The Justice Department is facing a steep legal challenge as it tries to revive its lawsuit over Alaska’s Senate ballot, legal experts say. With voting set to end Tuesday, they doubt the government can obtain practical relief in time. A separate criminal investigation is still underway.
DOJ appealed after U.S. District Judge Sharon Gleason dismissed the case on Sunday. The lawsuit concerned two candidates named Dan Sullivan on the ballot. Gleason found that federal officials had not shown they had standing to sue, including by explaining how their proposed remedy could address voter confusion without undermining ballot secrecy.
Even if the appeal succeeds, the department may have to seek an injunction from the appeals court or return to the district court for further proceedings. If it loses, the civil case would remain dismissed, though that would not necessarily affect any criminal charges tied to the alleged recruitment of a second candidate named Sullivan.
Election attorney Jason Torchinsky said the judge dismissed the case on a procedural question: whether the government had standing. For DOJ to prevail, he said, it would need to persuade the appeals court to grant relief directly—a difficult step—or go back to the district court. With polls closing Tuesday, he said, the timetable leaves the government with a difficult task.
A reversal would not, by itself, change the election results. DOJ would still need a specific court order, likely after additional proceedings.
Former federal prosecutor and Pentagon official Cully Stimson also expects the department to struggle to pause the Sullivan-Peltola race. He said the ruling did not appear partisan, despite Gleason’s appointment by former President Barack Obama, and noted that voting was still in progress.
Stimson said he was not surprised by the dismissal and did not think the judge’s appointing president was relevant. Seeking an injunction before the election had concluded was a long shot, he said. Any appeal would go to the Ninth Circuit, based in San Francisco.
Still, Stimson suggested the department may be looking beyond an immediate injunction. Filing the case could help build a legal record and require state officials and others to defend the current process. That groundwork, he said, could matter after the votes are counted.
Former Assistant U.S. Attorney Zack Smith said that if the Ninth Circuit does not take up the appeal quickly, DOJ could ask the Supreme Court for emergency review.
The Alaska dispute is unusual, the experts said, but an emergency appeal during an election is not without precedent. In December 2000, after the Florida Supreme Court ordered a manual recount in the presidential race between George W. Bush and Al Gore, Bush’s legal team sought emergency intervention from the U.S. Supreme Court. The justices ruled in Bush’s favor within a week.
The 2000 dispute involved punch-card ballots with hanging chads and a confrontation at the Miami-Dade elections office. Since then, the Justice Department has become familiar with fast-moving appeals, the experts said. Smith said it would not be surprising if the department tried to take the Alaska case to the Supreme Court on an expedited basis.
Stimson said Bush v. Gore offered a procedural comparison because federal courts were asked to intervene in a state-administered election. Florida was running the election under its own laws, he said, but the dispute eventually raised federal issues that led the Supreme Court to step in and halt the recount.
Attorney Alex Charns said the timing had likely made DOJ’s requested remedy impossible. He argued that ballots already cast could not be separated according to voter intent, and that it was not possible to know why an individual voter chose a particular candidate. In his view, the appeal was unlikely to succeed.
A DOJ spokesperson said the court dismissed the lawsuit on procedural grounds but did not reject the department’s claim that Daniel J. Sullivan, also known as “Decoy Dan,” entered the race as a frivolous candidate to confuse voters. The spokesperson said Alaskans deserved a fair election and announced the appeal.
Stimson said the civil case’s outcome would have little bearing on the separate criminal investigation. Evidence gathered by investigators could still support further legal action, he said, including a separate civil lawsuit. As long as the criminal inquiry continues, he cautioned, the matter is not settled.
