Judge dismisses DOJ lawsuit seeking to block election results if Republican Sen. Dan Sullivan loses

U.S. District Judge Sharon Gleason has dismissed a Justice Department lawsuit seeking to delay or block the election results if Sen. Dan Sullivan loses.

The Justice Department wanted the judge to halt certification of the election pending an investigation into whether voters who chose the other Dan Sullivan on the ballot were confused. Gleason said that wasn’t possible.

“The United States provides no workable plan for how it proposes to segregate ballots cast for Daniel J. Sullivan on Election Day and then conduct an unspecified court-ordered ‘investigation’ of those ballots in a manner that would preserve voter secrecy,” Gleason said in a 20-page ruling Sunday morning.

The decision comes just two days before Election Day. An hour after its publication, the Justice Department filed a notice of appeal. But at least for now, the decision closes the door on one element of the federal government’s attempt to get involved in Alaska’s Senate race. The contest, primarily between Sen. Sullivan and Democrat Mary Peltola, is one of a handful of toss-up races that will decide which party controls the upper chamber of Congress.

President Donald Trump, who said he ordered the Justice Department trial, has argued for months that a second Dan Sullivan on the Alaska ballot could confuse voters and siphon votes from the Republican incumbent of the same name. The president, along with Sen. Sullivan and other Republicans, are calling the challenger, a retired St. Petersburg teacher, a “sham” and a “hoax.”

The Justice Department’s case, filed Oct. 22, sought to prevent the state “from certifying any results that could be influenced by voter confusion.” He indicates that confusion could be at play if Senator Sullivan lost, but that he would have won if the votes for both Sullivans had been counted for him. Federal lawyers sought an order requiring the state to “preserve and segregate” ballots marked for challenger Sullivan “pending an investigation” into whether the voter was confused.

The state, represented by the Alaska Department of Law, called the idea “half-baked” and said an investigation would be impossible because ballots do not have voters’ names on them and are mixed in the box to protect voter privacy.

“The Court cannot order the Division to direct election officials to intercept and examine voters’ ballots before they are fed into voting machines in order to ‘separate’ those who rank (challenger) Daniel J.,” the State’s response states.

The Division of Elections says the ballot already minimizes voter confusion. One candidate is listed as Dan S. Sullivan, Republican incumbent. The other is on the ballot as Daniel J. Sullivan, Jr. with no party affiliation.

Each state, according to the U.S. Constitution, has authority over its own elections. Alaska law does not prohibit candidates from running as spoilers, and the Alaska Supreme Court ruled this summer that the St. Petersburg man had the right to appear on the ballot.

Beyond the DOJ lawsuit, Alaska U.S. Attorney Michael Heyman said Friday that the federal government is also investigating whether a crime may have occurred.

“There is an increase in the resources of the FBI, as well as the resources of this office, to ensure that the integrity of the election remains in place,” he told reporters.

Heyman repeatedly referenced a New York Times report that appeared to support what Sen. Sullivan and other Republicans had been alleging for months: that Democratic operatives had an elaborate plan to recruit poll troublemakers to help Peltola. The article said a fired Peltola campaign manager received text messages showing members of Peltola’s team were involved. The Times also quoted the campaign aide as saying Peltola knew about it, which Peltola denies.

Although Heyman did not cite any criminal laws that might apply, a federal investigation into possible voter confusion appears to be underway in Southeast Alaska.

State Rep. Rebecca Himschoot, an independent from Sitka, said she learned Friday that FBI agents visited at least two of her constituents, in Sitka and Petersburg, to see if they knew who they were donating to when they made contributions to Dan J. Sullivan’s campaign.

Himschoot called it “scandalous.”

“The people I serve feel harassed and invaded, and I guess that makes me a little angry,” she said.

Challenger Sullivan has raised about $20,000 and is $30,000 in debt. Almost all of his contributions over $200 came from St. Petersburg residents. Himschoot said she was among those who made a contribution to the St. Petersburg candidate.

“It’s not supported by Republicans. It’s not supported by Democrats,” she said. “He’s just a retired teacher who ended up in the Supreme Court, which comes with legal fees. So a lot of us donated.”

A survey published Friday shows Peltola with a two percentage point lead over the senator. We see the challenger Sullivan winning more than 4% of the vote.