It seems that the effort to find a fake Dan Sullivan with which to confuse voters was not only intentional but far-reaching.
Today’s bombshell New York Times report on the “Decoy Dan” (or “Dans Sullivan”) effort in Alaska is finally turning attention to the travesty underway in the Last Frontier. It seems that the effort to find a fake Dan Sullivan with which to confuse voters was not only intentional but far-reaching.
My friend, former colleague, and former chairman of the Federal Election Commission, Sean Cooksey, and I argued at the outset that it may in fact be criminal. This new reporting does nothing but expand the scope of the conspiracy that the Department of Justice should be investigating.
The discussion about the Alaska conspiracy, though, has presented various questions about what is and isn’t fair game when it comes to dirty tricks. Much of the Alaska conspiracy, for example, was centered on a view that ranked-choice voting (RCV) coupled with a dim view of native intelligence within the Alaska electorate could yield effective chicanery to play the rules against incumbent Senator Dan Sullivan.
That’s a standard-fare dirty trick. It’s underhanded, sure, and it depends on the assumption (now public) that Democrats think Alaskans are dumb. But it’s playing the game by the terrible rules in place.
A local D.C. Mensa meeting at CNN echoed these themes. Dana Bash argued, “There’s a socialist running in Ohio with the hopes of taking votes away from the Democrat, Sherrod Brown.” Same thing, right?
Decoy Dan is different. Finding someone with the same name as the incumbent isn’t designed to sow ideological confusion or maximize outcomes in a bad system. It’s designed to take voters who intend to vote for the incumbent and trick them into not doing so even though they want to.
Here’s an analogy: Let’s say in the Old South local Democrats work with the White Citizens Council to set up official-looking alternate voting stations in black neighborhoods on Election Day and plan simply to throw away the fake ballots. The rump GOP sues over it, and the corrupt state supreme court says it’s fine under state law. Most voters vote the right way, but some go to the fake voting stations and think they’ve voted for their preferred candidate, but they haven’t because it’s fake. That’s voter suppression, and it’s illegal.
It’s also what they’re doing in Alaska, only instead of a fake voting booth (approved by the crooked state courts) they’re using a fake candidate with the same name (also approved by the crooked state courts). It’s suppressing disfavored votes by tricking voters into thinking that they’re voting one way when, in fact, they aren’t.
Again, this is different from lawful trickery. Yes, Dana, there’s a socialist on the ballot in Ohio other than Sherrod Brown. If Chuck Schumer wants to amplify Ralph Norman’s claims in South Carolina that Senator Darline Graham isn’t a “real conservative” and therefore voters should stay home or write in Norman, that’s well within his rights. The same goes for Democratic efforts to amplify the Epstein files in a way that discourages Republican voters. It’s a dirty trick and — given Epstein-pal Reid Hoffman’s lavish funding of Democratic efforts — more than a little hypocritical, but that’s about persuading voters on how they should vote. There’s no law saying that political parties need to be honest.
What they can’t do is suppress actual voting intentions. In our article on Decoy Dan, Cooksey and I referenced the Doug Mackey prosecution brought by the Biden DOJ. Mackey, a kid, had sent out an official-looking meme on social media that urged Democratic voters to “skip the line” and vote by text. He was convicted by a New York jury, and the conviction was thrown out on appeal. While many constitutional arguments were made against the prosecution, Chief Judge Livingston threw it out on the merits because there was no evidence that Mackey had actually conspired with anyone (a necessary predicate for a “conspiracy against rights”). Furthermore, there was no evidence at trial that he actually tricked anyone into voting by text.
Had the Mackey facts supported the prosecution’s theory, though, you can see why it would be different from other dirty tricks. Voters would be intending to vote for Hillary and doing it incorrectly — as in the fake voting station hypothetical. That’s different in kind from duping suggestible voters into voting Libertarian (they intend to vote Libertarian albeit for bad reasons) or staying home (they intend to stay home for same).
Another similar case was that of the notorious Jesse Helms mailers of 1990. The Helms campaign sent almost 150,000 postcards to Democratic voters falsely warning them that they couldn’t vote if they had moved within the last 30 days and explaining the criminal penalties involved with voting fraud. The goal was clearly to dissuade them from voting due to perceived criminal exposure based on an incorrect recitation of the law. The relevant parties ended up entering into a civil consent decree with the DOJ in 1992 for having violated the voter-intimidation laws.
You can read about the Helms history over at the liberal Campaign Legal Center (CLC). Incidentally, the longtime head of the Campaign Legal Center is a senior attorney at the Caplin & Drysdale firm, which, according to the FEC, is the “compliance” firm being used by Decoy Dan. How’s that for irony? Perhaps an enterprising journalist can ask the CLC how Peltola’s “ballot composition project” compares with Helms’s “ballot security program.”
The law is appropriately indulgent when it comes to electoral dirty tricks. Democracy and persuasion are messy businesses. While Mary Peltola may want it to be illegal to lie to voters generally (again, ironic), it isn’t. What you can’t do is suppress voters from casting their intended vote — whether that’s by threatening them (like Helms) or tricking them (like Peltola).
Ranked-choice voting is terrible because it lends itself to all kinds of legal dirty tricks. Had the Democrats stuck to those, they wouldn’t be in the situation in which they currently find themselves. Tricking voters into throwing away the vote they intend to cast due to deliberate confusion is different in kind and should be treated as such.