Judge Sharon Gleason rightly rejects DOJ overreach in Alaska
By Adele Rutherford · Reporting from Atlanta ·
A federal judge rightly dismissed the Justice Department's lawsuit to delay Alaska certification, correctly ruling that courts must protect the secret ballot rather than litigate campaign tactics.
The wrong tool for the job
The Department of Justice has a habit of treating the machinery of democracy like a litigation strategy for a corporate merger. In its latest attempt to intervene in state election administration, the Trump administration sought to use the federal government to pause the certification of Alaska’s U.S. Senate race. The goal was to investigate whether the presence of two candidates named Dan Sullivan on a ranked-choice ballot could cause "voter confusion" and divert votes from the Republican incumbent to the Democratic nominee, Mary Peltola. On Sunday, U.S. District Judge Sharon Gleason dismissed the lawsuit. She correctly identified in reporting by NPR that the government’s requested relief was a blunt instrument that would shatter the very thing it claimed to protect.
The Justice Department argued that the presence of Daniel J. Sullivan Jr. on the ballot constituted a threat to a fair election. The New York Times reported that aides from Peltola’s campaign recruited him to act as a spoiler. A Justice Department spokesperson, Kiersten Pels, stated to Fox News that "Alaskan voters deserve a fair election, not to be misled in an attempt to rig outcomes." But the DOJ’s remedy—stopping the certification process entirely—was a disproportionate response to an allegation of political maneuvering.
Judge Gleason, an Obama appointee, saw the procedural void at the heart of the filing. In her ruling, she noted that the government failed to explain how an investigation could identify voter intent while simultaneously protecting the secrecy of the ballot. "The absence of any explanation from the United States as to how its requested relief could redress its alleged injury while simultaneously maintaining the secrecy of the ballot is telling," Gleason wrote. She further ruled that the requested relief would intrude on Alaska’s responsibility to run its elections.
A pattern of judicial intervention
This attempt to use the courts to manage the mechanics of a state election mirrors the mechanism seen in Bush v. Gore. In that 2000 case, the Supreme Court intervened in the certification and recount process in Florida to resolve disputes over voter intent and ballot counting. The DOJ here attempts to use the National Voter Registration Act to justify its intervention. Yet the fundamental impulse is the same: the belief that if the "score" looks unfavorable, the "process" must be halted to ensure legitimacy.
The DOJ’s argument rests on the idea that the recruitment of Daniel J. Sullivan Jr. was a deceptive act that requires federal oversight before a winner can be declared. This is a dangerous shortcut. If the federal government can pause a certification because of a candidate's name or a campaign's recruitment tactics, then no election is safe from a partisan subpoena.
The risk is that the court becomes a venue for litigating campaign tactics rather than election results. The Washington Post reported that Republicans had also boosted unviable Democratic candidates in the Alaska primaries. A Republican Super Pac boosted two Senate candidates who did not reside in Alaska. If the DOJ’s theory holds, then every instance of strategic candidate placement becomes a federal emergency.
The cost of procedural overreach
The Justice Department is planning to appeal to the 9th U.S. Circuit Court of Appeals. It argues that Judge Gleason dismissed the case on procedural grounds without addressing whether Daniel J. Sullivan Jr. entered the race specifically to confuse voters. The allegations of a "spoiler" scheme are serious, and U.S. Attorney Michael Heyman has confirmed an "ongoing" criminal probe. But the remedy of delaying certification is not the proper legal response.
The law distinguishes between criminal conduct and election administration. If a campaign engages in fraud, the individuals responsible should face the criminal justice system, not the entire electorate. To suggest that the certification of a race should be held hostage to an investigation into candidate identity is to treat the ministerial act of counting votes as a discretionary act of political validation.
Even the incumbent, Senator Dan Sullivan, recognized the need to respect the process. In a Sunday interview with CNN, Sullivan was asked if he would only accept the results if he won. Sullivan responded, "No, I’m going to accept the election results." This is the standard the DOJ should be following.
The legitimacy of our elections depends on the machinery being boring enough to be forgotten. When the Justice Department treats the certification of a Senate seat as a litigation milestone, it spends the very capital of legitimacy it claims to defend. A court should not be used to audit the motives of voters or the strategies of campaigns. It should be used to ensure that once the votes are counted, the result is final.