Alaska certification suit targets Senate race that could decide chamber control
The Trump administration’s final-days election litigation — a Justice Department suit seeking to block certification in Alaska’s contested Senate race and ballot-sequestration demands in California and Washington — has drawn warnings of post-election delay and chaos, in what election lawyers describe as an unprecedented federal interference campaign. Election lawyers and scholars said they expect the federal government’s legal efforts to fail in court, but the push has deepened concerns that the administration will try to slow the certification of results after election day and create chaos when the new Congress is seated next year. The effort began last year with a push to collect detailed voter roll information from nearly every state and has continued into the election’s final days.
Election experts said they are confident the administration’s efforts will not work, and some have complained of “fearmongering” about far-fetched scenarios unlikely to go anywhere in court. But after the attack on the Capitol on January 6, 2021, voting lawyers and democracy groups are not dismissing the possibility of anything. The potential for interference is related to how close the contest winds up being, said Ned Foley, a professor at the Ohio State University and an expert on disputed elections. “The more it looks like a blowout or a ‘blue tsunami’, the harder it’s going to be for any attempt to make mischief to get any traction,” Foley said. “I put the probability of these impactful nightmare scenarios materializing at under 50%, so I’m not expecting them to make a difference,” he added, though he said there are “risks of weird things happening, and you need to pay attention to them even if the risk is rather low”.
The US constitution gives the states, not the federal government, authority to run elections, and gives the president no power over voting. “The type of conduct we have seen from the administration right now is unlike anything we have ever seen as far as federal attempts to interfere with the elections,” said Danielle Lang, a voting rights attorney at the Campaign Legal Center, a watchdog group. Still, she said, the conduct is “amounting to relatively little because the federal government is just not in charge of the levers of election administration and it can’t force itself to be involved in those levers of election administration”.
Some of Trump’s allies on the right have encouraged him to invoke emergency powers to exert influence over elections, including potentially seizing voting equipment and sending troops to the polls, and Trump has refused to rule out such ideas. Election lawyers said such a move would be illegal — the president holds no power, emergency or otherwise, over elections — and that courts would likely quickly step in to stop it. They cautioned, however, that even swift judicial intervention could still cause chaos, confusion and delay in a post-election period already marked by uncertainty about the results.
The administration’s most aggressive judicial effort has come in Alaska, where the Justice Department sued the state on 23 October and asked a federal judge to step in before election day and block certification if the Republican candidate loses. Alaska’s Senate race between Republican Dan S Sullivan and Democrat Mary Peltola is hotly contested, and the outcome could determine which party controls the chamber. In a complicating twist, a different man, Dan J Sullivan, is also on the ballot; the Alaska supreme court allowed him to stay earlier this year after the state’s division of elections disqualified him. The Justice Department asked the court to block certification “pending an investigation to determine whether votes cast for Daniel J. Sullivan were meant to be cast for Senator Sullivan” — though it is unclear how such an investigation could take place, since US voters cast their ballots secretly. Trump said he ordered the Justice Department to file the lawsuit.
Days later, the New York Times reported that operatives aligned with Peltola were behind the effort to get Dan J Sullivan on the ballot as part of an effort to siphon votes away from the Republican candidate. Democrats had denied being behind the effort. Trump responded on Truth Social, calling the effort “A FRAUD ON THE AMERICAN PUBLIC”. “Mary Peltola should suffer the Legal and Political consequences for what she has done, A FRAUD ON THE AMERICAN PUBLIC, and Dan Sullivan should be allowed to run without either Mary Peltola or FAKE Dan Sullivan on the Ballot,” he wrote.
The department’s legal argument rests on broad language in the preamble to the 1993 National Voter Registration Act, which lists “protect the integrity of the electoral process” among the law’s purposes — language election experts have said cannot support a legal case. Richard Pildes, an election law scholar at New York University, wrote in a blog post that the Justice Department knows it will lose the suit but that the litigation “will give ammunition to anyone in the certification process, particularly the Lt. Gov.”, who might seek to delay or deny certification to Peltola if she wins. In Alaska, the governor and lieutenant governor sign the certificate sent to the US Senate for the winning candidate, and Pildes suggested the Alaska litigation may be aimed at a long-shot challenge in the Senate itself.
