The Justice Department is facing a significant legal challenge in its effort to overturn a federal judge's dismissal of its lawsuit concerning the Alaska Senate election. Legal experts suggest the DOJ faces an uphill battle to achieve meaningful relief before voting concludes on Tuesday, while a separate criminal investigation into the matter proceeds.
U.S. District Judge Sharon Gleason, appointed by President Obama, dismissed the DOJ's lawsuit on Sunday. The suit contested the presence of two candidates named Dan Sullivan on Alaska's Senate ballot. Judge Gleason ruled that federal officials lacked standing, as they failed to demonstrate how their proposed remedy could address potential voter confusion without compromising ballot secrecy. Election attorney Jason Torchinsky noted that the judge's dismissal was based on a procedural issue of standing. "So if the government were to prevail, it would either have to seek injunctive relief from the appeals court in the first instance; a very high bar; or go back down to the district court to seek relief," Torchinsky told Fox News Digital. He added, "Given the time available between now and close of polls [Tuesday], this is a heavy lift for the government."
A successful appeal would not automatically alter election results. The DOJ would still need to obtain specific judicial relief, potentially necessitating further proceedings in district court. Cully Stimson, a former federal prosecutor, echoed the sentiment that the DOJ will find it difficult to secure immediate relief in its attempt to pause the Sullivan-Peltola contest.
Stimson suggested that the DOJ might have a longer-term objective beyond an immediate injunction, potentially aiming to establish a legal record that could support post-election proceedings. "They may be filing these suits to establish a record and force Alaska and others supporting the status quo to defend what's happening, knowing that there's some level of confusion and they have the legal wheels churning," he said. "So after the vote is [over], they've started the legal wheels rolling."
Former Assistant U.S. Attorney Zack Smith indicated that if the Ninth Circuit does not expedite the case, the DOJ could seek emergency review from the U.S. Supreme Court. He noted that the DOJ is familiar with the expedited review process, citing the Bush v. Gore case in 2000 as a procedural parallel where federal courts were asked to intervene in a state-run election. "Florida was conducting the election in the manner under Florida law, under this time, place and manners set out by Florida law even though it was a federal election," Stimson recalled, referencing the "hanging chads" controversy and the Supreme Court's eventual intervention.
Attorney Alex Charns expressed skepticism, stating that the window for the DOJ's desired relief has closed. "The relief they seek isn't possible - ballots already cast can't be segregated. Also, one cannot tell why any voter voted in a particular way. The appeal is unlikely to be successful," Charns told Fox News Digital.
The DOJ's "Rapid Response" office issued a statement asserting that the court "dismissed the case on procedural grounds but did not dispute the argument of the United States that Daniel J. Sullivan (a/k/a Decoy Dan) entered the race as a frivolous candidate to confuse voters." The statement continued, "Alaskan voters deserve a fair election, not to be misled in an attempt to rig outcomes," announcing their appeal.
Stimson cautioned that the outcome of the civil litigation would likely have minimal impact on the separate criminal investigation. "As long as that criminal investigation is going on, you're not breathing easy," he said, adding that evidence uncovered by investigators could potentially form the basis for a new civil lawsuit even if the current appeal fails.