DOJ launches criminal probe into alleged scheme by Alaska Dems to confuse voters

The Department of Justice has escalated its investigation into whether Democratic operatives in Alaska recruited a candidate with a similar name to incumbent Senate Republican Dan S. Sullivan in order to confuse voters. Earlier this week, a report in the New York Times citing 12 sources alleged a coordinated campaign (involving both state and national-level Democratic party officials) to seek out Alaskans named Dan Sullivan to enter the Senate race and potentially draw votes away from Sen. Dan S. Sullivan. They did eventually recruit a school teacher named Dan J. Sullivan, who now appears on the ballot with no party affiliation.

Recruiting similarly-named candidates to confuse voters is one form of a political practice known as ballot stacking. Ballot stacking more broadly refers to instances where one candidate recruits another candidate to run as a “spoiler” to siphon votes from their chief opponent. Both Democrats and Republicans have engaged in ballot stacking efforts over the years. While the practice is frowned upon, it is not illegal in most instances.

Alaska’s Democratic Senate candidate Mary Peltola (who was once targeted by a GOP ballot stacking effort herself) has denied any knowledge of the plan to recruit Dan Sullivans to enter the race. Peltola has dismissed the Times report which relies heavily on her ex-campaign manager Elisa Rios as a source. Rios was fired from Peltola’s campaign in August and has plans to file a wrongful termination suit.

The Times story states that before they published their story, Rios attempted to retract her statements and asked to not be included as a source at all. The Times declined to remove Rios’ statements or halt publication of the story since they were able to corroborate her accusations with several other sources.

In search of a crime

What is more unusual than an alleged instance of ballot stacking is the federal government’s response to it. On Friday, Alaska U.S. Attorney Michael Heyman called a press conference and announced that the Department of Justice was opening a criminal probe into the matter. The DOJ has also asked that any ballots casting a vote for Dan J. Sullivan to be segregated in order to allow for a probe into voter confusion, though it’s unclear how isolating this ballots would aid in that probe.

In general, the federal government has little power to police how elections are run. Federal law enforcement can only intervene when federal laws related to elections may have been broken, such as laws around campaign finance or civil rights. The Constitution empowers states to govern how they run their elections. Only one state (Washington) has a law prohibiting two similarly-named candidates from running in the same race. Alaska’s Supreme Court already ruled in June to allow Dan J. Sullivan to appear on the ballot.

When asked by reporters what federal law the DOJ alleged had been broken, Heyman declined to say.

It is also unusual is the fact that the DOJ took any public action in a politically-sensitive case immediately before an election. Traditionally, the DOJ has refrained from doing so within 60 days before an election in order to not influence the outcome. Trump’s Department of Justice is also currently breaking with this tradition elsewhere. This week, they sought to block California from counting 20,000 ballots which the DOJ alleges were cast by “non-citizen” voters. Federal courts have already rejected the DOJ’s demands, and also ordered the Trump administraion to stop threatening California election workers with prosecution.