, ending.