A parallel element of the administration’s push is an effort to establish the impression that large numbers of noncitizens are on the voter rolls and voting — and perhaps to use that argument to mount post-election legal challenges. Studies have shown that noncitizen voting is exceedingly rare and that, when it occurs, it is typically because of confusion. The push began last year, when the Justice Department filed lawsuits across the country seeking states’ voter rolls; more than two dozen federal judges, including some appointed by Trump, rejected the requests as unlawful. Unable to obtain the lists directly, the Department of Homeland Security began running public voter roll information against its own records to hunt for noncitizens, and it has not been transparent about its methodology — a gap many experts have viewed with skepticism.
On 13 October, the Justice Department delivered a USB drive — its password written on a Post-it note — to election officials in Los Angeles county, purporting to contain the names of 20,000 noncitizens on the voter rolls, in a state with more than 23 million registered voters. Officials were given 48 hours to review the names and sequester ballots cast by anyone whose citizenship had not been confirmed. California refused, citing concerns about cybersecurity and the administration’s methodology, and the Justice Department sued on 15 October seeking a court order to compel the sequestration. As it pressed the claims, the department also announced the arrest of 28 noncitizens who allegedly had voted at one point in the state. US district judge David O Carter ruled against the Justice Department on Wednesday; the government is appealing.
Local officials who sampled 200 names from the California list found many had already been canceled, and said a “high percentage” of those flagged appeared to have been born in the United States. On 26 October, the Justice Department made a similar demand in Washington state, asking election officials to investigate the citizenship of 400 voters and sequester ballots for those whose citizenship it could not confirm. Washington’s Democratic secretary of state, Steve Hobbs, responded on Wednesday that the state believed the list the government provided was inaccurate. The Justice Department has also threatened to prosecute election officials who process ballots from noncitizens.
While the pre-election sequestration demands are unlikely to succeed, election lawyers said they could offer a pretext for challenging the results afterward. “There will be an argument – I can almost guarantee it – that a bunch of ballots in California should be thrown out because they didn’t segregate them,” said Ben Berwick, an election lawyer at Protect Democracy, a nonprofit that works on democracy issues. He said such a challenge would be “laughed out of court” if brought after the election. “That doesn’t mean we shouldn’t be worried or we don’t need to prepare for it,” he added. Justin Levitt, a former Justice Department and White House official who worked on voting rights and now teaches at Loyola law school in Los Angeles, said the government’s cases are so weak they would have little chance of succeeding before or after election day, and that the administration’s suits are best understood as press releases masquerading as legal complaints. “There’s no part of the administration’s file that is designed to operate in a fashion where a court will make any meaningful ruling,” Levitt said. The law sometimes allows a claim filed too early to become viable later, he said — “But time does not transmogrify crap into gold.”
After the 2020 election, Trump and his allies pressured little-known officials at the local and state level to try to halt the certification of election winners. None of those efforts worked, but election deniers have since gained a foothold on local election boards throughout the country — positions from which they could try to slow the certification process. Election lawyers said they are well prepared for that possibility and confident that judges would quickly order officials to certify valid winners, as courts have done in the past. “Ultimately, you cannot pull a contested election out of thin air, and there are processes here and you can’t just manufacture contests where they aren’t real,” Lang said. “I don’t imagine it looking all that different than it has in past election cycles where we’ve seen some issues with certification that ultimately come to a resolution. We’ve had counties that don’t want to certify; we’ve dealt with that before.”
Efforts to delay or halt certification could ultimately aim at 3 January 2027, the date the new Congress convenes, amid concern that the administration could use its legal and rhetorical challenges as a basis to try to block new members from being seated. The constitution says “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members”, giving both the House and Senate leeway to handle disputed elections. Under federal law, a state’s governor and secretary of state sign the certificate documenting a senator-elect’s win and send it to the Senate. In past disputes, the candidate holding the certificate has been seated provisionally while the Senate rules committee investigates; where a close race produced no certificate, no senator was seated until the dispute was resolved at the state level. After the 2008 elections, a Minnesota Senate seat remained vacant for months while Norm Coleman and Al Franken battled over a close recount; Franken, the Democrat, was eventually certified the winner.
