The Volokh Conspiracy
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Federal Court Rejects Trump Lawsuit Seeking to Block Certification of Alaska Senate Election Results
The court found the administration lacked standing to bring the suit. But there are also major substantive problems with Trump's position.
Today, in United States v. Alaska, federal district Judge Sharon Gleason ruled against the Trump administration's lawsuit seeking to block certification of Alaska Senate election results on the grounds that doing so might be necessary to prevent "voter confusion" caused by the presence of two candidates with very similar names on the ballot. As I have explained previously, Dan J. Sullivan can potentially be confused with Dan S. Sullivan (the incumbent GOP senator). Evidence gathered by the New York Times suggests Democrats may have deliberately recruited Dan J. to run, in hopes of siphoning off votes from Dan S. on this topic.
Today's ruling dismisses the Trump lawsuit on the grounds that the United States lacked standing to bring the suit. Most notably, it failed the standing requirement of "redressability." The remedy requested by the administration - blocking certification until the federal government could further "investigate" the issue, would not actually redress the harm of voter confusion, and certainly could not do so while maintaining legally required secrecy of the ballots. In addition, Judge Gleason emphasizes that the federal government's proposed remedy would likely intrude on the powers of the state government, create more voter "confusion" than it forestalls:
The Supreme Court "has repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on the eve of an election…" "Such late-breaking, court-ordered rule changes can 'result in voter confusion and consequent incentive to remain away from the polls,' and thus undermine the '[c]onfidence in the integrity of our electoral processes . . . essential to the functioning of our participatory democracy.'"
The United States maintains that it is "not seeking to alter the time, place, or manner of Alaska's election" [which the Constitution generally leaves under state control]. And yet it seeks a court order preventing the State from certifying the election if certain circumstances occur; a court order requiring the State to segregate and preserve certain ballots; and a court order permitting the United States to conduct an investigation into the intent of those voters who cast ballots for Daniel J. Sullivan. These requests certainly involve the time, place, and manner of Alaska's election, which are the responsibilities of the State, not the executive branch of the federal government. Clearly, if this Court were to order that certain ballots will be segregated and subject to a future and as yet unspecified investigation by law enforcement, it would likely result in voter "confusion and consequent incentive to remain away from the polls."Such late-breaking changes to the election rules are strongly disfavored.
In addition to these procedural problems with the Trump lawsuit, it also deserves to be rejected on the substantive merits. I covered some of the reasons why here and here. See also the excellent amicus brief filed by prominent election law scholar Rick Hasen, which goes into these issues in greater detail. Quite simply, there is no federal law giving the administration the power to block certification of election results based on "voter confusion."
As explained in one of my earlier posts about this case, Democrats deserve blame for seeking to deceive voters in this way, even though it is highly unlikely it would cause enough confusion to change the outcome of the election (various aspects of the Alaska ballot and election system reduce the already low odds of that happening). But for reasons summarized in the same post, this kind of thing is far from the worst example of exploitation of voter ignorance. Lies and deceptions about public policy issues are far more significant.
Today's decision may be appealed. But I think it highly unlikely that the appellate court (or the US Supreme Court) will reverse it.
