Trump DOJ sues to block Alaska US Senate results if Republican incumbent loses

By Tierney Sneed, Ethan Cohen, CNN

(CNN) — The Trump administration has preemptively filed a lawsuit seeking to block certification of Alaska’s US Senate election if the Republican incumbent Sen. Dan Sullivan loses in the critical contest which could decide the balance of power in the Senate.

The lawsuit represents the latest attempt of the Trump Justice Department to insert itself in the administration of elections, running up against the minimal role the Constitution gives the Executive Branch. It alleges that a candidate named Daniel J. Sullivan could confuse voters and wants a court to potentially delay the certification of the election if the incumbent is defeated but would have won if “all votes cast for Daniel J. Sullivan” had “been cast instead for Senator Sullivan.”

The lawsuit is based on a “strange and unusual” legal theory, said Derek Muller, an election law professor at Notre Dame Law School. It’s also unclear, he said, how a court could intervene in the way the DOJ proposes.

The battle for control of the Senate could come down to Alaska, where there has been little reliable polling but where Dan S. Sullivan, the incumbent senator, and Democrat Mary Peltola have campaigned in a close race. Democrats need to net four seats in November to win the Senate, and Alaska is one of several Republican-held states that Democrats are hoping to flip.

The presence of the second Sullivan has brought additional controversy to the race and has already been a source of litigation, as Republicans have alleged he is running a spoiler candidacy designed to confuse voters.

Daniel J. Sullivan is a registered Republican, but state election officials listed him on the ballot without a party affiliation. Sen. Sullivan is labeled on the ballot as “Registered Republican” and “incumbent.”

In the primary, the incumbent Dan Sullivan won 68,726 votes. Daniel J. Sullivan won 4,107.

President Donald Trump took credit for the legal challenge.

“Well, I’m the one that said ‘do it,’” Trump told reporters in Florida on Friday when asked about the lawsuit. The president has regularly complained about the presence of the non-incumbent Sullivan on the ballot.

Trump this month also held a rally in Wasilla, Alaska.

“It’s just cheating,” he said of the ballot having two Dan Sullivans. “They found a guy named Dan Sullivan. They put him up to get a little confused.”

Nate Adams, a spokesman for Sen. Sullivan, said the incumbent will “let the DOJ complaint run its course.”

“Alaskans can tell the difference between a Democrat sideshow and Senator Sullivan’s strong record of delivering for Alaska, a record he’ll keep building on for the next six years,” Adams added.

DOJ says second Sullivan could divert votes from the incumbent

The lawsuit points to the preface of a federal law setting guardrails on states’ voter registration procedures that protects the “integrity of the electoral process” as giving the court the power to intervene.

“The United States likewise suffers an injury when the certification of the election for a federal office is tainted by a frivolous candidacy because that undermines confidence in the make-up and workings of the federal government,” the lawsuit says.

Muller said he had never seen an attempt to use the introduction of the federal voter registration law in the way the DOJ is now.

“They’re just plucking from the preface and saying this gives them a free-wheeling right to enjoin operations in a state, and I just don’t think a court is going to buy that,” Muller said.

Under Alaska’s voting system, the top four candidates from the primary, regardless of party, advance to the general election. On the general election ballot, voters have the option to rank the candidates in order of preference. If no candidate gets a majority of first choice votes, voters’ other rankings come into play. In each round of the tabulation, the candidate with the fewest votes is eliminated, and their votes are reallocated to whoever those voters ranked next highest. That process continues until there’s a winner.

DOJ alleges there is a possibility that voters intending to cast ballots for the incumbent might not rank him at all, or will rank Daniel J. Sullivan over him, resulting in the challenger’s votes going to the Democratic candidate if the race goes into additional rounds of tabulation.

“Even if a majority of Alaskans wish to vote for Senator Sullivan, Daniel J. Sullivan’s presence on the ballot will result in a victory for Peltola,” the lawsuit states.

However, a ranked-choice system could help reduce the impact of this kind of confusion.

Unlike in a traditional election where voters can only pick one candidate, an Alaska voter who wanted to vote for the incumbent could simply rank both Sullivans first and second, in any order. Assuming Peltola doesn’t win a majority of first choice votes, their vote would eventually go to the incumbent, who is likely to have much more support.

In June, ahead of the state’s primary, the Alaska state Supreme Court ruled that Daniel J. Sullivan should be included on the ballot after the state’s Division of Elections had removed him.

Muller noted that Alaska election officials “went out of their way” to reduce voter confusion, by including on the ballot the candidates’ middle initials, identifying Dan S. Sullivan as the incumbent, and leaving off the GOP party designation of the other Daniel Sullivan.

“This is friendly fire, this is suing Republicans in Alaska, I don’t know that is going to be taken well by state officials,” Muller said.

The administration is asking the court to declare unlawful the certification of a result that was “impacted by voter confusion” and to block election officials from certifying that result until there was an “investigation” into whether voters meaning to vote for the incumbent had cast ballots for other Sullivan.

“Alaska’s Division of Elections determined that Mr. Daniel J. Sullivan’s candidacy was intended to mislead voters and compromise the fairness of the ballot,” a DOJ spokesperson said in a statement. “Therefore, the Justice Department, consistent with the National Voter Registration Act enacted by Congress, is taking the necessary steps to ensure that this frivolous candidacy does not undermine the integrity of Alaska’s election or the will of its voters.”

But because ballots would be co-mingled, it is not clear how such an investigation would identify which voters may have cast ballots for a Dan Sullivan they didn’t intend to vote for, Muller noted.

“This is just the stuff that is just impossible to measure after the fact,” Muller said.

He also noted that there are numerous scenarios — such as a win by the Democrat outright without additional rounds of tabulation — which could make the lawsuit irrelevant. If not, Muller said, “there is a high likelihood” it is thrown out for legal reasons.

Vanita Gupta, an associate US attorney general during the Biden administration, said the lawsuit is “meritless.”

“No federal statute authorizes the relief the DOJ seeks and the Alaska Supreme Court has already concluded that this candidate will stay on ballot,” Gupta said. “The Constitution gives Alaska, not the US Justice Department, the authority over who’s on its ballot, how its votes are counted, and the certification of the election.”

Former Alaska state attorney general Bruce Botelho, a Democrat, called the lawsuit “unprecedented” and said that the Alaska Supreme Court’s previously consideration of the issue ” is the final word on interpretation of election Alaska election law.”

Alaska election officials expect to start the ranked-choice tabulation process on November 18, more than two weeks after Election Day, following the deadline for overseas ballots to arrive.

The new case has been assigned Judge Sharon L. Gleason, who was appointed by President Barack Obama. The administration has not yet made any emergency requests for the court to take an immediate action.

Ben Ginsberg, an election law attorney who once was the Republican National Committee’s top election counsel, said that there are many legal reasons why a federal court wouldn’t be inclined to grant what the administration wants. That includes Thursday afternoon’s ruling from the Supreme Court freezing a court ruling blocking a New Hampshire voter ID policy, under the theory that federal courts shouldn’t change voting policies when elections are near.

Ginsberg also noted that, like a recent DOJ lawsuit seeking the segregation of California ballots, this case was filed by the office of a political appointee in Washington that does not normally spearhead this type of litigation.

“I think they must have a client who is demanding it,” Ginsberg said. “There is not a rational legal reason to do it.”

CNN’s Jeremy Herb contributed to this report.

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