Alaska Supreme Court justices sounded highly skeptical of arguments that the Division of Elections had the authority to kick Petersburg retiree Dan Sullivan off the ballot for U.S. Senate because he shares a name and chose the same party as the incumbent Republican.
The justices repeatedly returned to the idea that the division could just differentiate the two candidates, with, for example, middle initials.
Chief Justice Susan Carney said that the division, by expelling the candidate, had chosen “the most extreme remedy possible.”
“Why not use one of the lesser ones?” she asked the private attorney representing the division, Christopher Murray of Colorado.
The case has attracted national attention, in part because of the novelty of it, but also because Sen. Sullivan and his Republican allies see it as an unfair threat to his reelection, a devious way to draw votes away from an incumbent. In a close election and a closely divided Senate, control of the chamber could be at stake.
Fourteen other states filed a friend-of-the-court brief to support the state’s decision.
Murray argued that the Division of Elections was justified in disqualifying Petersburg Sullivan because it concluded he meant to confuse voters, in part by choosing the Republican Party only when he filed to become a candidate. And, Murray said, when the division later asked how he wanted to be identified on the ballot, the challenger wrote “Dan S. Sullivan.” The incumbent is Dan S. The challenger is Dan J. The Petersburg man wrote another email hours later to correct himself.
Murray argued the inaccuracy is telling.
“That's not an innocent mistake, or random mistake,” Murray told the justices. “There's a lot of other letters in the alphabet that could have been a typo. The fact that he picked the middle initial of the sitting United States senator that he's purporting to genuinely challenge — we don't think that the division is obligated to not notice that as very, very troubling.”
Justice Aimee Oravec said it’s fine for the division to notice.
“The issue is whether that justifies booting someone off the ballot versus mitigating, which you're clearly authorized and empowered to do,” she told Murray. “There's a lot of different ways you can distinguish these two candidates on the ballot, short of precluding access to the ballot to begin with.”
A Superior Court judge ruled Friday that the division was wrong to give the second Sullivan the boot, teeing up the division's appeal.
If the Supreme Court agrees Petersburg Sullivan has a right to be on the ballot, there’s still the question of how he will appear. The division says middle initials aren’t sufficient.
“Two identical names, differing only by one letter, would be confusing and misleading to voters and run the risk of voters inadvertently selecting the candidate they did not intend to vote for,” the division said in its brief to the court.
If ordered to let the challenger on the ballot, the division proposes to identify him as “Sullivan, Daniel James Jr. (Nonpartisan)” while listing the senator as “Sullivan, Dan (Registered Republican) Incumbent.”
“They can’t do that,” the Petersburg man’s attorney, Jeffrey Robinson, argued.
“There's no authority for the proposition that, in order to avoid confusion, the director can change the party affiliation,” Robinson said.
Justice Carney said the court would strive to issue at least a short decision soon, with a longer opinion to follow.
The Division of Elections has said it has to begin preparing ballots Tuesday at noon.
