There are so many things wrong with the lawsuit filed by President Donald Trump’s Department of Justice to block certification of the Alaska U.S. Senate election that it’s hardly worth listing them all.
For one thing, the issue should have been — and indeed was — litigated and decided months ago. To recall, the issue was whether a second Dan Sullivan was entitled to be on the ballot as a candidate competing against incumbent Republican Sen. Dan Sullivan.
The two Dan Sullivans have different middle initials. The incumbent’s is S, and the challenger’s is J (and he’s also a Jr.). On the Alaska ballot, the word “Incumbent” appears next to “Dan S. Sullivan,” as does the label “(Registered Republican).” Nothing appears next to “Dan J. Sullivan, Jr.” Still, the incumbent’s supporters are concerned that some voters might mistakenly vote for Dan Sullivan the challenger, and perhaps even enough of them to cause the incumbent to mistakenly lose the election.
Even more important, regardless of timing, there is no law that gives Trump’s Department of Justice authority to sue over this issue.
But this concern is significantly mitigated by the fact that Alaska uses instant runoff voting (a version of ranked choice voting), which permits voters to rank candidates in order of preference and, when tabulating the results, eliminates the candidate with the fewest first-choice votes and transfers the ballots that ranked the eliminated candidate first to whichever other candidate is ranked next on the ballot. The tabulation process repeats this elimination-and-transfer process until there is a winner with a majority of votes.
Consequently, voters who mistakenly rank Dan J. Sullivan Jr. first and Sen. Dan Sullivan second will have their ballots transferred to the incumbent after the other one is eliminated in the instant runoff process. Only if more voters rank the challenger ahead of the incumbent, or if they don’t bother to rank both Dan Sullivans — two extremely unlikely scenarios — will there be a risk of the incumbent Dan Sullivan mistakenly losing to the challenger.
In any event, in June the Alaska Supreme Court ruled that the second Dan Sullivan should be on the ballot, rejecting the argument that the risk of confusion should keep him off. And again, the way the two names appear on the ballot essentially solves the problem. Thus, anyone wanting to vote for the incumbent, or the Dan Sullivan they know to be a Republican, should have an easy time doing so.
The important point, however, is that the state’s highest court settled the matter months ago, meaning that the Trump administration has no justification for going to court in an effort to unsettle it now.
Even more important, regardless of timing, there is no law that gives Trump’s Department of Justice authority to sue over this issue. The only thing his DOJ cites in support of its suit is the statement in the preamble to the National Voter Registration Act that one of its purposes is “to protect the integrity of the electoral process,” but a prefatory statement of purpose in a statute’s preamble is not a substantive source of legal authority, and a voter registration statute has nothing to do with how the names of candidates appear on a ballot. So, while the NVRA does give the DOJ the power to seek an injunction in support of its substantive provisions, that power in no way extends to the department’s suit over the content of Alaska’s ballot.
In stating this key point, it is important not to overstate the limits on the ability of the federal DOJ to litigate in election cases. The Voting Rights Act, for example, authorizes the Justice Department to sue to protect against racial discrimination in voting, including specifically by seeking an injunction to order state or local officials to count votes and, in circumstances where necessary, to “require[e] the inclusion of their votes in the total vote before the results of such election shall be deemed final and any force or effect given thereto.”
Shortly after the passage of this landmark statute in 1965, the DOJ invoked this authority in the context of the notorious Sheriff Jim Clark’s re-election bid after his role in attacking the peaceful marchers on the Edmund Pettus Bridge in Selma, Alabama, on Bloody Sunday. In the primary election, at Clark’s request, the relevant local officials (who were Democrats because it was a primary) had excluded six boxes of ballots from precincts with predominantly Black voters. President Lyndon Johnson’s DOJ then immediately sued in federal district court under the VRA to have the six boxes of ballots included in the official certification of the election. Johnson’s DOJ prevailed, and the court “ordered” the local officials “to re-declare and recertify the results of the May 3, 1966 primary election, based upon all the eighty boxes in Dallas County, Alabama,” including the six that had been previously excluded.
This VRA precedent illustrates that in some contexts there may be an appropriate role for DOJ litigation to block the certification of an election by state officials. But it should be abundantly clear that this VRA precedent is by no means applicable in the context of the present case in Alaska.
The Alaska case is different not merely because it does not involve the VRA or racially discriminatory denial of equal voting rights. It also concerns an election for a U.S. Senate seat, rather than a county sheriff’s office. That matters because Article 1, Section 5 of the Constitution grants each chamber of Congress the power to be “the judge of the elections … of its own members.” This means that the Senate itself, and not a federal court, gets to decide whether having two Dan Sullivans on the ballot was too confusing for the voters. Until then, the result of the election must be certified according to state law, so that it can be presented to the Senate. (Insofar as the DOJ may have some inherent authority to sue to enforce constitutional provisions, that authority cannot contravene other constitutional provisions, such as the right of the Senate to adjudicate any disputes regarding the results of its elections.)
Timing is also a crucial component here. Both chambers of Congress meet on Jan. 3 to seat their new members after November’s election. Because each chamber of Congress has the constitutional authority to decide whether the election of a new member is valid, it’s imperative that there be no unnecessary delays that deprive each chamber of its entitlement to exercise this authority starting on Jan. 3. Court cases addressing issues concerning the certification of elections that the relevant chamber of Congress will ultimately decide shouldn’t, by means of protracted proceedings, interfere with the chamber’s prerogative.
Trump’s DOJ may be bringing its lawsuit regarding Alaska’s Senate seat not so much because it thinks it can win the case — that would be delusional given how meritless it is — but rather in the hope that it may be able at least to delay final certification of the election, so that a Democrat declared the winner cannot be seated on Jan. 3. This kind of delay tactic must not be permitted to succeed.
It may be able at least to delay final certification of the election, so that a Democrat declared the winner cannot be seated on Jan. 3. This kind of delay tactic must not be permitted to succeed.
The Justice Department’s lawsuit may be uniquely embarrassing, likely filed only because Trump himself insisted on it. Unfortunately, there’s good reason to believe that Trump will want his DOJ to similarly meddle in other congressional midterm races. As long as this meddling comes in the form of lawsuits filed in federal court, we can and should expect the federal judiciary to reject any DOJ involvement that has not been explicitly authorized in the way that the VRA provides.
But it is not enough for the courts to come to the correct conclusion. They need to do so quickly, so there’s no risk that the litigation remains unsettled when it’s time for the newly elected members of Congress to convene in January.
The post Everything wrong with the DOJ’s uniquely embarrassing lawsuit against Alaska appeared first on MS NOW.
Author: Source Author
From MS Now.
Leave a Reply