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The Department of Justice (DOJ) last week filed a lawsuit that intends to weigh in on the results of the Senate race in Alaska. It seeks to block certification of the election results under certain conditions if Republican Sen. Dan S. Sullivan loses. 

Experts question whether it has the legal basis to do so—and if this intervention is a preview of how the Trump Administration might respond to unfavorable midterm results across the U.S.

The DOJ, in its Oct. 22 filing, expressed concern that there might be “voter confusion” stemming from the fact that two candidates on the ballot are named Dan Sullivan. Republican Sen. Dan S. Sullivan is currently seeking re-election, and one of his challengers is Daniel J. Sullivan Jr. (a Republican whose party affiliation does not appear beside his name on the general-election ballot).

The GOP first raised concerns in May, prompting a proposal to add “incumbent” beside the sitting senator’s name on the ballot. But the party continued to warn that voters could split their votes between the two Sullivans, opening the door for Democrat Mary Peltola.

Read More: The 7 Key Governor Races to Watch in the Midterm Elections

Alaska has traditionally been a state that leans Republican: Trump won the state by 13 points in 2024, and the state has not had a Democratic governor since 2002. 

But the race is closer than analysts first expected. October polls from The New York Times/Siena, Alaska Survey Research, and Data for Progress show Peltola leading Dan S. Sullivan by between 2 and 7 points.

The DOJ lawsuit claims that the “sole purpose” of Daniel J. Sullivan’s candidacy is to benefit Peltola. Therefore, it seeks to block certification if the incumbent loses but would have won with all of Daniel J. Sullivan’s votes. To determine that, it proposes recalculating the ranked-choice count as though those votes had gone to the incumbent instead.

Under Alaska’s ranked-choice system, voters rank candidates by preference. If no candidate initially wins a majority, the lowest-ranking candidates are eliminated in successive rounds and their ballots transfer to the next remaining choice.

In a Truth Social post on Oct. 21, Trump said he was “very concerned” about the race and described the situation as “totally confusing.”

“Even 1, 2, or 3% could make the difference,” he wrote of the potential outcomes.

The DOJ said there would need to be an “investigation” to determine which vote was meant for which Sullivan. The DOJ said an “investigation” would be needed to determine which Sullivan voters intended to support. 

Attorney General Todd Blanche suggested on CNN’s State of the Union on Sunday that voters’ rankings could provide clues: “There are a number of scenarios where it could be obvious that a voter was confused by the way they wrote down candidates.” He did not elaborate on what those scenarios might look like within the parameters of a formal investigation. 

Neither the DOJ nor the candidates’ campaigns responded to TIME’s requests for comment.

On Oct. 23, Peltola’s campaign and the Democratic Senatorial Campaign Committee asked to join the DOJ’s case as defendants, writing: “Alaskans, apparently, must elect Senator Dan S. Sullivan or the President will not let them elect anyone at all.”

On Sunday, Peltola’s campaign and the DSCC asked the court for permission to seek dismissal and requested an expedited ruling this week. They proposed requiring a DOJ response by Tuesday afternoon, arguing that the pending lawsuit could undermine confidence in the election.

Voting rights experts are calling it a “garbage lawsuit” and “an unprecedented intervention by the federal government.” 

Lisa Murkowski, the state’s other Republican Senator who is not up for re-election, endorsed the incumbent Sullivan in January. Last week, however, she condemned the DOJ’s efforts to intervene.

“Alaskans don’t need any help voting for their preferred candidates,” she wrote Oct. 23 in a post on X. “The Department of Justice should never have filed this lawsuit.”

Trump responded to her comments with a scathing post on Truth Social on Oct. 24, calling Murkowski “Republicans’ Worst Senator, by far” and “a DISGRACE to Alaska and our country.”

He also criticized the state’s ranked-choice voting system, writing: “Ranked Choice Voting Ballot is a TOTAL DEMOCRAT SCAM meant to confuse the Voter.”

Asked to comment on the DOJ filing the next day, Trump told reporters: "I'm the one that said do it." 

Blanche declined to confirm whether the Justice Department acted at the behest of the President during his appearance on CNN on Sunday. 

He denied that the Trump Administration was laying the groundwork to overturn election results, arguing that the lawsuit would allow Alaska officials and courts to address any unlawful voter confusion after the election.

“It is an obligation of the states to avoid confusion, among other things, confusion in the minds of voters in the election process,” he said. “So the question is whether Alaska, by allowing this to happen, is violating the law and the federal law and the constitution by allowing confusion in the ballot.”  

Why experts question the DOJ’s Alaska election lawsuit

Prior to the DOJ lawsuit, Republicans sought to remove Daniel J. Sullivan from the ballot in June. 

