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 state 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 to unilaterally get involved in running the vote. It alleges that the presence of a candidate named Daniel J. Sullivan could confuse voters and wants a court to potentially delay the certification of the election if Sen. Sullivan is defeated next month.
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, on a practical level, how a court could even intervene in the way the Justice Department 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 been in a closely contested 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.
The lawsuit points to the preface of a federal law setting guard rails on states’ voter registration procedures – a preface that explains the law’s goals of protecting 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 introductory federal voter registration law in the way the Justice Department is trying to use it 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, advanced 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 only two candidates remain and there’s a winner.
DOJ alleges there is a possibility that voters intending to cast ballots might not rank the incumbent senator 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.
