DOJ seeks to wipe out bids to dismiss Alaska election case after amending lawsuit

The Department of Justice (DOJ) asked a federal judge Thursday to throw out all pending motions seeking to dismiss its lawsuit targeting Alaska’s U.S. Senate election. DOJ argued that a newly amended complaint it filed rendered all of those challenges moot.

The move could reset the fast-moving case just days before Election Day, after Alaska election officials and Democratic groups* urged U.S. District Judge Sharon Gleason to dismiss DOJ’s lawsuit on an expedited schedule.

DOJ’s suit seeks to block Alaska from certifying its Senate election if Republican Sen. Dan Sullivan loses and votes cast for another candidate named Daniel J. Sullivan could theoretically change the outcome.

Alaska Elections Director Carol Beecher has asked Gleason to dismiss the case, calling DOJ’s complaint legally baseless and warning that the lawsuit itself casts a cloud over the election. The Democratic Senatorial Campaign Committee and Democratic nominee Mary Peltola’s campaign have separately called the case “wholly baseless”.

But rather than respond to those dismissal arguments on the merits Thursday, DOJ told Gleason that none of the pending motions should be considered at all.

The department filed a first amended complaint earlier Thursday adding new factual allegations and a new claim under the Supremacy Clause.

Under longstanding federal procedural rules, DOJ argued, that amended complaint superseded the original one and left the first pleading legally nonexistent.

“When a pending motion to dismiss targets a ‘non-existent’ complaint that is ‘no longer in effect,’” DOJ wrote, Ninth Circuit precedent instructs courts to deny the motion as moot.

“All three motions to dismiss … should be denied as moot,” the department told Gleason.

The amended complaint added a second cause of action under the Supremacy Clause, arguing that certifying a result allegedly distorted by voter confusion would frustrate Congress’ purpose of protecting election integrity under the National Voter Registration Act.

DOJ says its additions are reason the existing dismissal motions cannot stand because none addresses the new preemption claim or new allegations.

The department’s requested relief, however, remains essentially unchanged.

If Sullivan loses and assigning all of Daniel J. Sullivan’s votes to the incumbent would change the result under Alaska’s ranked-choice voting system, DOJ wants the state barred from certifying the election pending an investigation into whether voters who selected Daniel J. Sullivan actually intended to support the incumbent.

The immediate question is now whether Gleason accepts DOJ’s attempt to reset the briefing.

She could agree that the pending motions are moot and require defendants to file new challenges to the amended complaint. But the court could also move quickly to preserve the expedited schedule in a case where election officials have pressed for a ruling before Election Day.

DOJ itself has emphasized the urgency of resolving the dispute before Alaska completes its election.

Its decision to rewrite the lawsuit now creates a new procedural fight over whether the judge must first start over on the motions seeking to end the case.

*The Elias Law Group (ELG) represents the Democratic parties in this case. ELG firm chair Marc Elias is the founder of Democracy Docket.