Election-law expert says no other administration would consider criminal charges in Alaska Senate case; but with Trump's weaponized DOJ, anything can happen

(WOWK 13 News, Facebook)

We are just four days from the 2026 midterm elections, and a New York Times story about a "ballot stacking" scheme designed to boost the chances of Democrat Mary Peltola has roiled Alaska's U.S. Senate race. One of the nation's foremost authorities on election law is following the case and concludes that it shows all of the signs of packing a serious political punch. What about a legal punch, as in a criminal court case that could cast doubt on the midterm results? Rick Hasen, a law professor at UCLA who runs the Election Law Blog and is a frequent contributor at the site, does not see that happening -- partly because the U.S. Constitution places the administration of congressional elections in the hands of states, not the federal government. That should put a crimp in any plans the Trump Department of Justice (DOJ) might have to turn Alaska in favor of Republicans. 

What other thoughts does Hasen have about the Alaska controversy, which essentially boils down to possible voter confusion caused by having two "Dan Sullivans" on the ballot? Under the headline "The legal implications (or not) of The New York Times bombshell story alleging Democrats recruited the second "Dan Sullivan" to run in the Alaska U.S. Senate race," Hasen writes:

Today’s New York Times story, if true, strikes me as a political bombshell: despite public denials of a connection, people associated with Democratic U.S. Senate candidate in Alaska Mary Peltola and Democratic Party officials recruited the second “Dan Sullivan” to run against the incumbent Republican U.S. Senator from Alaska, Dan S. Sullivan. The hope would be to siphon votes away from Sen. Sullivan. (As a political play, I’m skeptical that this would work, given Alaska’s ranked choice voting approach would allow ranking both Dan Sullivans as 1 and 2, thereby not helping Peltola.)

But what, if any, are the legal implications of the story (if true)?

To begin with, I don’t think it has any bearing at all on the current litigation in which the U.S. Department of Justice seeks to delay certification of the race if Dan S. Sullivan narrowly loses on grounds of purported voter confusion. The lawsuit is not going anywhere for any number of reasons, but even assuming DOJ’s theory that it can sue to block certification, it is irrelevant as to why voters might face confusion over the two Dan Sullivans. (This has not stopped DOJ from now supporting DSCC intervention so that it can get discovery over a potential “conspiracy”). [Disclosure: I will soon be filing a motion to file an amicus brief on my own behalf supporting the State of Alaska in this case.]

Second, if there is any evidence that anyone lied under oath about the cooperation between Democrats and Dan J. Sullivan, that could be grounds for a perjury prosecution. So far I’m not aware of any such allegation in the case.

Third, this leaves the question whether this could be prosecuted as some kind of conspiracy against voters. To begin with, it is regular practice for people to support candidates for bad motives: Republicans boosting Greens and Democrats boosting Libertarians. It turns out that Elon Musk alone may have bankrolled left-leaning Cornel West’s quest to get on the 2024 presidential eiection ballot. The effort in Alaska is just an extreme version of that. From The Times’s story: “Ballot-stacking tactics are common in politics and generally considered legal — and have been employed by both parties in Alaska. But this operation, which has not been reported before, reveals the lengths to which Democrats went to seek advantage in a Senate race that could determine control of the chamber.”

That might not stop DOJ from trying to prosecute it. But I think such a claim would fail. As Shelby Wayment and I wrote before these revelations came to light: “In Alaska…President Trump and AG Blanche have said there could be a crime and we know there has been a federal criminal investigation; the closest we could come up with is this Wall Street Journal (WSJ) column alleging Dan J. Sullivan conspired with Democrats to deprive voters of their civil rights in violation of 18 U.S.C. § 241. The DOJ’s complaint does not state a claim of 18 U.S.C. § 241; instead the DOJ relies on a vague statement of purpose from the NVRA (52 U.S.C. § 20501(b)(3)). If DOJ tries to prosecute Dan J., his candidacy is likely protected by the First Amendment. (The case is easily distinguishable from Mackey, that the WSJ authors relied upon, which involved a lie about when, where or how people vote; Dan J. Sullivan, so far as we know, did not lie about his name or anything else).” 

In a post dated August 18, 2026, Hasen noted that the Alaska case raises a wide variety of possible legal issues -- includng free speech,  conspiracy, wire fraud, civil rights, and more. But ultimately, Hasen concludes, the case boils down to potentially prosecuting someone for having dishonest motives in running for office. Is that the kind of act the government can, or should, seek to criminalize? Hasen has serious doubts, and he writes:

Now we cannot be sure what Dan J.’s motivations are (see this NY Times report with lots of reasons but no ironclad evidence to think J. is actually running to help the Democrat). But let’s assume he’s running to help Peltola.

If Dan J. ultimately is charged with violating the Ku Klux Klan Act (18 U.S.C. s 241), which punishes a conspiracy to “injure, oppress, threaten, or intimidate any person in any State. . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States,” I think J. would have a very strong First Amendment defense (and likely for the wire fraud claims too, but I don’t know enough about what the basis for those charges might be). 

There have been cases involving lying to people about the mechanics of elections–when, where or how people vote–most recently and famously in the Douglas Mackey (Ricky Vaughn) case. Mackey was convicted of violating section 241 by tricking voters on Twitter into “voting by text” (not a thing) for Hillary Clinton in the 2016 election. I filed an amicus brief arguing that such a prosecution is consistent with the First Amendment, and my friend and colleague Eugene Volokh filed on the other side, pointing especially to the vagueness of the statute. (We both agree, though, that narrow laws aimed at lying about voting mechanics are likely constitutional). The Second Circuit held there was no conspiracy as required by section 241, reversing Mackey’s conviction, and it did not reach the First Amendment issue. 

But this is not a case about tricking someone about the mechanics of the election not to vote. Nor is it a case of impersonation: J. is really named “Daniel Sullivan.” It is not even a case about J. telling a campaign lie. (Volokh says the First Amendment should prevent the state from criminalizing such lies: “on balance it seems to me that the traditional approach of candidates pointing out their rivals’ lies, often supplemented by the media chiming in, is the least bad of a bad set of options”).

This is a case about someone running for office with impure motives who is lucky enough to have a name that could confuse some voters. The solution to this problem is counterspeech (as in: “Don’t vote for J.! Vote for the real Senator Daniel S. Sullivan”.)

I don’t see how the government could criminalize his running for office while  having impure motives. And if it could do so, then it could be a crime every time that the Republican Party backs a Green Party candidate, or Democrats support a MAGA candidate in a primary in the hopes that the candidate would be weaker against a Democrat in the general election. This stuff happens all the time.

It would be quite dangerous for the state to start criminally prosecuting people for their political beliefs and secret motives. Are we going to put people on trial and probe their political allegiances?

I expect that if J. is indicted, these First Amendment issues would loom quite large. Indeed, I would expect any other administration’s DOJ -- Democrat or Republican -- not to even consider charges in a case like this, given those free-speech issues. But the Trump DOJ has been weaponized against the president’s political opponents, and so we will have to watch what happens.