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Analysis
A federal judge on Nov. 1 dismissed the Justice Department’s bid to delay certification of Alaska’s Senate election, saying ballot rules are the state’s job. With Election Day set for Nov. 3, the fight now turns to a 9th Circuit appeal and a ranked-choice count.
Analysis
A federal judge on Nov. 1 dismissed the Justice Department’s lawsuit seeking to delay certification of Alaska’s Senate election if Republican Sen. Dan Sullivan loses, according to CNBC and the Washington Examiner. U.S. District Judge Sharon Gleason ruled the government had not shown it had legal standing. CNBC reported that the department quickly filed notice that it will appeal to the 9th Circuit. Election Day is Nov. 3.
The context
The case turns on the ballot. CNBC reported that Sen. Sullivan is listed as “Dan S. Sullivan,” with the words “incumbent” and “registered Republican” beside his name. A retired schoolteacher is listed as “Daniel J. Sullivan,” with no label.
According to CNBC, election officials first blocked the teacher from the primary ballot. A state judge allowed him on, and Alaska’s Supreme Court upheld that ruling.
CNBC reported that neither the second Sullivan nor the fourth candidate, Gerald Heikes, is considered a contender. But the race is decided by ranked-choice voting. Voters who rank those two first could swing the result by picking Mary Peltola or Sen. Sullivan second.
CNBC reported that The New York Times said on Oct. 28 that aides to Peltola and the Democratic Senatorial Campaign Committee were involved in efforts to recruit the teacher. Peltola’s campaign and the DSCC deny involvement in his campaign, CNBC reported.
CNBC also reported that the U.S. Attorney for Alaska said on Oct. 30 that criminal and civil investigations into the second Sullivan’s decision to run are under way. President Donald Trump has said he ordered the lawsuit, according to CNBC.
What the judge decided, and what she did not
In a 20-page decision, Gleason did not resolve whether the second Sullivan was recruited to confuse voters, CNBC reported. She ruled instead on standing.
She said the United States never explained how its requested relief could fix its alleged injury while keeping the ballot secret. She called that absence “telling,” according to CNBC.
Gleason noted that early voting was already underway and that cast ballots are mixed so officials cannot link them to voters. She also wrote that the government offered no workable plan to set aside ballots cast for Daniel J. Sullivan on Election Day and then investigate them while preserving secrecy.
She cited a Supreme Court decision that, in CNBC’s words, “strongly cautions” against courts changing election rules on the eve of an election.
DOJ had said it was not asking to change the time, place or manner of the election. Gleason disagreed. She said the requests involve matters that are “the responsibilities of the State, not the executive branch of the federal government.”
She also refused to let DOJ amend the suit again. CNBC reported the department had added a Supremacy Clause claim last week. Gleason found further amendment futile.
A DOJ spokesperson said the court ruled on procedural grounds and did not dispute the department’s argument that the second Sullivan entered the race as a frivolous candidate. CNBC reported that Gleason did not resolve that question.
The take
This section is analysis.
Conservatives have good reason to care about how this ballot came together. If the reports are true that operatives for one party helped put a same-name candidate on the ballot, voters deserve answers. But the New York Times account is a news report, and the Peltola campaign and the DSCC deny involvement. No court has found otherwise.
The remedy DOJ asked for is a separate problem. The government wanted a court order to hold back certification, set aside ballots and probe how voters meant to vote. That would put federal agents in the business of questioning citizens about their secret ballots. A limited-government movement should be wary of that, whoever sits in the White House.
Gleason’s reasoning leans on a principle conservatives have long defended: states run elections. The Washington Examiner noted that she was appointed by former President Barack Obama. But her ruling rests on standing, ballot secrecy and state authority, not on politics. Those are hard points to rebut.
The voters in this story are not the accused. According to CNBC, the investigations announced by the U.S. Attorney concern the second Sullivan’s decision to run, and the courts let him onto the primary ballot. A federal inquiry into the intent of those who voted for him cuts against the constitutional order conservatives say they want to protect.
Trump has said Peltola should be removed from the ballot and prosecuted, according to CNBC. Claims like that belong in court, backed by evidence. The judge made no such finding, and Peltola’s campaign called the suit “baseless.”
The better path for those worried about the recruitment is the one already in motion. That is the U.S. Attorney’s investigation, plus the votes themselves. Sen. Sullivan said on CNN that he would accept the results if he lost, according to CNBC. That is the right standard for both sides. The reports did not say whether the ruling affects the investigations.
Democrats should not take too much comfort either. DSCC Executive Director Devan Barber called the ruling “a victory for democracy.” But the judge did not clear anyone of the recruitment allegations. She said only that the government’s lawsuit failed.
What to watch
- Nov. 3: Election Day. Ranked-choice rounds will decide how second-choice votes, including those for the two minor candidates, are counted.
- The 9th Circuit: DOJ has said it will appeal. The reports did not say when the appeals court will act.
- The investigations: The U.S. Attorney for Alaska says criminal and civil probes into the second Sullivan’s run are ongoing. Any charges would need a court filing or official statement to back them up.
- Certification: The reports did not say when Alaska will certify results. If the race is close, watch whether anyone tries another challenge.
This story is developing and will be updated.
Sources
- CNBC: Judge dismisses DOJ lawsuit over Alaska Senate election
- Washington Examiner: Judge dismisses DOJ bid to delay Alaska Senate results if Republican loses
What it means for you
- Alaska’s state officials, not federal prosecutors, run the Senate vote on Nov. 3, according to the judge’s ruling.
- Because the judge noted that cast ballots are mixed so officials cannot link them to voters, a federal bid to examine individual ballots would face that hurdle, though DOJ has said it will appeal to the 9th Circuit.
- With a 9th Circuit appeal coming, the legal fight could outlast Election Day.
- If the race is tight, ranked-choice counting means second-choice votes for minor candidates could decide it, in a contest that helps determine Senate control.