Justice Department Amends Its Alaska Senate Suit Five Days Out, Adding a Supremacy Clause Claim

The Justice Department amended its lawsuit over Alaska’s US Senate count on Thursday 29 October, five days before the election, adding a second legal claim and allegations taken from a newspaper investigation, and then told the court that the new pleading made three pending motions to dismiss moot.

The first amended complaint in United States v. State of Alaska, No. 3:26-cv-00376, was filed at 12:55 p.m., according to a declaration by Margaret Paton Walsh, an assistant attorney general who represents the state’s election officials. At 2:25 p.m. the department filed a four-page opposition that does not argue the merits. Judge Sharon L. Gleason had ordered it to answer the state’s motion to dismiss by 3:00 p.m. that day.

The suit asks the court to stop Alaska certifying the result if Senator Dan Sullivan loses by less than the vote of a second candidate, Daniel J. Sullivan Jr. This publication examined the original complaint when it was filed on 22 October, and the state criminal inquiry ordered by Governor Mike Dunleavy on 28 October.

What did the amendment change?

It added a count and a source, and left the request as it was. Count One still rests on the National Voter Registration Act’s statement of purpose, 52 U.S.C. § 20501(b)(3), and on § 20510(a), which lets the Attorney General seek relief “as is necessary to carry out” the act. Paragraph 50 repeats, word for word, the original test: a result is “impacted by voter confusion” if Senator Sullivan loses and would have won had all votes for Daniel J. Sullivan gone to him. The prayer for relief still asks for an injunction against certifying such a result “pending an investigation to determine whether votes cast for Daniel J. Sullivan were meant to be cast for Senator Sullivan.”

Count Two is new. It invokes the Supremacy Clause and the doctrine of obstacle preemption, under which state action that stands in the way of a federal law’s purposes gives way. The federal purpose it names is the same clause of § 20501. Certifying a result “that may be impacted by the scheme,” paragraph 55 says, “would frustrate Congress’s objectives.” The motion to dismiss filed the same day by Alaskans for Mary, Mary Peltola’s campaign committee, and the Democratic Senatorial Campaign Committee calls it “just Count I in a costume,” and cites Armstrong v. Exceptional Child Center (2015), in which the Supreme Court held that the Supremacy Clause does not itself create a cause of action.

The new facts come from a newspaper investigation published on 28 October, which the complaint quotes at length. It reported, the complaint says, that operatives aligned with Ms Peltola recruited would-be spoiler candidates through what was internally called a “Ballot Composition Project.” The complaint introduces its source with a reservation of its own: what that paper reports “is not always true,” paragraph 2 says, but here it “aligns with what the United States has been alleging on information and belief.” The Peltola campaign and the DSCC deny any connection to the effort to put Daniel J. Sullivan on the ballot, CBS News reported.

The amendment also accuses the intervenors of misleading the court. Their proposed answer said they “lack knowledge or information sufficient to form a belief” about the purposes of Daniel J. Sullivan’s candidacy. Paragraph 38 says they “appear to have turned to misleading this Court.” On 28 October the department withdrew its opposition to the campaign’s intervention and said it intends to seek expedited discovery from it.

Why does an amendment matter five days before the vote?

Because it resets the briefing. Federal Rule of Civil Procedure 15(a)(1) lets a party amend once as of right early in a case, and in the Ninth Circuit an amended complaint “supersedes the original, the latter being treated thereafter as non-existent,” the department’s opposition says, quoting Ramirez v. County of San Bernardino (2015). A motion aimed at a pleading that no longer exists is moot. “All three motions to dismiss,” the opposition concludes, “should be denied as moot.” On that reading the defendants must start again against a complaint they first saw that afternoon.

They did so within hours. The state’s Division of Elections moved to dismiss the amended complaint “immediately, with prejudice,” describing the registration act as “a voter registration law” in a case “which has nothing to do with voter registration.” In a motion to expedite it asked for a decision by Monday 2 November and said the court “should not tolerate this gamesmanship.” The campaign, joining, said the suit should not “hang like the Sword of Damocles over the ongoing election.” The League of Women Voters intervenors asked the court to “consider sanctions.”

The table sets out the docket’s last eight days. It is this publication’s compilation from the filings, with docket numbers as the court assigned them.

Who stands where on the state’s side?

Not in one place. Carol Beecher, the Division of Elections director, is a defendant, and her 15 June letter finding that Daniel J. Sullivan filed “with a purpose to confuse or mislead” is still the complaint’s Exhibit A. A superior court reversed it on 26 June and the Alaska Supreme Court affirmed on 29 June. Her lawyers from the state Department of Law now ask for dismissal with prejudice and list five ways the ballot separates the two men, including the middle initials, the “Jr.” and the word “Incumbent.” Paragraph 42 of the amended complaint, meanwhile, quotes Governor Dunleavy’s post on X directing the Department of Public Safety to investigate “whether criminal charges or civil action are warranted.”

The criminal side is moving separately. Reuters reported that the department issued 40 subpoenas and document-preservation requests alongside the revised complaint, according to Al Jazeera. CBS News, citing people familiar with the matter, reported a new wave of subpoenas to several Democratic officials without giving a number, and quoted a department official who named 18 U.S.C. §§ 241 and 242 as possible bases for prosecution. Asked whether any voter had reported choosing the wrong Sullivan, the official said: “I think I’ve not heard of that, but it’s hard to tell exactly.” Nobody has been charged.

The election is on Tuesday. If the state’s schedule is followed, the court rules the day before; if the department’s reading of Rule 15 is followed, the briefing starts again. No order on the renewed motions was among the filings this publication read on 30 October. The amendment changed the theory and the source. It did not change the date it gives for the primary, 28 August. The Division of Elections held it on 18 August.