Alaska judge bans lists of write-in candidates

Saying there is “a critical difference between assistance in voting and assistance in who to vote for,” a Superior Court judge in Anchorage has blocked the Alaska Division of Elections’ attempt to provide lists of write-in candidates to voters when they go to the polls Tuesday, a big setback for the write-in campaign of incumbent U.S. Sen. Lisa Murkowski.

Superior Court Judge Frank A. Pfiffner rejected the state’s argument that providing a list of certified write-in candidates to voters who ask for help complies with the state’s obligation to assist citizens who need help voting.

“If it were important ‘assistance’ for the division to provide voters with lists of write-in candidates, then the division has been asleep at the switch for the past 50 years. The division first developed the need for a write-in candidate list 12 days ago,” the judge wrote in his temporary restraining order blocking distribution of the lists.

The Division of Elections and the Murkowski campaign launched an appeal and a request for an emergency stay from the Alaska Supreme Court, an indication of the stakes in the high-profile campaign in which the Republican incumbent is being challenged by Democrat Scott McAdams and Fairbanks lawyer Joe Miller, who defeated her in the primary with the help of the Tea Party Express.

The state Democratic Party launched the initial challenge of the write-in lists when a list was seen at an absentee ballot polling place in the town of Homer. The Republican Party joined in the challenge, and the Alaska Federation of Natives, which is backing Murkowski, sought to weigh in defending the lists.

Worries about the need for assistance for Native Alaskan voters, especially elders with limited English writing skills, were among the chief points raised by the Murkowski campaign, which argued that failing to render aid to those voters when requested would violate the law.

“This case is about the affirmative duty mandated by state and federal law that the Division of Elections assist voters, when asked, in order to ensure that every Alaskan’s vote is counted as they intended,” the elections division wrote in its brief.

But Pfiffner said providing the lists is a “clear violation” of state election regulations that say “information” about a write-in candidate may not be “discussed, exhibited or provided” at the polling place, or within 200 feet of the entrance to the polling place, on election day.

“The division’s arguments that the knowledge that it has provided to voters about write-in candidates is not ‘information’ as that term is used in the regulation is simply wrong,” the judge said.

“Besides, an agency’s new, last-minute interpretation of a regulation is not entitled to deference,” he added. “Even more shocking is the division’s implementation of its ‘haste makes waste’ write-in voting list determination without obtaining required Department of Justice approval of its actions.”

Elections officials had applied to the federal Justice Department for approval but had not received it when they distributed the initial lists.

Murkowski campaign officials have handed out thousands of rubber bracelets with the candidate’s name on them but have advised voters to hide them under their sleeves when going to the polls.

“We believe that the Democrat and Republican parties’ actions seek to disenfranchise Alaskans and limit votes from those who ask for assistance with the process,” campaign manager Kevin Sweeney said. “We remain confident that Alaskans who want to vote for Lisa Murkowski by filling in the oval and writing in her name will not be deterred.”

But in joining the lawsuit, Republican Party officials said it was important to uphold the integrity of the process. “Regardless of the actual motivation, making this kind of change for the first time ever, when there is a powerful candidate running a write-in campaign, will raise suspicions that political skullduggery is involved,” the party’s lawyer, Kenneth Kirk, said in an earlier statement.

For once, the Democrats agreed. “This is a victory for the integrity of Alaska’s election process,” McAdams said. “We have 50 years of voting history that has worked fine for Alaskans and the judge’s ruling further supports our position that providing this extra assistance for write-in candidates is unprecedented and unacceptable.”

kim.murphy@latimes.com