Fault and the Murkowski Voter: A Reply to Flanders

Abstract

In 2010, incumbent Senator Lisa Murkowski was defeated in the U.S. Senate primaries by an insurgent wing of the Republican party that saw substantial success across the country. Senator Murkowski then announced her intention to mount a write-in campaign, offering the rare prospect of a realistic chance of success. In an attempt to forestall ballot errors that might prove determinative in a close race, the Alaska Division of Elections attempted to offer a list of eligible write-in candidates to Alaskan voters at the polls. In this short response to a symposium contribution by Professor Chad Flanders, I use the controversy over that list as a convenient point of departure for a return to first principles in election law. Alaska statutes required voters to write the name of their preferred candidate as it appeared on the appropriate candidate’s declaration of a write-in candidacy. Such a requirement is open to interpretation, and some observers believed that the requirement should be strictly interpreted, based on the fact that a list of candidates was offered at the polls. This piece explores the notion of fault as the link between the two issues. Then, using the Alaskan example, it questions more generally the adequacy of fault as an interpretive principle for election regulations.