‘should Fail On The Merits’: Doj’s Alaska Gambit Is Likely To Go Nowhere

The Justice Department’s lawsuit to block Alaska’s Senate election results if Republican incumbent Dan Sullivan loses is likely a legal nonstarter.

“This lawsuit is abusive in intent and nearly frivolous in argument, and should fail on the merits,” CATO Institute’s Walter Olson said.

It’s the latest effort in a scattershot bid by the Trump administration to commandeer state election procedures, warn of consequences for local election officials who refuse the administration’s entreaties and cast a specter of illegitimacy over a midterm cycle expected to be punishing for President Donald Trump and his GOP allies.

The administration has had few victories in its legal effort to back up Trump’s claims of election fraud. But the Justice Department’s aggressive moves in the final, pressure-cooker weeks of the election cycle underscore the way it’s molded itself in Trump’s image under the stewardship of his former criminal defense lawyer, Attorney General Todd Blanche.

“I’m the one that said ‘do it,’” Trump acknowledged Friday, when asked about the Alaska lawsuit.

In recent months, the department has mounted a campaign to arrest alleged noncitizen voters, producing with great fanfare blurred images of dozens of people being apprehended by the FBI and Homeland Security agents. Earlier this month, the Justice Department sued California to block the state from counting any ballots received from up to 20,000 registered voters federal officials assert are likely to be noncitizens.

The Trump administration failed to convince the Supreme Court to permanently reject the long-standing practice by dozens of states to count late-arriving mail ballots that were certified by Election Day. And the justices blocked the administration’s last-ditch effort to empower the Postal Service to play a central role in determining whether to withhold some voters’ mail-in ballots. Dozens of lawsuits by DOJ’s Civil Rights Division to obtain state voter rolls have failed in courts across the country.

Associate Attorney General Stanley Woodward, the department’s third-ranking official, filed the Alaska lawsuit Thursday. In it, DOJ demands that state officials postpone certifying the election results if the incumbent senator is defeated until they conduct an investigation about “voter confusion” due to the presence of another man named Dan Sullivan on the ballot. But the Alaska Supreme Court rejected an identical challenge in June, a decision that would typically be the end of the line for challenges to state-level election administration.

“This is a political document. It’s another one of their ploys to try to confuse people, distort the process and intrude into something that’s the exclusive prerogative of the states,” said Stan Brand, who represented top Trump allies in Jan. 6-related congressional and criminal proceedings and was once the top lawyer for the House under Speaker Tip O’Neill (D-Mass.).

“The legal argument is one of the worst ones I’ve ever seen,” said Derek Muller, a University of Notre Dame law professor.

Brand noted that the Justice Department manual, which guides DOJ employees, explicitly contemplates a narrow role for DOJin election challenges that is “limited to investigating and prosecuting violations of federal election laws and deterring criminal conduct.”

“The Department has long recognized that the States — not the federal government — are responsible for administering elections, determining the validity of votes, and tabulating the results, with challenges handled by the appropriate election administrators, officials, legislatures, and courts,” the manual reads. “The Department has a limited role in these processes and should generally avoid interfering or appearing to interfere with election administration, tabulation, validation, or certification.”

A Justice Department spokesperson said in a statement Friday that its decision to weigh in is rooted in an alleged violation of the National Voter Registration Act’s blanket requirement for states to “protect the integrity of the electoral process.” Alaska’s Division of Elections initially rejected the other Sullivan’s candidacy as intended to confuse voters, DOJ noted.

“Therefore, the Justice Department, consistent with the National Voter Registration Act enacted by Congress, is taking the necessary steps to ensure that this frivolous candidacy does not undermine the integrity of Alaska’s election or the will of its voters,” a department spokesperson said.

The administration’s Alaska gambit is in the hands of U.S. District Judge Sharon Gleason, an Obama appointee. She had not responded to the filing of the lawsuit as of Friday afternoon.

But judges look askance at efforts by the federal government to micromanage state election procedures, which are entrusted to local officials by constitutional design. The Supreme Court reaffirmed as recently as Thursday that it frowns upon federal court involvement in election procedures “on the eve of an election” — a principle it also recently enforced when it overturned lower-court rulings to reinstate a gerrymandered pro-GOP congressional map in Missouri.

But the late-campaign activity by the Justice Department — along with uncertainty about where it will strike next — has led to unease among national Democrats and prompted an urgent legal response of their own. They describe the administration’s maneuvers as a naked attempt to intimidate state and municipal election workers, as well as sow distrust about the election results, regardless of the outcome.

House Democratic Leader Hakeem Jeffries of New York, Senate Democratic Leader Chuck Schumer of New York and the party’s national campaign organizations urged U.S. District Judge James Boasberg on Friday to quickly force the Trump administration to reveal any demands the Justice Department has made to state and local election officials to refrain from counting certain ballots or to remove a subset of voters from the rolls.

The request also seeks evidence of communications from DOJ to election officials “that reference criminal prosecution, investigation, or any other form of legal action against state or local election officials in relation to their public duties.” As of early Friday afternoon, Boasberg, an Obama appointee, had not yet weighed in on the request.