The complaint, filed in federal court in Alaska last Thursday, starts with a tricky little problem: There are two candidates named Dan Sullivan on the ballot. One is the incumbent Republican senator, running neck and neck with Democrat Mary Peltola. The other, Daniel J. Sullivan Jr., is a first-time candidate with far less support, a registered Republican who by his own account has voted for Democrats in the last three presidential elections. There are some indications that Sullivan II stepped forward to provoke confusion and draw votes away from the incumbent. That, at least, is DOJ’s theory; its complaint calls his run a “frivolous candidacy.”
It should surprise no one that the case is completely the handiwork of the political ranks of the administration, including Trump himself. On Thursday, Attorney General Todd Blanche told reporters, “It is not DOJ’s intention to, and it’s never our intention to, improperly interfere with elections or the state certification process.” That night, his department filed the complaint, signed by Stanley Woodward, the department’s third-ranking official and a former Team Trump defense lawyer. On Friday, Trump cleared up any mystery: “I’m the one that said do it.”
In fact, the state has acted. In June, Alaska’s elections director removed the second Sullivan from the ballot, concluding that he filed his candidacy “with a purpose to confuse or mislead.” But a state trial court reversed her, and the Alaska Supreme Court affirmed. The state then built a ballot designed to minimize confusion. The senator appears as “Sullivan, Dan S. (Registered Republican) Incumbent”; the challenger as “Sullivan, Daniel J. Jr.,” with no party label at all. And because Alaska uses ranked-choice voting, any voter who isn’t sure can simply rank both Sullivans.
The DOJ is trying to parachute into the case, but it has no parachute. Its complaint is eye-poppingly defective in three separate ways.
The department vastly overreads the preamble, in any event. The very same section of the act lists its first purposes as increasing the number of eligible citizens who register to vote and enhancing their participation as voters. DOJ skips past those to invoke “integrity” for the opposite end: freezing the votes of an entire state, but only if those votes elect a Democrat.
Third, the proposed remedy is positively Looney Tunes. If the senator loses and would have won with every vote for Daniel J. Sullivan added to his column, the DOJ wants certification blocked “pending an investigation to determine whether votes cast for Daniel J. Sullivan were meant to be cast for Senator Sullivan.”
The DOJ wants a court to determine which votes were, in its words, “meant” for the senator. But the best evidence of a voter’s choice is what’s in the oval where they mark their ballots, and once someone has voted, there is no way to rewind the tape and reexamine what the voter “really meant.”
Voters went to court seeking a revote or “a statistical reallocation of the election totals,” essentially the remedy the DOJ now wants in Alaska. The Florida Supreme Court unanimously said no, citing “the reluctance to reach a decision which would result in the disfranchisement of the voters.” Which is precisely what the DOJ is trying to accomplish.
The DOJ knows that it can’t win this case. It’s all part of an effort to stoke the fires of grievance and try to undermine confidence in the election. If Peltola wins narrowly, Team Trump will have its talking point ready, an extralegal deeply muddled argument for refusing to accept the result.
But there’s no federal role, no legal basis, and no possible remedy. To paraphrase Churchill, the lawsuit is a nullity, wrapped in an absurdity, inside a press release.
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