Federal judge tosses Trump's Alaska lawsuit as an attempt to unlawfully interfere with a midterm election, while possibly taking another step toward authoritarian rule

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The Trump administration's attempt to interfere in Alaska's U.S. Senate election was not just designed to increase the chances that a Republican would win, thereby furthering White House hopes that it could continue dealing with a Congress where the GOP still controlled at least one chamber. It also was intended to move the United States closer to authoritarian rule. That is the conclusion of Adam Klasfeld who writes at All Rise News under the headline "Rising this week: the sacred, secret ballot":

Pro-democracy electorates have rejected authoritarian rulers this year in Hungary, Serbia, and Brazil.

Israel appears to be on the cusp of ending Benjamin Netanyahu’s more than 18-year tenure as prime minister, which he has used to consolidate power, weaken the country’s judiciary, and attempt to outrun growing domestic and international criminal liability. Opposition Jewish and Arab parties signaled a willingness to form a coalition, which — if finalized — would mark another blow to the global forces of illiberalism.

On Tuesday, it’s U.S. voters’ turn.

Will Americans follow suit and reject Trump's authoritarian overtures? If they don't, many observers (including yours truly) fear that our democracy might swirl down the drain, never to be seen again -- at least as we have come to know it. Klasfeld writes:

Critical to that effort will be the cornerstone of any free society: the sacred, secret ballot. No government with democratic legitimacy would ever propose asking a court to let agents of the state interrogate citizens about how they voted, but that is exactly what the Trump regime has asked a judge to allow it to do in Alaska.

On Sunday, a federal judge emphatically rejected that effort because the relief that it requested would violate a sacred right.

The Trump Justice Department asked U.S. District Judge Sharon L. Gleason to block any Alaska Senate election outcome that ends in the defeat of the Republican incumbent “pending an investigation to determine whether votes cast for Daniel J. Sullivan were meant to be cast for Senator Sullivan.”

Upon what did Judge Gleason base her ruling? Klasfeld addresses the legal particulars, and it's not a stretch to say she might have saved the rule of law and American democracy -- at least for now. Who knows what schemes the White House might be planning in the event Democrats wind up controlling the Senate? Klasfeld writes: 

Judge Gleason found that “requiring the segregation of ballots cast by voters for Daniel J. Sullivan so that these voters can be further investigated by law enforcement is not a remedy that this Court can or should order as it clearly violates Alaskans’ right to a secret ballot.”

To establish standing, a party must request relief that a judge has the power to grant: a concept known as “redressability,” but what Trump Justice Department lawyers asked for was anathema to a free society.

“More fundamentally, the United States provides no workable plan as to how it proposes to segregate ballots cast for Daniel J. Sullivan on Election Day and then conduct a court-ordered unspecified ‘investigation’ of those ballots in a manner that would preserve voter secrecy,” the ruling states. 

Why has the secret ballot come to be seen as "sacred" by those who value and defend election integrity? A case styled McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) provides insight. Consider these words from the opinion . . .

The term "liberty" in the Fourteenth Amendment to the Constitution makes the First Amendment applicable to the States. The Fourteenth Amendment reads, in relevant part: "No State shall . . . deprive any person of life, liberty, or property, without due process of law . . . ." U. S. Const., Amdt. 14, §1. Referring to that Clause in his separate opinion in Whitney v. California, 274 U.S. 357 (1927), Justice Brandeis stated that "all fundamental rights comprised within the term liberty are protected by the Federal Constitution from invasion by the States. The right of free speech, the right to teach and the right of assembly are, of course, fundamental rights." Id., at 373 (Brandeis, J., concurring). Although the text of the First Amendment provides only that "Congress shall make no law . . . abridging the freedom of speech . . . ," Justice Brandeis' view has been embedded in our law ever since. See First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 779-780 (1978); see also Stevens, The Bill of Rights: A Century of Progress, 59 U. Chi. L. Rev. 13, 20, 25-26 (1992).

