Judge Rejects Federal Plan to Lose the Alaska Senate Race in Advance

Anchorage, AK — A federal judge on Sunday threw out the Justice Department’s attempt to block the results of Alaska’s Senate race in the event that the Republican incumbent loses it. The election is Tuesday. The results do not exist yet.

U.S. District Judge Sharon Gleason dismissed the suit in Anchorage. The government had asked her to delay certification pending an investigation into voter confusion. The confusion, the filing warned, might occur. On a date in the future. To voters who have not yet voted.

At the center of it are two men named Dan Sullivan. One is the incumbent, Sen. Dan S. Sullivan. The other is Dan J. Sullivan, a retired schoolteacher from Petersburg. The government’s theory was that a ballot carrying both names could be misread. Its proposed remedy was to stop counting the ballots.

President Trump has said he ordered the lawsuit. He has also said the second Sullivan was recruited to confuse voters, a claim the Democratic nominee’s campaign denies. The suit did not ask the court to remove anyone from the ballot. It asked the court to be ready, afterward, to disbelieve the result.

This is a novel instrument. A candidate who files a grievance before the votes are cast has, in effect, pre-ordered the appeal. The brief does not say “the election was stolen.” It says “the election, should it go the wrong way, will have been.” The tense is the only confession in the document.

Gleason found the plan unworkable for a reason the government could not answer. To sort the votes for the wrong Sullivan from the votes for the right one, you would have to know what each voter intended. That means knowing who each voter was. Alaska’s ballots do not carry names. They are mixed together on purpose. The secrecy of the ballot, it turns out, is a feature, and the government had proposed to investigate its way past it.

“The absence of any explanation from the United States as to how its requested relief could redress its alleged injury while simultaneously maintaining the secrecy of the ballot is telling,” Gleason wrote. She was being polite.

She was also being jurisdictional. The time, place, and manner of an election, she noted, are the responsibility of the state, not the executive branch. This is not an obscure doctrine. It is written down in the part of the Constitution that gets read aloud at ceremonies. The Justice Department had read it too, and sued anyway, which is its own kind of confidence.

Alaska uses ranked-choice voting, which the state pointed out offers a tidy answer to the two-Sullivan problem. A voter worried about the names can simply rank them first and second. The confusion the government went to federal court to prevent was already solvable by a voter with a pen. No injunction required.

What the suit actually sought was insurance. If the incumbent wins, the filing is moot and forgotten. If he loses, the paperwork is already on file, pre-dated, waiting to be pointed at. It is the legal equivalent of writing the concession speech and the stolen-election speech in advance and sealing the one you need on Wednesday morning.

The government is expected to appeal, which is consistent. A case built to doubt a result that has not happened is not the sort of case that accepts a result that has. The Ninth Circuit will presumably be asked to delay an election it also cannot see.

For now the machinery proceeds as designed. Alaskans vote Tuesday. The ballots get counted without reference to who cast them, which was the entire objection and the entire point. Sen. Sullivan, for his part, has said he will honor the outcome, a sentence that should not be newsworthy and, this week, is.

A government that goes to court to reject a loss it has not suffered has already told you which outcome it is planning for. The judge did not block the election. She declined to help one side lose it on paper before anyone won it at the polls, and that is the most that a court, at this hour, can do.