DOJ faces ‘heavy lift’ in Alaska election appeal as separate criminal probe continues

The Justice Department faces an uphill legal battle in its bid to overturn a federal judge's dismissal of its Alaska Senate election lawsuit, according to legal experts who questioned whether the government can secure meaningful relief before voting ends Tuesday — even as a separate criminal investigation continues.

DOJ filed a notice of appeal after Obama-appointed U.S. District Judge Sharon Gleason dismissed its lawsuit Sunday over the presence of two candidates named Dan Sullivan on Alaska's Senate ballot. The judge ruled that federal officials lacked standing because they had not demonstrated how their proposed remedy could address potential voter confusion without compromising ballot secrecy.

With voting ending Tuesday, attorneys told Fox News Digital that even a successful appeal could leave the government scrambling to obtain an injunction or return to district court, while a defeat would leave the civil case dismissed without necessarily affecting potential criminal charges arising from the alleged recruitment of the second Sullivan.

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"The federal judge dismissed on a procedural issue — standing," election attorney Jason Torchinsky of Virginia-based firm Holtzman Vogel told Fox News Digital. "So if the government were to prevail, it would either have to seek injunctive relief from the appeals court in the first instance, a very high bar, or go back down to the district court to seek relief."

"Given the time available between now and close of polls [Tuesday], this is a heavy lift for the government," Torchinsky added.

A reversal would not automatically change Alaska's election results. DOJ would still need to obtain specific judicial relief, potentially requiring further proceedings in district court.

Former federal prosecutor and ex-Pentagon official Cully Stimson similarly said that DOJ will have difficulty securing any immediate relief in its effort to pause the Sullivan-Peltola contest.

While Gleason was appointed by Obama, Stimson suggested the ruling did not appear partisan and said uncertainty remains because voting had not yet concluded.

"I'm not surprised that the judge did this. I don't think it would matter whether an Obama judge or any other judge appointed by any other president," Stimson told Fox News Digital.

"Asking for injunctive relief way before anything even happens is a reach," he said, adding Alaska falls under the San Francisco-based Ninth Circuit, which will hear any appeal.

But Stimson suggested DOJ may have a longer-term objective beyond winning an immediate injunction: establishing a legal record that could support further proceedings after the election, once the votes are counted.

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"They may be filing these suits to establish a record and force Alaska and others supporting the status quo to defend what's happening, knowing that there's some level of confusion, and they have the legal wheels churning," he said. "So after the vote is [over], they've started the legal wheels rolling."

Former Assistant U.S. Attorney for North Florida Zack Smith added that if the Ninth Circuit does not hear the case promptly, DOJ could seek emergency review from the U.S. Supreme Court.

While the Alaska case is considered unprecedented, according to the experts, the idea of a Supreme Court expedition at election time is not.

On Dec. 9, 2000, one day after the Florida Supreme Court ordered a manual recount of disputed ballots in the Bush v. Gore presidential election dispute involving "hanging chads," then-Texas Gov. George W. Bush’s legal team successfully sought emergency intervention.

The court ultimately decided in Bush’s favor within a week.

Since the disputed 2000 election, which featured "hanging chads" on hole-punched paper ballots and the Brooks Brothers Riot at the Miami-Dade elections office, DOJ has become well-accustomed to the expedited-review process, the experts said.

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"DOJ is familiar with kind of working quickly, getting things to the Supreme Court, and so I wouldn't be completely surprised if you were to see something like that," Smith said.

Bush v. Gore offers a procedural parallel because federal courts were asked to intervene in the administration of a state-run election.

"Florida was conducting the election in the manner under Florida law, under this time, place and manners set out by Florida law even though it was a federal election," Stimson said. "They used a particular type of ballot, which had those so-called dangling chads, which were punch-holes that didn't come the whole way off, so the hole was left with a little tag, essentially like a skin tag, and eventually the Supreme Court of Florida ruled."

"But because there were federal violations, eventually the Supreme Court weighed in and stopped it. And at no point in time had the vice president’s (Albert Gore) vote count ever surpassed that of the governor (Bush) and because it was a federal interest, the Supreme Court stepped in and stopped this counting at the state level."

Alex Charns, an attorney who has argued in federal court, told Fox News Digital that the clock has run out and DOJ's goal of segregating ballots based on voter intent is no longer possible.

"I've litigated against the USDOJ for over thirteen years in federal court. I've practiced law in Durham, N.C., for 43 years. The USDOJ filed a case without legal merit and its appeal is likely to fail," he said.

"In addition, voting ends [Tuesday]. The relief they seek isn't possible — ballots already cast can't be segregated. Also, one cannot tell why any voter voted in a particular way. The appeal is unlikely to be successful."

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In a statement from the DOJ's "Rapid Response" (DOJ-RR) office, a spokesperson said the court "dismissed the case on procedural grounds but did not dispute the argument of the United States that Daniel J. Sullivan (a/k/a Decoy Dan) entered the race as a frivolous candidate to confuse voters."

"Alaskan voters deserve a fair election, not to be misled in an attempt to rig outcomes," DOJ-RR said, announcing their appeal.

Stimson cautioned that the outcome of the civil litigation would have little bearing on the separate criminal investigation, which could uncover evidence supporting additional legal action even if DOJ's appeal fails.

"As long as that criminal investigation is going on, you're not breathing easy," he said, adding that evidence uncovered by federal investigators could potentially provide grounds for a separate civil lawsuit.