Federal judge dismisses DOJ's bid to hold up Alaska's Senate certification

A federal judge on Sunday dismissed the Justice Department's lawsuit seeking to hold up certification of Alaska's U.S. Senate race if Sen. Dan Sullivan loses, two days before Tuesday's election. The department filed a notice of appeal the same day.

U.S. District Judge Sharon Gleason ruled that the department hadn't shown any order she could give that would fix the harm it alleged without exposing how Alaskans voted.

"Simply, the Court cannot grant the United States the relief it seeks," she wrote in a 20-page order.

The department sued Oct. 22. It asked the court to block certification if the senator loses but would have won had votes for Daniel J. Sullivan, a retired Petersburg teacher with the same name, gone to him instead. Certification would wait on an investigation into whether those voters meant to pick the incumbent.

The department argued that Daniel J. Sullivan's candidacy "threatens to mislead" voters who mean to back the senator, and that certifying a result shaped by that confusion would violate federal law. President Donald Trump has said he directed the suit.

On Friday, the department also asked the court to have Alaska keep ballots ranking Daniel J. Sullivan separate from the rest, if they could affect the outcome.

Gleason found no way to do either. Ballots already cast have been mixed together and can't be traced to the people who cast them, she wrote. The department offered "no workable plan" for separating Election Day ballots and investigating them "in a manner that would preserve voter secrecy."

Pulling out those ballots so the voters could be 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," she wrote.

Preserving the ballots wouldn't help either, she added. State law already requires ballots in federal races to be kept for 22 months.

Gleason also pointed to the Supreme Court's guidance against federal courts changing election rules on the eve of a vote. Telling voters that some ballots would be set aside for a future investigation would likely cause "confusion and consequent incentive to remain away from the polls," she wrote.

The dismissal is without prejudice, the form required when a court finds it lacks jurisdiction. But Gleason refused to let the department rewrite its complaint again, finding another try would be futile. She denied its pending requests as moot, including its bid for fast-tracked sworn answers and depositions from Mary Peltola's campaign and the Democratic Senatorial Campaign Committee, and closed the case.

The ruling didn't address whether anyone recruited Daniel J. Sullivan to run. The department made that allegation when it rewrote its lawsuit last week, citing a New York Times report. Peltola's campaign has said it "did not recruit any candidates into the race."

A separate criminal investigation continues. U.S. Attorney Michael Heyman confirmed it Friday but wouldn't say who is under investigation or which laws are at issue. No charges have been announced.

Four candidates are on Tuesday's Senate ballot: Sullivan, Peltola, Daniel J. Sullivan and Republican Gerald Heikes.