A federal judge on Sunday rejected the Justice Department’s bid to order Alaska officials to set aside some ballots and hold up the certification of the results in its Senate election in the event of a Republican loss.
In her decision, U.S. District Judge Sharon L. Gleason shot down an extraordinary request from the Justice Department last month to block the resolution of the election if Sen. Dan S. Sullivan (R) narrowly loses. Another candidate with a nearly identical name, Dan J. Sullivan Jr., is also running, which the department argues could confuse voters and propel Democrat Mary Peltola to an unfair victory.
Department lawyers had asked Gleason to delay such an outcome so an investigation could be conducted if Sen. Sullivan loses by a margin smaller than the number of votes won by his similarly named opponent.
In her written opinion, Gleason, a nominee of President Barack Obama, noted that she did not have the authority to segregate certain ballots pending an investigation, as the Justice Department had requested. Furthermore, the judge wrote, the department did not specify how such an investigation could be carried out while respecting the voters’ secrecy choices. She said such an investigation itself would probably result in the very confusion the department said it was seeking to prevent and ultimately undermine confidence in the outcome.
“Clearly, if this Court were to order that certain ballots will be segregated and subject to a future and as yet unspecified investigation by law enforcement, it would likely result in voter ‘confusion and consequent incentive to remain away from the polls,’” she wrote.
The Justice Department did not immediately respond to a request for comment on whether it intended to appeal the decision.
The race is unusually competitive and could determine whether Democrats take control of the Senate. Republicans consider the seat a priority, and President Donald Trump last month said he told the Justice Department to file the lawsuit over how the election would be run. In recent days, he has called for Peltola to be criminally charged and forced out of the race.
Supporters of the incumbent GOP senator have fumed for months about the second Sullivan appearing on the ballot as a Republican. Their complaints went into overdrive last week when the New York Times reported that Peltola’s campaign was involved in recruiting the second Sullivan to run. Peltola has denied involvement.
Justice Department attorneys have seized on that reporting to bolster their claims that voters could be duped into voting for the wrong candidate. Alaska officials, Peltola’s campaign and voting rights groups have called for throwing out the case, especially now that the election is days away and many ballots have already been cast.
Alaska uses ranked-choice voting. Four candidates appear on the ballot in the race for Senate, with Peltola as the only Democrat. If no one gets a majority in the initial count, the lowest-performing candidate will be removed and his or her supporters will have their second choices tallied. That process will continue until a winner is selected.
The Justice Department’s case is premised on a novel reading of the National Voter Registration Act that legal experts have called thin. That law spells out how states conduct voter registration, not how they decide which candidates can run.
The introduction to that law says it was passed to “protect the integrity of the electoral process,” and the Justice Department argues that wording gives it broad latitude to intervene in how states run elections. Such an interpretation would allow it to file an array of election disputes across the country, now as well as under future presidents.
States and localities run elections and typically are allowed broad discretion.
In the Alaska lawsuit, the Justice Department asked to put the results on hold if Sen. Dan Sullivan narrowly loses so officials can investigate whether voter confusion played a role in his defeat. The Justice Department hasn’t explained how such an investigation would be conducted or how the secrecy of ballots would be preserved.
Separately, the Justice Department is conducting a criminal investigation into Dan J. Sullivan’s candidacy. Federal prosecutors recently issued dozens of subpoenas and record preservation notices for text messages and other communications, according to a person familiar with the matter who spoke on the condition of anonymity to discuss the ongoing investigation.
The state is also investigating, according to Alaska Gov. Mike Dunleavy (R).
Peltola has said she had no knowledge of a scheme to recruit Dan J. Sullivan into the race. He maintains his candidacy is legitimate and that he did not enter the race to confuse voters.
State election officials this summer initially tried to keep Dan J. Sullivan off the ballot. He sued, and the state Supreme Court ruled in his favor.
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