In short, the right to a secret ballot is derived from the fundamental "liberty" rights associated with the First and Fourteenth Amendments -- and it is perhaps most closely related to freedom of speech. The ACLU, a plaintiff in the Alaska case, seemed to be thinking along those lines in its brief, as Klasfeld reports:

“Imagine if the federal executive could pluck a few words like ‘election integrity’ from some statutory preamble and, on that basis alone, bend the machinery of state elections to his will, preemptively blocking certification of a U.S. Senate election to protect his preferred candidate from defeat and then subjecting voters to a law-enforcement-led inquest about who they ‘really’ supported,” ACLU attorney Ari J. Savitzky wrote in a blistering filing. “Imagine that world and ask whether it is what the framers wanted or precisely what they most feared.”

On Oct. 30, Alaska’s top federal prosecutor Michael Heyman signaled at a press conference that he was willing to do just that.

“Federal and state law enforcement, including both the Alaska State Troopers on my right and the FBI on my left, are working to make sure that your vote counts in a way that you meant and intended it to count,” U.S. Attorney Heyman declared at a press conference.

The Trump Justice Department liked that plan so much that it publicized his comments online.  

Unfortunately for the White House, Heyman's view did not carry the day. It did, however, capture the attention of the ACLU and Judge Gleason, as Klasfeld notes:

Citing these remarks, the ACLU’s motion states: “Chillingly, the United States also does not deny that the relief it seeks here would eviscerate voters’ constitutional right to a secret ballot.”

Judge Gleason agreed, quoting Heyman’s remarks at the press conference and making ballot secrecy a central part of her ruling. She said that, because of this defect, any attempt to revise the complaint would be “futile.”

The New York Times has uncovered powerful evidence that top aides for Democratic candidate Mary Peltola and lawyers for the DSCC engaged in a ballot-stacking scheme apparently designed to sow confusion among voters regarding two Republican candidates named Dan Sullivan. While calling the move "wrong and strategically boneheaded," Klasfeld also stated, "It’s a legal and common ploy in U.S. politics, being exploited by Trump toward authoritarian ends." Klasfeld provides additional reasons the Trump argument fails as a matter of law, while pointing out hypocrisy emanating from the White House and the GOP:

As a legal matter, the state of Alaska points out that the revelations “add nothing.” That’s because the Supreme Court of Alaska decided that it doesn’t matter whether Dan J. Sullivan was a “good faith” candidate or a spoiler dreamed up in campaign war rooms in Anchorage or Washington, D.C. A candidate who meets the legal and constitutional requirements is allowed to run, end stop, and Republicans have run the same disreputable playbook numerous times across the country — including against Peltola recently by supporting a fringe candidate who was incarcerated in New York.

“Countless similarly questionable candidacies surely exist throughout the country in every election,” Alaska Assistant Attorney General Margaret Paton Walsh noted in a legal brief.

In Florida, Republicans successfully won an election by backing a candidate with the same surname as then-Democratic state Sen. Jose Javier Rodriguez, who lost by 32 votes to his GOP opponent. The results stood. What’s more, the scheme was legal and only led to a successful prosecution because of the illegal campaign contribution that came with it.

Until now, no federal government has suggested that a race could be nullified because of that common practice. 

“Pursuing ‘election integrity’ by sending armed government agents to question voters about how they chose to mark their ballots would be Orwellian and, indeed, illegal,” the ACLU told the judge. “Congress has forbidden such interference with voting many times over.” 

The Trump administration reportedly has already filed a notice of appeal with the Ninth Circuit. That should not get very far, but perhaps it will cause a post-election delay that might work in the White House's favor. In Klasfeld's view, this is just another example of our current president (and his party) acting in ways that run contrary to American norms:

Whatever the justifications, democracies do not propose, conduct, or tenaciously seek investigations of how voters intended to cast their ballots. Dictatorships do, but their requests typically come before captured judiciaries and controlled populations. That is not currently the case in the United States.

From polls to early voting records to humiliating courtroom defeats, the architects of the latest election interference scheme appear to be heading for a strong rebuke on Tuesday — in the courts and the ballot box.