Alaska Democrats are engaged in a scurrilous dirty trick to confuse Alaska voters. That’s politics at its worst, but it is not against the law.
One of the currently close Senate races that is expected to decide control of the chamber is in Alaska, where two-term Republican incumbent Dan S. Sullivan faces Democratic former Representative Mary Peltola. Sullivan deserves reelection but is currently battling the same undertow facing Republican candidates across the country. Because Alaska’s unique quasi-jungle primary election system sends the top four finishers from the primaries to a single general election, another candidate named Daniel J. Sullivan is in the race, ostensibly as a Republican, but with no other apparent reason to run except to drain the votes of confused voters away from the incumbent.
The False Dan Sullivan tried and failed to get on the ballot without identifying middle initials and has a campaign website that is designed to look as much as possible like that of his senatorial opponent. The Alaska courts upheld his state-court lawsuit overturning the Alaska Division of Elections decision to exclude him from the ballot. The final ballot is set to list Senator Sullivan as “Dan S. Sullivan (Registered Republican) Incumbent,” and the False Dan Sullivan as “Daniel J. Sullivan Jr.”
The False Dan Sullivan scam has some limits. First, given Alaska’s ranked-choice voting system, it will only work if some voters pick only a single candidate. If they rank both Dans Sullivan ahead of Peltola, this does nothing more than gum up a few rounds of the works, because the system ultimately throws out the rankings of all but the two candidates with the most remaining votes. Second, Alaska’s voters have had to pay careful attention to their ballots before, when Lisa Murkowski ran as a write-in after losing the Republican primary. Despite concerns from her backers that voters might not remember how to spell Murkowski, she won. Third, fortuitously enough, there is yet a third Dan Sullivan, Daniel A. Sullivan, a former Republican mayor of Anchorage (and son of that city’s longest-serving mayor), who ran for lieutenant governor in 2014, the same year that Senator Dan S. Sullivan was elected. Thus, this is not the first time Alaskans needed to keep their Dans Sullivan straight.
Still, this is dirty pool, obviously meant only in bad faith and with the potential that a very close election could turn on voters not knowing for whom they are voting. Republicans are right to cry foul. But the Justice Department has gone one step further, filing a federal lawsuit demanding “an order declaring a certification of an election result prejudiced by Daniel J. Sullivan’s inclusion on the ballot unlawful and enjoining defendants from allowing such a certification to occur.”
The lawsuit is not, contra some hyperbole in the press, an effort to steal an election. But the suit is meritless for two reasons. First, it is patently premature for a court to issue an order before an election about the certification of results that haven’t been tallied yet. Unless the election is close enough to be decided by votes for the False Dan Sullivan, there is no case or controversy to support a lawsuit in federal court.
Second, the suit doesn’t mention any federal law that is violated by any of this. All DOJ cites is 52 U.S.C. § 20501(b)(3), the preamble to the National Voter Registration Act, which states that the purpose of the statute is “to protect the integrity of the electoral process.” Much of the worst mischief in election law litigation in recent decades has come from Democrats and their allies persuading liberal judges to read broad powers of judicial activism into vaguely worded constitutional and statutory provisions promising fair elections. Republicans would live to regret turning this preamble into a freestanding judicial warrant to stop any election or campaign practice that strikes any district judge as dishonest or unfair. Congress never intended any such thing.
Democrats for years have urged lawsuits, legislation, and regulations on the premise that voters are easily confused, easily discouraged simpletons who must be protected and coddled. We were told that George W. Bush was only elected due to the butterfly ballot, or that Donald Trump was elected by a handful of random Facebook posts and by entries in his own private checkbook, or that campaign ads and political speech should be tightly restricted, or that voters will fall over in a stiff breeze if asked to produce identification and wait on lines without activists bringing them pizza and water. This is all nonsense, and Republicans should not indulge it.
If the DOJ’s lawsuit gets some headlines and helps alert voters to Democrats’ shenanigans, it may not be all for the bad. But there are better ways to get headlines than filing dead-end lawsuits.