Alaska Poised to Elect Democrat Mark Begich to Senate

(Editor's note: Late on Tuesday, Mark Begich was ahead of incumbent Sen. Ted Stevens (R-AK) by more than 3,700 votes, prompting most national news organizations to declare Begich won the 2008 U.S. senate race. This report, by election lawyer Scott Rafferty, was filed earlier Tuesday as additional vote totals were released. There still are more ballots to count, but Begich declared victory on Tuesday night).

Tuesday is Alaska Republican Senator Ted Stevens' 85th birthday. He has received several presents. The Alaska Supreme Court turned down the bar association's demand for his immediate disbarment, giving the Senator until next Monday to defend himself against his recent felony convictions. This morning, his nemesis in the Republican Conference, Senator Jim DeMint of South Carolina, agreed not to seek his expulsion if he is defeated.

As of Tuesday afternoon, that defeat is all but certain. Alaska's Elections Division is racing to finish its count one day before the statutory deadline. Until last Friday, Democrat Mark Begich led by 814 votes with 26,000 absentee and 15,000 questionable ballots outstanding. Assuming that all these ballots fell in the same proportion as the districts they were from, Stevens should have gained 25 votes.

If, as many believed, there was a last-minute surge toward Stevens on Election Day and late absentees, he wound have gained even more. Instead, Begich's lead increased by 308, with Steven's losing ground in all but one of the legislative districts. This may suggest alternative explanations for Begich's underperformance on Election Day when early returns did not match pre-election polls placing him in the lead.

Alaska's Elections Division counted the state's very reddest districts first, including six of the seven districts Stevens won by 10-to-25 percentage points. Stevens lost ground in every single one. On Tuesday morning, there were still 16,000 absentees and 8,000 "question" ballots outstanding. Using the same formula of allocation in proportion to existing district vote, that would lead to 695 more absentee votes for Begich and 293 more question ballots, which would push Begich's lead to well over 2,000. At this stage, absentee votes are almost automatically counted, since there is no signature match. Question ballots do include some ElectionDay registrants ("H ballots") who are not allowed to vote for U.S. senator.

By mid-afternoon Tuesday in Washington, Begich was ahead by 2,374 votes. By late afternoon, that lead widened to 3,724 votes, or slightly more than 1 percent of the ballots cast.

That's not the end of the road, but it is close. It is unclear if Stevens will seek a recount. That procedure is cumbersome. The Alaska Democratic and Republican Parties have each nominated two delegates to a state review board, which will certify the result on December 2. Then, Senator Stevens is expected to pay $10,000 for an administrative recount, which can be reviewed by the Supreme Court, potentially delaying Begich's confirmation until late December.

So far, it is not look like either side has grounds for a state "election contest," another judicial proceeding that which requires the loser to show that "malconduct," such as intimidation or fraud, changed the outcome. The Senate has apparently been spared an election contest or the other options of exclusion or expulsion (as laid out in my article.) The state courts will also not have to deal with the constitutional dispute over the governor's power to fill a vacancy, since Begich will likely be in for six years.

In his last two Senate elections, Stevens won by 77 percent and 78 percent, respectively.

Meanwhile, in Minnesota

In Minnesota, the GOP noise machine is heating up. The road may be longer, but the result should be pretty bulletproof. The 5 percent audit of unofficial Election Day has found at net of at least 9 votes for Franken, which implies a recount will unearth 171 more net votes for Franken. I think Franken will go into the lead, since (1) Florida-like scrutiny of voter-intent favors low-income, low-education voters, and (2) precinct-counter jams, which can miscount a ballot, occur more frequently in urban jurisdictions. So far, it is a pretty solid performance for ES&S's Model 100 scanner, which has the great virtue of allowing the voter to review and cast his/her own PAPER ballot.

Rejected absentees will become critical. Franken has not been able to inspect the ballots to determine who was rejected for signature mismatches and who for alleged non-registration. Including a significant portion of the rejects from Hennepin County alone would probably push Franken into the lead. Before he appointed the canvassing board, Minnesota Secretary of State Mark Ritchie (the board's only Democrat) said the board will not consider these, which means a count challenge. It now appears the court will hear arguments. The board includes 2 Republican Supreme Court judges (and two lower court judges). In the one case where the Supreme Court reviewed the state board, it reversed in favor of counting ballots. It seems hard to believe that at some stage, the ballots will not be subject to inspection and the voters able to affirm their signatures.

In Minnesota, the recount begins tomorrow at 107 sites. This is an administrative action, subject to Review Board supervision and certification, followed by state Supreme Court review. However, Minnesota law also allows an "election contest," which is a judicial action that could lead to judicially appointed masters supervising yet another count of the paper ballots.

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