The DOJ's Alaska lawsuit is a strike against the rule of law
By Adele Rutherford · Reporting from Atlanta ·
The Justice Department is suing to block the certification of Alaska's Senate race if Dan Sullivan loses, a move that trades legal legitimacy for a partisan outcome.
The Trump administration is wrong. It is attempting to use the Department of Justice to veto an election result before a single general election ballot is cast. This is not a legal strategy to ensure fairness. It is an attack on the process of certification. Certification is the formal process by which election officials verify the vote count and declare a winner. By suing to block this process, the administration is asking a court to replace the will of the voters with a judicial decree.
A preface is not a power
The Justice Department filed its lawsuit, according to Democracy Docket. The suit targets the Alaska Division of Elections. It asks a judge to block the certification of the Senate race if Republican incumbent Sen. Dan Sullivan is defeated. The DOJ claims that a second candidate named Daniel J. Sullivan will confuse voters.
The legal theory is thin. The lawsuit cites the preface of a federal law on voter registration procedures. It points to the "integrity of the electoral process" as a basis for intervention. As Derek Muller of Notre Dame Law School noted, the DOJ is "plucking from the preface" to claim a "free-wheeling right to enjoin operations in a state." A preface is an introduction. It is not a grant of power to the executive branch to override state election results.
The record shows that voters already know who the candidates are, according to CNBC. The voters have already seen both names on a ballot. They have already made a distinction.
The myth of the spoiler
The DOJ argues that Daniel J. Sullivan is a "fraudulent" candidate. The lawsuit claims his "sole purpose" is to benefit the Peltola campaign. This is the strongest case the government can make: that a namesake candidate is a tool for election interference. But the evidence does not support the claim.
Daniel J. Sullivan is not a cipher created by a political operative. He is a former President and CEO of FedEx Ground. He has a documented history of directing financial contributions through the Federal Express PAC. He is a registered Republican. The Alaska state Supreme Court already ruled that he should be included on the ballot.
The DOJ's argument ignores how Alaska's system works. Alaska uses ranked-choice voting. In this system, voters rank candidates in order of preference. If a voter mistakenly picks Daniel J. Sullivan first, they can still rank Sen. Dan Sullivan second. The DOJ claims this will lead to "voter confusion" that benefits Mary Peltola.
The machinery of the preemptive strike
This litigation is not about a specific error. It is about the result. The 2020 United States presidential election shares the same mechanism: the preemptive use of litigation to challenge the legitimacy of election processes and results to prevent an incumbent's defeat. In both instances, the goal is to cast doubt on the machinery of the vote before the count is finished.
The ghost of Bush v. Gore haunts this filing. That case showed how judicial intervention in a contested certification process can settle an election. But that intervention happened after the votes were cast and the counts were disputed. Here, the DOJ is acting before the general election. They are asking Judge Sharon L. Gleason to declare a result "impacted by voter confusion" unlawful before the tabulation even begins on November 18.
Ben Ginsberg, a former top election counsel for the Republican National Committee, stated there is "not a rational legal reason to do it." He is correct. When the government sues to block a state from certifying its own election, it is not protecting the "integrity" of the process. It is attempting to break the process to avoid a loss.
The administration is treating the law as a tool. But the law is not a tool for the winning side to use and the losing side to fear. It is a set of rules that must apply equally to both. If the DOJ believes that a namesake candidate is a valid reason to block certification, they must be willing to use that same tool when a Democrat is the incumbent. They will not.
Legitimacy is a capital stock that spends fast and refills slowly. By filing this suit, the administration is spending the legitimacy of the Department of Justice to protect a single Senate seat. They are teaching the public that the results of an election are merely a suggestion, subject to the approval of the executive branch. This is the definition of a process failure.
The court should dismiss this case. The National Voter Registration Act does not give the executive branch a veto over state certifications. To hold otherwise would be to transform the Department of Justice into a national board of elections. The voters of Alaska deserve a result that is boring, certain, and final.
Sources
- CNN: Trump DOJ sues to block Alaska US Senate results if Republican incumbent loses
- Democracy Docket: DOJ preemptively challenges Alaska election results if Democrat wins Senate race
- The Washington Post: DOJ seeks to block Alaska Senate result if Republican incumbent narrowly loses
- CNBC: DOJ sues to block Alaska from certifying Senate race winner if Republican narrowly loses