This is the follow-up to our 31 October report on DOJ’s suit over the two Sullivans on Alaska’s ranked-choice U.S. Senate ballot. On 1 November, U.S. District Judge Sharon L. Gleason granted all three motions to dismiss: one from the State of Alaska (Dkt. 55), one from Alaskans for Mary and the DSCC (Dkt. 57), and one from voter groups including the League of Women Voters of Alaska and Common Cause (Dkt. 60). The Order Dismissing Action is Dkt. 79. The clerk entered final judgment the same day (Dkt. 80): the amended complaint is “DISMISSED without prejudice”. Later on 1 November, DOJ filed a notice of appeal to the Ninth Circuit (Dkt. 81).

What the judge decided

  • No standing, because of redressability. The court held that the United States failed the redressability requirement of Article III. In other words, it had not shown that any order the court could lawfully issue would fix the injury it alleged. The court therefore lacked jurisdiction and did not rule on whether DOJ’s National Voter Registration Act and Supremacy Clause theories have merit.
  • The secret ballot. DOJ had asked the court to block certification of any result “that may be impacted by voter confusion … pending an investigation to determine whether votes cast for Daniel J. Sullivan were meant to be cast for [Dan S.] Sullivan”, and to have ballots ranking Daniel J. Sullivan segregated. The judge wrote that ballots already cast “have been commingled and cannot now be segregated or the identity of the person who cast each ballot ascertained”, and that DOJ offered “no workable plan” for an investigation that would preserve voter secrecy. Ordering segregation “so that these voters can be further investigated by law enforcement is not a remedy that this Court can or should order as it clearly violate[s] Alaskans’ right to a secret ballot.”
  • DOJ’s own response. The order notes that, against the defendants’ ballot-secrecy arguments, the United States offered “only one sentence”: that the state can take measures “including but not limited to the segregation of ballots” and the court can order them.
  • Preservation is already the law. DOJ argued its only immediate request was preservation and segregation. The court said a preservation order would redress nothing, because Alaska rules already require ballots in federal races to be kept for 22 months after the election (6 AAC 25.230).
  • Purcell. The order also relies on the Supreme Court’s caution against changing election rules on the eve of an election. It says segregating ballots for a later law-enforcement investigation would likely cause voter “confusion and consequent incentive to remain away from the polls.”
  • No second amendment. Leave to amend was refused. DOJ had not asked for it, had already amended once without materially changing the relief sought, and further amendment would be futile because the court “lacks the authority to order that certain ballots cast by Alaskans be segregated so that federal law enforcement officials can conduct an unspecified investigation of the voters who cast them.”
  • Other motions. DOJ’s expedited-discovery and preliminary-injunction filing (Dkt. 66) and its motion to expedite (Dkt. 70) were denied as moot, as was a late motion to intervene by an Alaska voter. The order adds that DOJ’s preliminary-injunction memorandum had no matching motion or proposed order on the docket, as the local rules require. Amicus briefs from Thomas A. Lamb, Richard Hasen and the NAACP were accepted.

The background the court accepted for the ruling

As the order recounts, Sen. Dan S. Sullivan filed for re-election on 16 May. Daniel J. Sullivan filed on 29 May. Division of Elections Director Carol Beecher decertified Daniel J. Sullivan on 15 June, finding his candidacy was filed “to confuse or mislead”. The Alaska Superior Court reversed her on 26 June, and the Alaska Supreme Court summarily affirmed on 29 June. The ballot lists him as “Sullivan, Daniel J. Jr.” with no party, and the senator as “Sullivan, Dan S. (Registered Republican) Incumbent”. In the 18 August top-four primary, Mary Peltola took 49.54%, Dan S. Sullivan 41.40%, Daniel J. Sullivan 2.47% and Gerald Heikes 1.05%.

The order also quotes the U.S. Attorney for Alaska at an 30 October DOJ press conference, where he said federal and state law enforcement “are working to make sure that your vote counts in a way that you meant and intended it to count.” The court said that statement, together with DOJ’s silence on secrecy, meant “potential voters may well have concerns regarding the secrecy of their ballot”.

Who this affects

Alaskans vote on Tuesday 3 November on the ballot as printed. No federal order now requires ballots ranking Daniel J. Sullivan to be set aside, and certification is not blocked. The dismissal is without prejudice, which is required when a court lacks jurisdiction, so it is not a ruling that DOJ’s legal theory is wrong. DOJ’s appeal now goes to the Ninth Circuit. At publish time we had not pulled any appellate docket entry or emergency motion. We will update when one is filed.

Prior coverage: DOJ asks Anchorage federal judge to set aside every ballot ranking the second ‘Dan Sullivan’.