Foley noted that past disputes, such as Coleman versus Franken in Minnesota in 2008, never determined which party held the Senate majority. If partisan control of the Senate hinged on such a fight, he said, “it will be a politically consequential and fraught moment as the dispute remains unsettled”, and much would depend on how irresponsible the rhetoric around it is. Trump himself has suggested Republicans refuse to seat Peltola if she wins. “You’re going to have to see what happens. It’s hard to believe that she could even be allowed to run. Frankly, I don’t know how you could allow somebody like that to run. It’s so unfair when you look at that,” Trump said on Thursday.
In the House, the mechanics differ. Unlike the Senate, the House is not a continuing body and ceases to exist at noon on 3 January, meaning any challenge to a member-elect would be heard by the new chamber — one where Democrats are expected to hold a majority. One longshot scenario has drawn speculation: that Speaker Mike Johnson, acting under pressure from Trump, could fire the clerk of the House — the single bureaucratic official responsible for assembling the roll of new members — and replace him with a loyalist willing to exclude some Democratic members-elect, allowing Republicans to theoretically move to a speaker vote and try to maintain their majority without seated Democrats. Such a strategy would require the support of other House Republicans, and Democrats would assuredly go to federal court to stop it. Derek T Muller, a law professor at the University of Notre Dame, has described the speculation about replacing the clerk as “sophisticated disaster porn”; Johnson has also pledged to seat Democrats who win. “It strikes me as quite unlikely, to me, at least, that this group of Republicans–the one that takes days to choose a speaker and that regularly cannot maintain order in its ranks–is going to have the cohesion and coordination to pull off this kind of activity, which, to emphasize, can be thwarted by other means, either politically or judicially,” Muller wrote earlier this year.
Brian C Kalt, a professor at Michigan State University who has written about contested House elections, said it is “very hard after January 6th to just write off concerns like this”. “It’s reasonable for people to study the issue, think about the issue, worry about the issue. But I don’t think that it’s some imminent threat,” he said, adding: “If there are going to be any shenanigans, there will be initial steps, signs that will be available. This isn’t just something they can spring.”
The administration has also declined to rule out immigration agents being at the polls — a move that would violate federal law. Speaking in September, homeland security secretary Markwayne Mullin refused to categorically rule it out. “The only reason why we would be at polling places is if there is a threat to that polling place or we’re serving a warrant on someone that we have been actively tracking down,” Mullin said. “ICE’s job is immigration, customs enforcement. That’s their job … if we’re serving a warrant we will be where we need to be,” he added. DHS agents also canvassed houses earlier this year, inquiring about people’s citizenship and whether they had voted; a federal court blocked the government from continuing the practice in October. Federal law prohibits armed troops from being at the polls.
Harmeet Dhillon, the assistant attorney general for the Justice Department’s civil rights division, told 60 Minutes recently that “there is no plan to do that”, and the department — which plans to conduct a significant poll-monitoring operation on election day — has said it will not use ICE or FBI agents as poll monitors. Election officials are nonetheless planning for what to do if immigration officers show up at the polls, several lawsuits seek to block such deployments, and Democrats are planning to send their own monitors to ensure voters are not intimidated or interfered with.
One of the administration’s most aggressive election interventions came in January, when FBI agents descended on an election warehouse in Fulton county, Georgia, and seized all ballots from the 2020 presidential election. Trump lost Georgia that year by 11,779 votes, a result confirmed by both recounts and audits, and the conspiracy theories he and his allies have pushed since 2020 to argue otherwise have all been debunked. A federal magistrate judge nonetheless signed off on the warrant for the seizure based on those same theories; as is customary, the judge did not give a reason for finding probable cause. There is now concern that the administration could try a similar approach elsewhere and persuade sympathetic judges to approve warrants to seize ballots — an effort, Berwick said, that could be aimed at making it harder to certify results at the local and state level. “There’s a big leap between what happened in Fulton county, which was a magistrate being willing to sign a warrant for materials that were over five years old, and a magistrate being willing to sign a warrant for live ballot materials,” Lang said. “Everybody is preparing for every worst-case scenario, but I am very hopeful that we are unlikely to see a warrant signed for live materials.”