Decoy Candidates and the Law

Walter Olson

The shabby practice of recruiting decoy candidates is old hat in American politics, although it is unusual for it to surface in a race for an office as high-profile as that of a US senator. New York Times reporting has now confirmed what I agree with National Review’s Dan McLaughlin is the year’s least surprising scoop: Democratic operatives recruited an obscure schoolteacher named Daniel J. Sullivan to appear on the ballot alongside incumbent Republican Sen. Daniel S. Sullivan. Narrowing the risk of voter confusion, the ballot added “Incumbent” and “registered Republican” alongside the name of the “real” Dan. 

What legal issues are in play here? 

To begin with, nothing about this changes the meritless nature of the Trump DOJ’s federal lawsuit, discussed in this space last week. 

Some have demanded criminal prosecution, although at this point I have not seen anyone point to any criminal law, Alaska or federal, that prohibits the central act involved here, recruiting a same-name candidate. Focus would then naturally shift to the question of whether criminal laws were broken in the course of ancillary acts, such as making false sworn representations or paying campaign actors who cannot lawfully be paid.

The background principle in American law is that decoy dodges are lawful unless a specific law to the contrary exists. Reader John B. writes:

One interesting precedent that hasn’t gotten too much attention is the 1966 primary in the 6th District of Louisiana. Twelve-term Congressman James H. Morrison suddenly faced a strong challenge from one faction of the local Democratic establishment, who were very unhappy that he had voted for the Voting Rights Act of 1965 after a previously unblemished record of voting against all civil rights legislation. One of the two rivals he faced was a mysterious fellow named James E. Morrison, who drew just enough votes in the first round to hold the real Morrison under 50% and force a run-off in which the actual challenger (John Rarick, who went on to serve four terms before losing a primary himself) eked out a narrow victory.

Another case with some historical resonance: when John F. Kennedy was elected to the US House in 1946, his Democratic primary opponents included two Joe Russos, one a popular local politician and the other a janitor of the same name recruited to run by a Kennedy campaign manager. The combined Russo votes were not sufficient to change the outcome. 

At least two much more recent episodes, both arranged by Republicans, ran aground legally due to violations of specific state laws. A “three Bob Fergusons” ploy in the 2024 Washington governor’s race fell apart because of a specific law in Washington state addressing duplicative candidate names. Meanwhile, a Florida state senate seat was successfully flipped in 2020 by running a decoy, Rodriguez, but the plotter was subsequently convicted (in 2024) of making excessive campaign contributions under Florida law and committing other state election law violations.

The Alaska Supreme Court ruled as it did in the Sullivan case in part because lawmakers in Alaska, unlike those in Washington state, have not chosen to legislate against similar-name candidacies. The Mary Peltola campaign and those who acted in its interest will no doubt come under intense scrutiny as to whether their other related actions were consistent with the law. Those determinations must necessarily be based on the state of the law at the time they acted, not on the law as anyone might prefer to retroactively amend it.