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The Justice Department late Thursday filed an unusual lawsuit against the state of Alaska seeking to block certification of its U.S. Senate race if the Republican incumbent loses.
With early voting underway in the contest that could determine partisan control of the Senate, and polls showing a tight race between incumbent U.S. Sen. Dan Sullivan and Democratic challenger Mary Peltola, the Trump administration is laying the groundwork to challenge the Alaska results in some circumstances.
The lawsuit centers on the participation of a second candidate named Dan Sullivan on the ballot, something that the Justice Department said is likely to confuse Alaska voters.
Daniel J. Sullivan, a retired teacher and former member of the Alaskan Independence Party who switched his registration to Republican shortly before entering the Senate race, is one of four candidates for the seat.
Alaska election officials disqualified Daniel J. Sullivan from the ballot in June, but the former teacher challenged the decision. Sullivan rejected any suggestion he was working with Democrats to dilute the vote for Sen. Sullivan and said he ran because he was dissatisfied with the incumbent’s track record. The Alaska Supreme Court ultimately sided with the former teacher and cleared the way for him to be on the ballot.
Alaska’s ballot includes the word “incumbent” next to Sen. Sullivan’s name, but the Justice Department filing argues that the other Dan Sullivan’s presence on the ballot “threatens to mislead Alaskan citizens who want to vote for Senator Sullivan.”
In its lawsuit, the Justice Department said results may be tainted by voter confusion “if: (1) Senator Sullivan does not win the election; and (2) had all votes cast for Daniel J. Sullivan been cast instead for Senator Sullivan and Alaska’s rank-choice process played out accordingly, Senator Sullivan would have won the election.”
In such a case, the Justice Department wants a federal judge to stop election officials from certifying the election “pending an investigation to determine whether votes cast for Daniel J. Sullivan were meant to be cast for Senator Sullivan.”
Legal scholars said the lawsuit appears to have little chance of succeeding.
“It arises from real, valid, recognized concerns about a bad-faith sham candidate, potential confusion, and effective disenfranchisement,” Michael Morley, an election law expert at Florida State University said in an email. “But this particular lawsuit is frivolous and will be quickly dismissed.”
Morley said “any concerns about the sham candidacy could have been raised before the election, before votes were cast,” and that the Senate itself could challenge the results and refuse to seat Peltola if she wins.
Ilya Somin, a constitutional law professor at George Mason University and scholar at the libertarian Cato Institute, also said the lawsuit appeared to be baseless.
“Any law suppressing candidates based on potential voter confusion would violate the First Amendment,” he said in an email.
“As to why DOJ waited so long, I don’t know,” he said. “Maybe this is one of those politically motivated cases they brought only after pressure from on high overruled line attorneys.”
President Donald Trump took credit for the lawsuit on Friday.
“I’m the one that said do it,” Trump told reporters.
Alaska uses ranked choice voting, which means results could take time
The lawsuit is part of a concerted Justice Department effort to inject more federal control over elections, which are the responsibility of state and local officials. Last week, the Trump administration filed a lawsuit in California that seeks to compel the state to segregate as many as 20,000 ballots it says could be cast by noncitizens. California officials say that lawsuit is based on flawed assertions that some registered voters are noncitizens, and legal scholars have said that the Trump administration is unlikely to succeed.
If Peltola wins in Alaska, she would be the first Democrat in 18 years to represent the state in the Senate. The race is expected to be close.
In addition, Alaska is one of two states — the other is Maine — using ranked choice voting to select a winner in a Senate race this year. In Alaska, voters will rank the four U.S. Senate candidates by preference. If none of them win more than 50% of first-choice votes at the outset, Alaska will then shift on Nov. 18th to the ranked choice voting process.
At that point, the candidate with the fewest votes is eliminated and their supporters’ votes will be redistributed to those voters’ second choices. That means that if Daniel J. Sullivan is eliminated, his votes could then go to Sen. Sullivan, depending on how the voter ranked the candidates.
The process continues until one candidate secures a majority.
Even if the Justice Department lawsuit fails, members of the U.S. Senate could try to prevent Peltola from taking the seat. There are some precedents for that.
In 1975, the Senate declined to seat either candidate in a disputed New Hampshire election, eventually declaring the seat vacant and paving the way for a new election. In another case, the Senate overturned the results of a 1924 Iowa election and seated the losing candidate nearly two years later.
“If Senator Dan S. Sullivan loses, and Daniel J. Sullivan’s vote tally exceeds the margin of victory, then the senator’s best bet would be to file an election contest with the U.S. Senate, which is the sole judge of its members’ elections and returns,” Morley said.
Dion Nissenbaum is Votebeat’s senior national reporter and is based in Houston. Contact Dion at dnissenbaum@votebeat.org.
