There are just days before voters across the US head to the polls in one of the most consequential midterm ballots in recent history.
Polling suggests Republican candidates, buffeted by economic and political headwinds largely attributed to Donald Trump, are facing losses in multiple states, with the party projected to potentially lose complete control of Congress.
While Trump has crisscrossed the nation in an effort to drum up support, the President has also mounted a stunning legal push to prevent Democrats from emerging victorious.
Nowhere are those controversial tactics more evident than in Alaska and California, where Department of Justice (DoJ) officials are fighting to effectively prevent votes being counted in order to preserve what they deem “election integrity”.
As millions of voters prepare to cast their ballots on 3 November, here are the two legal brawls which are threatening to upend the US midterms.
Alaska: A tale of two Daniel Sullivans
The Senate race in Alaska could prove crucial in determining whether or not Democrats are able to wrest control of the upper house from Republicans.
The contest has pitted incumbent Republican Daniel S. Sullivan against former Democrat representative Mary Peltola, with polling group FiftyPlusOne giving the latter a slender two point lead.
Non-partisan analytical group Cook Political Report had originally classed the race as “lean Republican”, but shifted its prediction to “toss up” in July.
Sullivan has struggled to gain momentum due to significant affordability concerns in the state, in addition to Trump’s flagging popularity with voters.
However, Republican state election officials had also been contending with another issue: there are two Daniel Sullivans on the ballot.
Daniel J. Sullivan insists he is running of his own accord, but Republican officials at state and federal levels have accused him of being a “plant” by Democrats as part of an effort to siphon off votes.
A legal bid to kick him off the ballot failed at the Alaska Supreme Court, and state officials have since determined he will be listed without a party affiliation on the ballot and under his full name: Daniel J. Sullivan Jr.
This, however, was not enough for Trump, who ordered the DoJ to sue in order to prevent Alaska certifying the results of the race “if: (1) senator Sullivan does not win the election; and (2) had all votes cast for Daniel J. Sullivan been cast instead for senator Sullivan and Alaska’s rank-choice process played out accordingly, senator Sullivan would have won the election”.
Peltola quickly dismissed the move as “a blatant, despicable political threat”, but a New York Times report claiming her campaign staffers had been involved in an effort to recruit Daniel J. Sullivan prompted state and federal officials to double down.
Sullivan has struggled to gain momentum due to significant affordability concerns in the state (Photo: Kent Nishimura/AFP)Alaska’s top federal prosecutor, US Attorney Michael Heyman, held a press conference on Friday where he explained a criminal investigation was underway into Daniel J. Sullivan’s candidacy, in addition to the DoJ’s civil suit seeking to block certification.
Asked to provide details on what crimes prosecutors believe may have been committed Heyman said: “Because this is an ongoing investigative matter, we can’t discuss the specifics of those investigative steps, and who or may or may not be involved”.
Legal fillings in the civil suit submitted after the press conference revealed the DoJ had requested a judge to order state officials to “preserve and segregate all ballots ranking Daniel J. Sullivan for the purposes of investigating whether such ranking was the product of voter confusion, should such an investigation become necessary”.
The fillings also demanded Peltola”s campaign hand over all “internal and external conversations… regarding its efforts to recruit Daniel J. Sullivan to run for office” and sought the Democratic Senatorial Campaign Committee’s (DSCC) “internal and external conversations regarding its efforts recruit Daniel J. Sullivan to run for office”.
Speaking at a campaign event on Friday evening, Peltola denied any involvement with Daniel J. Sullivan’s campaign.
“I want fewer candidates in the primary. I’m not out soliciting more competition,” she told supporters.
The DSCC also issued a statement saying it was “not involved with Dan J. Sullivan”.
California fights threats, claims of illegal voting
California has been at odds with Trump throughout the majority of his time in office, with Governor Gavin Newsom frequently pushing back against the President’s agenda.
Tensions between the state and the federal government have reached a new low in recent weeks, however, after the DoJ sued alleging thousands of non-citizens had been provided with ballots.
Trump has frequently claimed voting by non-citizens is a widespread issue which threatens to undermine US elections, despite producing no substantive evidence to support that argument.
Earlier this year, Department of Homeland Security (DHS) officials claimed as many as 190,000 non-citizens were enrolled in California – the lawsuit alleges around 20,000 were wrongly provided with ballots.
The DoJ argues California should now be made to set aside all ballots returned by those on the list of “likely” non-citizens, a move which could result in some voters being disenfranchised.
On Friday an appeals court rejected that argument, siding with local officials who said it would be almost impossible to identify returned ballots from those on the list.
“As the district court found — and we discern no clear error — there is no feasible way to identify and segregate the ballots of specific individuals without potentially catastrophic effects on the entire system,” California’s 9th Circuit Court of Appeals panel wrote in a 2-1 ruling.
Trump has frequently claimed voting by non-citizens is a widespread issue which threatens to undermine US elections (Photo: Kamil Krzaczynski/AFP)The DoJ did not immediately respond to the verdict, but representatives have previously indicated they could launch an appeal to the Supreme Court.
In addition to the lawsuit, the DoJ was also barred, in a separate case, from threatening or coercing election workers to stop processing ballots.
Subpoenas obtained by the Associated Press on Thursday revealed the top federal prosecutor in Los Angeles, Bill Essayli, was pushing local officials to hand over communications relating to earlier DoJ letters outlining the allegations of non-citizens voting in the state.
Essayli has warned: “Any election official who knowingly processes the ballot of a noncitizen is opening themselves to legal jeopardy”.
Several labour unions had sued to prevent what they argued was an attempt by the DoJ to intimidate election workers.
Experts say cases ‘flimsy’, but could cause chaos
Elections in the US are regulated by states and not the federal government, which has led many experts to question the legitimacy of lawsuits from the DoJ.
The civil suit seeking to block the certification of the result in Alaska appears to rely on a clause in the preamble to the National Voter Registration Act, which requires states to “protect the integrity” of elections.
The DoJ argues that single clause conveys upon federal courts the power to overturn election results.
In addition, DoJ officials have so far failed to outline how they intend to demonstrate voters were deceived when casting ballots in Alaska, a process which will likely be subject to considerable scrutiny.
Meanwhile, officials in California have repeatedly questioned the data and methodology used to compile the DoJ’s list of “likely” non-citizens.
A review of a portion of the list by local election administrators appeared to show some of those listed did hold US citizenship.
However, in an analysis, Wendy R. Weiser and Sean Morales-Doyle, both of the Brennan Centre for Justice, wrote the apparent weakness in the Alaska case did not appear likely to deter the DoJ from pursuing similar lawsuits elsewhere.
“There’s every reason to think that the same Justice Department that brought this flimsy legal case may be readying similar postelection challenges in other states,” the election experts said.
Trump and the DoJ have not “given up on election meddling”, they added, raising the prospect of further chaos even as millions of Americans cast early votes in the build-up to 3 November.
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