Justice Department Faces Steep Legal Hurdles in Alaska Election Appeal

The U.S. Department of Justice is confronting a challenging legal landscape as it moves to overturn a federal judge's dismissal of its lawsuit regarding the Alaska Senate race. Legal experts have expressed doubt about the government's ability to secure meaningful relief before voting concludes on Tuesday. This legal struggle proceeds in parallel with a separate criminal investigation into the election process.

The appeal was initiated after U.S. District Judge Sharon Gleason, an appointee of former President Obama, dismissed the department's case on Sunday. The lawsuit centered on the presence of two candidates named Dan Sullivan on the ballot. Judge Gleason ruled that federal officials lacked standing because they failed to demonstrate how their proposed remedy could fix potential voter confusion without interfering with ballot secrecy.

With polls set to close on Tuesday, attorneys indicate that even a successful appeal could leave the government in a rush to obtain an injunction or return to the district court for further action. A defeat in the appeal would leave the civil case dismissed, though it would not necessarily impact potential criminal charges related to the alleged recruitment of the second Sullivan candidate.

Jason Torchinsky, an election attorney at Holtzman Vogel, noted that the dismissal was based on the procedural issue of standing. He explained that if the government prevails on appeal, it must either seek injunctive relief from the appeals court, which is a high bar, or return to the district court to pursue relief. Torchinsky described the task as a heavy lift given the limited time remaining before the close of polls.

A reversal of the lower court's decision would not automatically alter Alaska's election results. The department would still need to obtain specific judicial relief, which could involve further proceedings in district court. Cully Stimson, a former federal prosecutor and Pentagon official, agreed that securing immediate relief to pause the contest between Sullivan and Peltola would be difficult.

Stimson suggested that the ruling did not appear partisan, regardless of the judge's appointment history. He noted that seeking injunctive relief before any actual harm has occurred is a significant legal reach, particularly since Alaska falls under the Ninth Circuit Court of Appeals. However, he proposed that the department may have a longer-term strategy to establish a legal record that supports further proceedings after the votes are counted.

Zack Smith, a former Assistant U.S. Attorney for North Florida, added that if the Ninth Circuit does not address the case promptly, the department could seek emergency review from the U.S. Supreme Court. While the specific circumstances in Alaska are unprecedented, the concept of expedited review during an election is not new to the legal system.

Smith pointed to the 2000 Bush v. Gore dispute as a procedural parallel, where federal courts intervened in a state-run election. In that case, the Supreme Court decided in George W. Bush's favor within a week of an emergency request. Experts note that the department is well accustomed to this expedited review process, having navigated similar timelines since the 2000 election.

Alex Charns, an attorney with extensive experience litigating against the department, argued that the clock has run out for the government's goal of segregating ballots based on voter intent. He stated that ballots already cast cannot be segregated and that the appeal is unlikely to succeed because one cannot determine why a voter made a specific choice.

A spokesperson for the Department of Justice's Rapid Response office stated that the court dismissed the case on procedural grounds but did not dispute the argument that Daniel J. Sullivan entered the race as a frivolous candidate to confuse voters. The office asserted that Alaskan voters deserve a fair election. Meanwhile, Stimson cautioned that the outcome of the civil litigation would have little bearing on the ongoing criminal investigation, which could still yield evidence for additional legal action.