When he decided to run, Republicans sent complaints to Carol Beecher, the director of Alaska’s Division of Elections. She wrote a letter to Sullivan in June saying that election officials had determined that he would be removed, claiming his candidacy was not filed “in good faith for the purpose of genuinely pursuing” leadership. 

Sullivan challenged the decision and sued the state. Judge Thomas Matthews of Alaska’s Third District Superior Court ruled in June that he could remain on the ballot beside the other candidates. He wrote in a 32-page decision that elections officials were introducing a “new, previously unstated ‘good faith’ criteria” and said that this requirement is not present in state law or the Constitution. 

That decision was upheld by the Alaska Supreme Court on June 29.

It was later determined that a “mitigating remedy” would be to present each candidate’s name with the middle initial and to add “incumbent” to the sitting senator’s name. 

The Alaska Supreme Court ruling did not end scrutiny of Daniel J. Sullivan’s candidacy. In August, Reuters reported that the DOJ had issued grand jury subpoenas while investigating whether he entered the race to confuse voters.

The DOJ then filed its new lawsuit amid October polling that showed Peltola ahead.

The department justifies the move using language in the National Voter Registration Act (NVRA) that says its purpose is to “protect the integrity of the electoral process.” 

Experts, however, dispute whether that language authorizes the intervention.

Derek Muller, a professor of election law at the University of Notre Dame, wrote in a blog post after the filing that the proposed investigation is “essentially impossible.” But succeeding is not the point, he continues. 

“The legal claim is so absurdly thin, there’s essentially no likelihood of success,” he wrote, adding that the real purpose of litigation is to signal to the press and public that the Trump Administration is “ready” if the result goes against the GOP’s interests in Alaska.

The Center for Election Innovation and Research (CEIR), a nonpartisan nonprofit working to inform voters, called the move “unprecedented” in a statement that also said the lawsuit “raises serious concerns about political interference.”

“I cannot recall an administration ever attempting to stop the certification of an election—and certainly not 11 days before polls close,” CEIR Executive Director David Becker said in the statement. 

“Furthermore, this issue has already been fully litigated by Alaska’s courts,” he continued. “Alaska election officials are following state law, as the Constitution requires, and the courts will uphold that.”

Richard Hasen, a professor of law at UCLA, called the move a “desperate and unprofessional assault” on the American elections system.

Common Cause, a nonpartisan organization represented by the ACLU, filed a motion on Oct. 23 seeking to join the case to oppose the DOJ’s effort. Its president and CEO, Virginia Kase Solomon, said in a statement Oct. 24: “Politicians don’t dictate election outcomes; the people do.”

Nate Adams, a spokesperson for Dan S. Sullivan’s campaign, expressed confidence in his candidate’s re-election but told local media outlet KFSK last week: “We’ll let the DOJ complaint run its course.”

How has the federal government used the National Voter Registration Act?

The National Voter Registration Act was enacted in 1993 to address barriers to voter registration that depressed participation and disproportionately affected racial minorities. It was predicated upon the fundamental right of every eligible citizen to vote, as well as the duty of local and federal governments to protect that participation in the democratic process.

In the past 30-plus years, it has been used to sue states that fail to maintain their voter rolls or enforce registration requirements.

The Biden Administration also reckoned with Alaska in 2022, finding that the state wasn’t consistently letting residents register to vote—or update their voter registration—as part of their routine paperwork at the Department of Motor Vehicles. An agreement reached that June required Alaska to bring those procedures into compliance with the NVRA.

In 2012, the Obama Administration sued the state of Florida over a program intended to identify and remove suspected noncitizens from its voter-registration rolls too close to the elections. The parties agreed to dismiss the case in January 2013. 

The George W. Bush Administration also sued several states under the NVRA to enforce requirements for offering voter registration and maintaining accurate voter rolls. 

The DOJ’s Alaska lawsuit goes further than those earlier cases. Experts say the NVRA does not expressly authorize blocking election certification over suspected voter confusion.

If courts accept the DOJ’s argument, the consequences could extend beyond Alaska, warns Walter Olson, a senior fellow at the libertarian Cato Institute. It could give the federal government a new basis to challenge how states design ballots, determine which candidates qualify, and certify election results—all in the name of protecting election integrity.

“[The lawsuit] attempts to stretch a federal statute, the National Voter Registration Act (NVRA), beyond recognition by snipping language from the law’s preamble and treating it as if it creates vast and open-ended new duties that the federal government can enforce on states,” Olson said in a statement Oct. 23. “If accepted, it would suddenly federalize many issues of local election administration.”