When the rest of America has finished counting, the counting in Alaska may only be finding its rhythm. Control of the United States Senate could come down to a state where ballots arrive by airplane from villages no road reaches, where the law grants mailed votes ten days to come home from inside the country and fifteen from overseas, and where — as CNN reports — no winner can be declared for perhaps two weeks if no candidate clears fifty percent on the first count.
The race itself was born in confusion. On the ballot for the Senate stand two men named Dan Sullivan: the Republican incumbent, and a second man, Daniel J. Sullivan, whose presence — reported by The New York Times to have involved Democratic recruiting — has already produced lawsuits, criminal investigations and a preemptive suit from the Trump Justice Department, a legal hedge laid down before the votes were even cast. Alaska’s own Supreme Court ruled before the primary that the second Sullivan could stay on the ballot. The judge in the federal case is weighing requests from state election officials, Democrats and outside groups to throw the suit out, with a ruling possible as soon as this weekend.
The governor and the certificate
Into this uncertainty stepped the state’s Republican governor, Mike Dunleavy, who launched an investigation into whether Democrats sought to confuse voters by placing a namesake on the ballot. On Thursday he told NewsNation what might follow. “We’re going to investigate,” he said. “We find out there’s wrongdoing and if that means that the certification then is stopped or changed, then that’s what happens.”
It is an old instinct of power, this reaching for the seal and the signature when the numbers turn unfavorable — though here it is only an instinct I can observe in the record, not a deed done. Election law experts say the deed would fail. “If any state authority — whether it’s a canvassing board or secretary of state or governor — wants to interfere with the rights of the voters by delaying or denying certification, the same thing will happen what’s happened in the past,” said David Becker, a former Justice Department attorney and founder of the Center for Election Innovation & Research. “Parties with standing are going to go to the court. They’re going to get immediate relief.”
Derek Muller, an elections law professor at Notre Dame, notes that Alaska law does give a defeated candidate a path to contest an election over misconduct, fraud or corruption sufficient to change the result — a high bar, he says, and a courtroom process entirely separate from a governor refusing to sign. If a governor simply refuses, Muller said, “the court can order somebody else to do it.”
Why the count is slow
The slowness itself is older than the controversy, and it is written in the geography. Alaska is so vast and so scattered that communities lying off the road network must fly their ballots to be counted. “Alaska does it different than everyone,” said Derek Tisler, counsel with the Brennan Center’s Elections and Government Program. “It’s such a unique state given its geography, given how remote it is and how expansive it is.”
“This was common in Alaska to wait weeks on end for results in close races, even before ranked choice voting,” said David de la Fuente, deputy director for politics and research at the moderate think tank Third Way, who observed that Alaska is one of the few states where a substantial share of the population does not commute by car. The US Supreme Court this year had the chance to end the practice of counting ballots postmarked by Election Day but arriving after it; it ruled against the Republican challenge, in a case out of Mississippi.
Then comes ranked choice voting, which Russell Luke, a political science professor at the University of Alaska Fairbanks, says “certainly exacerbates the issue.” The state waits out the full fifteen-day window before running the tabulation, which is required when no candidate reaches fifty percent. On the Senate ballot, alongside the two Sullivans and the Democratic challenger Mary Peltola, stands a fourth man, the Republican Gerald Heikes. If nobody wins a majority outright, the fourth-place finisher is eliminated and his votes redistributed according to how his voters ranked the field; then the third-place finisher falls away and his votes flow to the top two, pushing someone past fifty percent. “In this particular Senate race, that is the likeliest outcome,” Luke said — no majority in the first round. The same machinery may grind through the state’s gubernatorial and House contests.
Luke’s plea to a watching nation is a simple one: the wait is the system working, not the system being robbed. “If it does take these two weeks to find out the actual composition [of the results], this isn’t a ballot manipulation — it’s not an attempt to alter the results of the election,” he said. “It’s simply how long it takes in Alaska. This is to be expected — it’s not extraordinary or outside the norm.” The danger, election officials warn, is that two weeks of silence is two weeks for rumors of cheating to breed.
January 3
Suppose, then, that Peltola wins, and Alaska certifies her, and she presents herself in Washington on January 3 when the new Congress convenes. Could the Senate refuse her? The question is being whispered, CNN reports, because President Trump has complained vocally about the Alaska race and questioned whether Peltola should be seated. Senate Republican aides would not say whether such an objection might be raised, or even what procedural mechanism could accomplish it. Such a move has never happened before, and there is no evidence at this point that it will.
The chamber’s customs are plain. A certified senator-elect delivers the certification to the Secretary of the Senate and is sworn in, typically by the vice president, alongside the other winners. A challenge to the accuracy of the result goes to the Committee on Rules and Administration, whose findings return to the full Senate, which could then expel the member by majority vote. The last time this machinery turned was 1996, when Louisiana Democrat Mary Landrieu was sworn in even as her opponent alleged fraud; a long investigation cleared her. More recently, Minnesota in 2008 offered a portrait of how slowly democracy can move while remaining, in the end, lawful: Republican Norm Coleman led by 215 votes after the first count, a recount put Democrat Al Franken ahead by 312, and the state’s Supreme Court did not declare Franken the winner until June 2009.
So the nation’s eyes may drift north, to a state where the Justice Department sued before a single vote was counted, where a governor muses about stopping the certificate, and where the counters wait for airplanes to come in over the tundra with envelopes postmarked on time. The machinery is slow because the land is large. Those who would call the slowness itself a crime have their answer ready, from the professors and the lawyers: this is not the theft. This is Alaska.