In the home stretch to the midterms, the Department of Justice has taken to throwing any legal concoction at the wall to see if it will stick. As I wrote last week, the department has devolved from tenuous to utterly groundless legal arguments. The latest, a genuinely bizarre and hopeless Hail Mary in Alaska, is probably the most far-fetched, even inane, filing I have ever seen come out of Main Justice.
The complaint, filed in federal court in Alaska last Thursday, starts with a tricky little problem: There are two candidates named Dan Sullivan on the ballot. One is the incumbent Republican senator, running neck and neck with Democrat Mary Peltola. The other, Daniel J. Sullivan Jr., is a first-time candidate with far less support, a registered Republican who by his own account has voted for Democrats in the last three presidential elections. There are some indications that Sullivan II stepped forward to provoke confusion and draw votes away from the incumbent. That, at least, is DOJ’s theory; its complaint calls his run a “frivolous candidacy.”
Bizarrely, Alaska has been here before. In 2014, Anchorage’s mayor, also named Dan Sullivan, ran for lieutenant governor on the same primary ballot as the future senator, and a poll found nearly one in five Republican primary voters mixed them up. “Dan Sullivan” would appear to be Alaska’s version of John Smith.
It should surprise no one that the case is completely the handiwork of the political ranks of the administration, including Trump himself. On Thursday, Attorney General Todd Blanche told reporters, “It is not DOJ’s intention to, and it’s never our intention to, improperly interfere with elections or the state certification process.” That night, his department filed the complaint, signed by Stanley Woodward, the department’s third-ranking official and a former Team Trump defense lawyer. On Friday, Trump cleared up any mystery: “I’m the one that said do it.”
The point that controls this case, up one side and down the other, is that the federal government has no role to play in trying to minimize any confusion. It’s 100 percent a matter for the state, as paradigmatically a state-law matter as a divorce or a parking ticket.
In fact, the state has acted. In June, Alaska’s elections director removed the second Sullivan from the ballot, concluding that he filed his candidacy “with a purpose to confuse or mislead.” But a state trial court reversed her, and the Alaska Supreme Court affirmed. The state then built a ballot designed to minimize confusion. The senator appears as “Sullivan, Dan S. (Registered Republican) Incumbent”; the challenger as “Sullivan, Daniel J. Jr.,” with no party label at all. And because Alaska uses ranked-choice voting, any voter who isn’t sure can simply rank both Sullivans.
Most importantly, Alaska’s voters have affirmed that they want Sullivan II on the ballot. They sent him to the general election as one of the top four finishers in the state’s open primary. You can understand why Republicans cried dirty pool, and Alaska Democrats may well have been pretty crafty. But Sullivan II’s presence on the ballot is the choice of the sovereign people of Alaska. That should be the end of the story.
The DOJ is trying to parachute into the case, but it has no parachute. Its complaint is eye-poppingly defective in three separate ways.
First, the department’s entire basis for asserting a federal role is the preamble to the National Voter Registration Act, a 1993 law about, as the name suggests, registering voters. DOJ doesn’t claim Alaska violated any of the act’s provisions. Instead, it claims authority to dictate the state’s certification process because the preamble cites a statutory purpose “to protect the integrity of the electoral process.” That’s like invoking the Constitution’s preamble goal “to promote the general Welfare” to make everyone eat broccoli.
The department vastly overreads the preamble, in any event. The very same section of the act lists its first purposes as increasing the number of eligible citizens who register to vote and enhancing their participation as voters. DOJ skips past those to invoke “integrity” for the opposite end: freezing the votes of an entire state, but only if those votes elect a Democrat.
Second, there is, manifestly, no live dispute. The DOJ asks a court to rule on something that hasn’t happened and may never happen: a Peltola win, by less than the second Sullivan’s total, with ranked-choice transfers breaking a particular way. Even if the case weren’t otherwise ridiculous, any court would tell the DOJ to come back if and when its speculation came to pass. Indeed, in virtually any other election case, the DOJ itself would be making that argument.
Third, the proposed remedy is positively Looney Tunes. If the senator loses and would have won with every vote for Daniel J. Sullivan added to his column, the DOJ wants certification blocked “pending an investigation to determine whether votes cast for Daniel J. Sullivan were meant to be cast for Senator Sullivan.”
Think about what a court would actually have to do to execute such an investigation. Alaska’s Constitution requires that voting be secret, so once a ballot is cast, no one can trace it back to the person who cast it. The investigators would have no one to question. Even if they could find the voters, what would they ask? “Did you really mean it?”
The DOJ wants a court to determine which votes were, in its words, “meant” for the senator. But the best evidence of a voter’s choice is what’s in the oval where they mark their ballots, and once someone has voted, there is no way to rewind the tape and reexamine what the voter “really meant.”
We learned that lesson, bitterly, in 2000. In Palm Beach County, a confusingly designed “butterfly ballot” led voters who wanted to choose Al Gore to punch the hole for Pat Buchanan instead. Conservative statistical analyses establish that at a bare minimum, 2,000 voters, out of some 380,000 who used the ballot, were fooled into switching candidates, in a state Gore lost by 537 votes. Of course, no Magic 8 Ball or Delphic oracle could identify the specific duped voters.
Voters went to court seeking a revote or “a statistical reallocation of the election totals,” essentially the remedy the DOJ now wants in Alaska. The Florida Supreme Court unanimously said no, citing “the reluctance to reach a decision which would result in the disfranchisement of the voters.” Which is precisely what the DOJ is trying to accomplish.
In the last 24 hours, there has been a salvo of motions to dismiss and expedite, by various would-be intervenors. Assuming the court permits intervention, we should expect this case to go nowhere fast.
The DOJ knows that it can’t win this case. It’s all part of an effort to stoke the fires of grievance and try to undermine confidence in the election. If Peltola wins narrowly, Team Trump will have its talking point ready, an extralegal deeply muddled argument for refusing to accept the result.
But there’s no federal role, no legal basis, and no possible remedy. To paraphrase Churchill, the lawsuit is a nullity, wrapped in an absurdity, inside a press release.