On Thursday night, the Republican Governor of Alaska refused to commit to certifying the outcome in the Senate race if Democrat Mary Peltola wins. Which means that if she does triumph, refusing to seat Peltola could well become a cause celebre on the right—one that Donald Trump requires Republicans to commit to under threat of excommunication from MAGA.
Democrats are already preparing for a range of scenarios along these lines. And while this GOP gambit is very unlikely to succeed, it could get awfully nasty.
Governor Mike Dunleavy’s comments came in a discussion about the controversial report this week that Democrats conspired to get a second “Dan Sullivan” on the ballot to siphon votes from GOP Senator Dan Sullivan. The governor has ordered a criminal probe of the move, and a reporter asked him if he’ll certify the election if she’s still under that investigation.
“If we conclude that there were things that should not have happened, that are illegal, we will act on that,” Dunleavy said. “That may in fact impact whether somebody is seated in the U.S. Senate.”
A quick recap: The New York Times reported that Democratic Party operatives, including on the Peltola campaign, were involved in an elaborate scheme to encourage people to run for Senate to pull votes from the GOP incumbent. It’s unclear how much Peltola herself knew about this, but many senior operatives appear to have been involved.
How bad was this plot? In my view, it’s scummy and anti-democratic conduct. But it’s routine as ratfucking goes. Indeed, Democrats quickly cited numerous examples of Republicans engaged in lots of similar chicanery. Let’s get real: we live in a world where Trump ordered multiple GOP state legislatures to execute extreme gerrymanders for the explicitly declared purpose of holding the House, where Trump has called on congressional Republicans to seize control of state-administered elections, and where Trump still won’t commit to accepting a midterm defeat.
In that world, the Alaska saga is pretty damn small electoral potatoes. The ballot will be clearly labeled by party and it’s unlikely to make any difference. Besides, as I wrote in my 2018 book, if only one side adheres to norms of fair play in politics, that is itself destabilizing. Generally speaking, mutual escalation of hardball tactics may be the only way to compel some kind of detente over time.
All that aside, the second “Dan Sullivan” says his decision to run was his own, and state courts (in a separate lawsuit) have already upheld his right to do so. Yet Trump’s Justice Department is already suing to force Alaska not to certify the results, insisting the second “Dan Sullivan” will invalidate any outcome (other than a GOP victory, of course).
Here’s where Alaska’s governor comes in. Look closely at his full remarks:
We are going to investigate. We are going to follow the law. And if we conclude there were things that should not have happened—that are illegal—we will act on that. And that may in fact impact whether somebody is seated in the U.S. Senate.
Can Dunleavy really “act” to impact whether Peltola is seated? Maybe.
According to election law expert Rick Pildes, the governor and lieutenant governor transmit a certified election result to the U.S. Senate. Notably, the latter is Republican Nancy Dahlstrom, who previously disqualified the second Dan Sullivan from running (the state courts overturned this). She’s also openly aligned with MAGA. So we know where her loyalties lie.
The two of them, then, could theoretically decline to transmit certification. But this would immediately face court challenge. As Democratic election lawyer Marc Elias notes, sending certification is the governor’s legal duty.
“Whatever the governor may feel, it is his legal obligation to sign the paperwork to go to the U.S. Senate,” Elias tells me. “If he doesn’t, he will be sued. And he’ll have to sign it anyway.”
The court battle would turn on whether there’s any real evidence that the second “Dan Sullivan” on the ballot legitimately did confuse enough voters to affect the outcome. “That would be highly unlikely and extremely difficult to prove,” Pildes told me. He noted that Alaska’s ranked-choice voting makes it even more remote, since any voter confused about the two “Dan Sullivans” would almost certainly vote for the other as second choice should non-Senator Dan Sullivan be eliminated in the first round.
A key nuance: Note that Dunleavy says he might refuse to send certification only if the state investigation of the ballot-packing finds criminality (which is not impossible but highly unlikely). But even if it did, that still wouldn’t justify non-certification, Pildes says, and the courts would overturn it.
That’s because only a concrete finding of a genuinely tainted outcome in which a majority didn’t get its way would suffice, Pildes says. And Trump’s federal lawsuit won’t force Alaska not to certify, legal experts say, because it interferes with the state’s constitutionally protected oversight of its elections. (In another complication, Alaska gets a new governor in December; which party wins will matter.)
Could the Senate refuse to seat Peltola? Theoretically, the Senate could vote to postpone her swearing-in regardless of the certification sent by Alaska, says election law expert Rick Hasen. Then a complicated internal process would kick in, and much would turn on which party controlled the Senate and its Rules Committee at that point. “It would likely be resolved,” Hasen says, “but it could get ugly.”
Here’s the bottom line: All these legal details are almost beside the point. If Peltola wins, it simply will be a legitimate victory as a legal matter. But Trump is clearly laying the groundwork to exploit all these pressure points to stall her seating regardless of what facts and law dictate. Asked recently if Peltola should be seated, Trump declared: “It’s hard to believe that she can even be allowed to run.”
So even if Trump’s federal lawsuit pressuring Alaska won’t work, it’s actually designed to feed the mere impression that the results are tainted. He will then exploit public confusion—created by him—to loudly demand that the Alaska governor refrain from certification. He will insist—again, relying on confusion he helped create—that Senate Republicans sabotage Peltola’s seating.
It’s all very unlikely to succeed. But if you don’t think Trump will do everything in his power to delay the inevitable for as long as possible—and if you don’t think this could get extremely vicious or even violent—then you haven’t been paying attention.
