The Trump administration has filed a preemptive action aimed at blocking the certification of Alaska’s U.S. Senate election if incumbent Republican Sen. Dan Sullivan loses in the state, which could decide the balance of power in the Senate.
The lawsuit represents the latest attempt by the Trump Justice Department to interfere in the administration of elections, running up against the minimal role the Constitution gives the executive branch to become unilaterally involved in the conduct of the vote. He alleges that the presence of a candidate named Daniel J. Sullivan could cause confusion among voters and wants a court to potentially delay 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, as a practical matter how a court could even intervene in the way the Justice Department has proposed.
The battle for control of the Senate could come down to Alaska, where there have been few reliable polls but where Dan S. Sullivan, the incumbent senator, and Democrat Mary Peltola have engaged in a hotly contested race. Democrats need to pick up four seats in November to win the Senate, and Alaska is one of several Republican states Democrats hope to flip.
The presence of the runner-up Sullivan has brought additional controversy to the race and has already been a source of litigation, as Republicans have alleged that he is running a spoiler candidacy intended to confuse voters.
Daniel J. Sullivan is a registered Republican, but state election officials put him on the ballot without party affiliation. Senator Sullivan is labeled on the ballot as “registered Republican” and “incumbent.”
In the primary, incumbent Dan Sullivan won 68,726 votes. Daniel J. Sullivan won 4,107.
The lawsuit points out that the preface to a federal law establishing guardrails on state voter registration procedures — a preface that explains the law’s goals of protecting “the integrity of the electoral process” — gives the court the power to intervene.
“The United States is also harmed when the certification of election to federal office is tainted by a frivolous candidacy, because it undermines confidence in the composition and operation of the federal government,” the lawsuit states.
Muller said he has never seen an attempt to use the federal capstone voter registration law in the way the Justice Department is trying to use it now.
“They’re just taking advantage of the preface and saying that gives them the right to ban operations in a state, and I just don’t think a court is going to accept that,” Muller said.
Under Alaska’s election system, the top four candidates in the primaries, regardless of party, advanced to the general election. In general elections, voters have the opportunity to rank candidates in order of preference. If no candidate receives a majority of the first-choice votes, the voters’ other rankings come into play. In each round of counting, the candidate with the fewest votes is eliminated and their votes are reallocated to the candidate ranked second by those voters. This process continues until there are only two candidates left and there is a winner.
The DOJ alleges that it is possible that voters intending to vote may not rank the incumbent senator at all, or rank Daniel J. Sullivan above him, which would result in the challenger’s votes going to the Democratic candidate if the race moved to additional tabulation rounds.
“Even if a majority of Alaskans wish to vote for Senator Sullivan, the presence of Daniel J. Sullivan on the ballot will result in a victory for Peltola,” the lawsuit states.
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