DOJ Sues to Prevent Certification of Alaska Senate Winner (If It's a Democrat)

The US Department of Justice today filed a lawsuit against the state of Alaska seeking to enjoin certification of a winner in the closely contested Alaska race for the US Senate—at least if that winner is a Democrat and the result is close enough. It cites possible confusion between two candidates, both named Dan Sullivan. The Cato Institute invited me to respond with a statement, which follows.

Walter Olson, senior fellow at the Cato Institute, writes: 

I believe that this lawsuit is abusive in its intentions and borders on frivolous in its arguments, and that it is destined for defeat in the courts should it reach the merits.

It borders on frivolous because it attempts to stretch a federal statute, the National Voter Registration Act (NVRA), beyond recognition by snipping language from the law’s preamble and treating it as if it creates vast and open-ended new duties that the federal government can enforce on states. That is not a natural reading of the text, nor is it one that courts have taken. If accepted, it would suddenly federalize many issues of local election administration.

It is abusive because the supposed federal claims are being sprung from the weeds at the last minute when they could have been raised long ago, when courts could have considered them in a more unhurried way. 

It invites suspicions of bad faith by omitting any acknowledgment that Alaska’s printed ballot labels one of the two Sullivans distinctly as “incumbent,” thus helping dispel confusion for a reasonable voter. In so doing, Alaska has addressed the hazard without walking into a different hazard (curbing voter choice by striking an otherwise qualified candidate) in a way that is within the balanced discretion of a state administering its own election law. Remarkably, the DOJ filing itself reproduces the relevant section of the ballot that includes the label “incumbent” without mentioning this telling fact. 

This lawsuit is an assault on the constitutional design by which states, not the federal government, run elections. The issue in question is one for the Alaska Supreme Court to decide under Alaska law, and the Alaska court did just that. If Congress in future wants to use its limited override powers to change things, it will need to speak clearly.

In the aftermath of the 2020 election, courts in the United States made clear that they would not allow meritless litigation to steal an election. They may soon have to make that clear again.