President Donald Trump’s Justice Department has gone to great lengths to bulldoze the ethical line between enforcing the law and serving as the legal wing of Trump’s political operation .
The latest episodes: A pair of extraordinary lawsuits in which the DOJ seeks to intervene in the vote-counting process in two states: Alaska and California.
Both lawsuits appear very unlikely to bear fruit; indeed, experts say they basically amount to legal Hail Marys.
But there’s a bigger takeaway. They signal a very notable willingness by Trump’s DOJ to engage in highly questionable behavior to try and put its thumb on the electoral scale for Trump and his fellow Republicans. And the president isn’t even trying to be subtle about his role here — asked about his take on the Alaska lawsuit Friday afternoon, he replied: “I’m the one that said do it.”
In that case, Trump’s DOJ is seeking to block the certification of that state’s Senate race if GOP Sen. Dan Sullivan loses by a small enough margin that it’s possible that another candidate with a similar name, Daniel J. Sullivan , won enough confused voters to cost the senator victory. Alaska is a critical state for Democrats’ hopes of flipping control of the Senate.
In California last week, Trump’s DOJ sought to block state officials from counting the ballots of around 20,000 people that the administration has claimed could be noncitizens.
There are major and readily apparent legal problems with both of these lawsuits.
The Alaska filing claims that certifying Democrat Mary Peltola as the winner without examining whether voter confusion cost Sen. Sullivan the race would violate Alaska’s duties under the National Voter Registration Act to “protect the integrity of the electoral process.”
But Notre Dame Law School Professor Derek Muller wrote on the Election Law Blog on Friday that the law doesn’t actually place any such “duties” on a state .
Rick Hasen, a law professor at UCLA, told CNN: “I would give the complaint in this case a failing grade if it were written by one of my students. It’s an embarrassment to the Department of Justice and is extremely unlikely to succeed.”
The California lawsuit is seen as a similar longshot. The administration argues it can challenge how California has handled purported noncitizen voting because of the Constitution’s Supremacy Clause, which states that federal law prevails when it conflicts with state law. But Muller and Hasen noted there is no federal law regarding how states should verify citizenship.
Beyond that, there are other eyebrow-raising problems.
In Alaska, it is very unlikely that Daniel J. Sullivan would ever actually matter due to the state’s ranked-choice voting, meaning anybody who is confused could rank both Dan Sullivans, and their vote will in all likelihood be counted for the senator. Also, the senator, unlike Daniel J. Sullivan, is listed on the ballot as an “incumbent” and a Republican.
It’s also not at all clear how an investigation would ever ascertain how many votes Sen. Sullivan lost due to voter confusion.
This issue has already been litigated extensively in court, and the Alaska Supreme Court ruled in June that the Daniel J. Sullivan was qualified for the ballot.
So this looks like an effort to inject doubt if Peltola wins, as much as anything.
And then there’s Trump outright saying he directed his DOJ to file the lawsuit, which carries obvious implications for him politically. That’s not surprising at this point — he’s clearly played a role in getting DOJ to prosecute his political foes, for example — but it’s still highly problematic.
(And no, we never saw anything like it with Joe Biden’s DOJ .)
As for the California lawsuit, Attorney General Todd Blanche objected Thursday when asked whether the government was inflicting chaos on the election with its late move.
“It continues to baffle me why anybody … if presented with evidence that there are tens of thousands, 20,000 ineligible voters that are receiving ballots — that there isn’t some motivation, anything to do something about that,” Blanche said.
The problem is that the administration has been crying wolf about noncitizen voting for a very long time. It has regularly claimed numbers that utterly fell apart under scrutiny .
It claimed there were as many as 16,000 noncitizens on the voter rolls in Nevada, for example. It later sharply pared that number back to 185. But when Nevada probed the cases, it found all 185 were citizens .
A federal judge this week cited that flawed data while halting portions of the Department of Homeland Security’s investigation of purported noncitizen voting in a series of states, including California.
The judge cited how the efforts could ultimately mostly amount to “ interference or intimidation .”
And that’s really the point here. It’s one thing to file lawsuits that target legitimate issues; it’s another to file longshot efforts for political purposes or even just to apply pressure.
The 2020 election showed that lawsuits don’t need to succeed to have an impact. Trump’s many wild and false claims of mass voter fraud whipped his supporters into a frenzy, with many hundreds of them later attacking the US Capitol on January 6, 2021, when legal avenues failed.
Even absent threats of a violent uprising, these kinds of legal efforts could deliver a pretext for other extraordinary action related to the election — which Trump has repeatedly left on the table .
What happens if the courts won’t step up to (supposedly) prevent Democrats from cheating to win the Alaska Senate race? What happens if they won’t assist the federal government’s efforts to prevent (supposed) illegal votes in California?
Think about the things a president could justify.
Blanche was asked Thursday whether the Justice Department would ever get involved in the certification process or try to block states from certifying their elections. He declined to rule it out but suggested it would only be in a “doomsday scenario.”
Shortly thereafter, we found out the DOJ is indeed moving to block a state from certifying its election — at least conditionally — because Trump told it to.
