Alaska’s Republican governor ordered an investigation into Democrat Mary Peltola’s Senate campaign Wednesday after The New York Times reported her campaign was involved with another person named Dan Sullivan ending up on the ballot alongside Sen. Dan S. Sullivan, the Republican incumbent. That report that Peltola’s campaign attempted to put a finger on the scale provoked a fresh round of outrage from President Donald Trump, and, at first glance, it may have seemed to support an unprecedented lawsuit by the Department of Justice lawsuit to pre-emptively discredit a Peltola victory. But not even Wednesday’s political bombshell justifies the DOJ’s involvement.
There’s a lot to find concerning about the Peltola campaign’s shenanigans, but the federal government has no power to force Alaska to alter its election procedures.
The Peltola campaign denies it did anything untoward, but there’s plenty to be concerned about in the Times’ reporting. According to Peltola’s former campaign manager, who spoke extensively with the Times but retracted her comments before publication, the campaign worked with Senate Democrats’ campaign arm to recruit the second Dan Sullivan to run. The DOJ’s lawsuit to intervene in Alaska’s election in case the incumbent Republican senator loses also leans heavily on the Peltola campaign’s supposedly nefarious moves to confound voters.
But even if there were attempts to confound voters, that doesn’t mean voters will be confounded. The ballot makes exceedingly clear which Dan Sullivan is which. The incumbent Dan S. Sullivan has the word “Incumbent” next to his name and the label “Registered Republican,” and Daniel J. Sullivan Jr.’s name is left unadorned.
And Edward Foley, a law professor and former Ohio solicitor general, explained in an MS NOW essay why concerns of voters accidentally denying the incumbent senator re-election are “significantly mitigated” by the state’s ranked choice voting system.
That doesn’t mean we should entirely disregard the reported shady tactics and condescension from people working to get Peltola elected. At one point, some Democratic strategists seemed to delight in the idea of confusing the public:
In one exchange of text messages obtained by The Times, Peltola advisers seemed to make fun of voters while watching a focus group, surmising the participants would be susceptible to being tricked into voting for a ballot spoiler.
“Do we have a scheme for you,” wrote a consultant for the Peltola campaign. A pollster on the chat wrote that one voter seemed like the perfect audience “for our ballot strategy plan :)”
Despite Gov. Mike Dunleavy’s call for an investigation, and the DOJ’s lawsuit, the Times report makes clear that “ballot-stacking tactics are common in politics and generally considered legal — and have been employed by both parties in Alaska.” But the department’s lawsuit says it has an “obligation to protect the integrity of its election” and, if Peltola wins, wants to block certification “pending an investigation to determine whether votes cast for Daniel J. Sullivan were meant to be cast for Senator Sullivan,” according to their lawsuit.
The DOJ’s suit quotes an initial claim from Carol Beecher, Alaska’s director of the division of elections, that Daniel J. Sullivan wanted to be on the ballot “for the purpose of confusing or misleading voters and compromising the fairness of the ballot.” But now Beecher is firmly against the DOJ’s suit. State lawyers in a motion to dismiss filed Monday argued that the federal government “lacks authority to intervene in state elections at all, much less in support of a favored candidate.”
If anything, in its own efforts to affect the race’s outcome, the DOJ may have jumped the gun.
Nothing in the Times’ report changes that. There may be consequences for Peltola and her campaign staff at the state level. As election law expert Rick Hasen noted, if anyone lied under oath about cooperation between Democrats and Dan J. Sullivan, then there could be cause for a perjury prosecution, but no allegations on that front had arisen as of Thursday afternoon.
Any such testimony would have come from Dan J. Sullivan’s lawsuit to remain on the ballot earlier this year. The Alaska Supreme Court ruled in his favor, allowing him to remain an option for voters. Again, there’s a lot to find concerning about the Peltola campaign’s shenanigans, but the federal government has no power to force Alaska to alter its election procedures.
If anything, in its own efforts to affect the race’s outcome, the DOJ may have jumped the gun. I imagine there would be a lot more willingness to criticize Peltola outright, and a potentially less mixed bag reaction from Alaskans, without the federal intervention. As it stands, the case will still fall flat, and Alaska’s voters will still have their say in who represents them in the U.S. Senate — even if they have to take a few seconds longer to read their ballot.
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