The Alaska Mess is Coming to Washington; It Won’t End Well for Republicans

Alaska’s elections are a mess, and the outcome of this year’s US Senate contest, still undecided at this point, is murky. Worse, if Democrat Mary Peltola “wins” the election, it’s a mess that will be spread across both the outgoing and incoming US Senate, along with departing (Republican) and incoming (Democratic, most likely) governors and lieutenant governors. Meanwhile, both Alaska’s Department of Public Safety and the US Department of Justice conduct criminal investigations. A federal US District Judge rebuffed a suit by the Trump Justice Department to deny certification if Peltola wins, but it is now on appeal.

This all stems from a New York Times story just before the election that Peltola and the Democratic Senatorial Campaign Committee (DSCC), the official campaign committee of Democratic US Senators, conspired to defraud voters by recruiting the state’s 27 Dan Sullivans to run for the sake of diluting the real Dan Sullivan’s vote totals, enough to prevent his winning.

And these aren’t the only moving parts. Alaska’s chief election official, the one who certifies elections, is outgoing GOP Lt. Gov. Nancy Dahlstrom. She leaves office on December 7th, the day her successor is sworn in. That election is also still technically undecided, but is likely to be won by a Democrat, Zachary Johnson, the nonpartisan running mate to Democrat Jonathan Kreiss-Tompkins. With all precincts reporting as of this morning, according to the Alaskan news site on X, The Alaskan Landmine, Kreiss-Tompkins sits .26 percentage points short of the 50 percent plus one threshold needed to win outright and avoid the state’s “ranked choice” system against three Republicans, who together collected about 50.2 percent of the vote. There were just under 700 write-in votes.

Even if the Democratic gubernatorial ticket needs to go through the next round of the “ranked choice” carousel, they’ll need about 4,000 “second place” votes from the remaining three GOP candidates to reach the magic winning threshold.

However, thousands of absentee and overseas votes still need to be tabulated. The Alaska Beacon news service had projected that Senator Sullivan would overcome Peltola’s margin after the “second choices” are tabulated, but that’s far from certain.

Peltola sits nearly 4,000 votes ahead of incumbent Senator Dan S. Sullivan, but well below the 50 percent threshold for an outright majority. Alaska election officials will now “rank” the votes of the two remaining GOP candidates, including the controversial and disappeared Dan J. Sullivan Jr. I’ve never done Alaskan politics, but my money is on Peltola getting enough second-place votes from the 10,000 votes for the other two “Republicans” (“Decoy Dan” J. Sullivan Jr. is a lifetime Democrat who was recruited by Democratic consultants) to edge out Senator Sullivan. And, again, there are those still-uncounted absentee ballots. I’m betting those favor Peltola.

The Constitution says that the US Senate (and House) sits as the judge of elections. And the Senate has dealt with its share of contested elections in recent years, at least 56 since 1826. A short walk through recent history of contested Senate elections is interesting, and Senate leaders are weighing all their options. At stake is whether the Democrats have 55 or 56 seats as they begin their new Congress. That may not seem to matter, but it could impact important things like committee ratios - it might cost GOP Senators a couple of key committee slots. And a Senate majority can do pretty much as it likes, which tells me a lot about the likely outcome of the Alaska disaster.

And in the process we may see an end to the Senate’s Rule XXII supermajority “filibuster” rule if Democrats insist on seating Peltola over unified GOP opposition, which is my guess at this point. (Even if she’s indicted, and even if Alaska officials don’t certify her election.) In 1974, New Hampshire’s Governor eventually certified Republican Louis Wyman as the winner of a US Senate race by a whopping two votes after recounts. But the Democrat-controlled 92nd US Senate eventually declared the seat vacant, resulting in a new election. Democrat John Durkin won handily and was seated.

We still need to let the Alaskan “ranked choice” system play out — a system that Alaskans really seem to like — along with the state and federal criminal investigations. The question is whether the Peltola campaign, the DSCC, or others violated any manner of laws, from mail and other official document fraud to “conspiracy against rights” (18 USC § 241).

Once all the votes are counted, the next step will be certifying the winner. Will Dahlstrom refuse to certify a Peltola win? Will the incoming Lt. Gov. Zachary Johnson certify her regardless, once he takes office on December 7th? All this, while federal and state criminal investigations continue, but will the new Democratic Governor end them once he takes office? Your guess is as good as mine. If I were him and a partisan Democrat, I would play Pontius Pilate and “pause” state investigations pending the outcome of the federal inquiry. In other words, seize the opportunity to “blame Trump.”

The Senate prescribes how to handle certifications under Rule II. The Secretary of the Senate (my former position) plays a ministerial role and presents election certifications to the President of the Senate, Vice President JD Vance. And, no, there is no legitimacy for Vance to intervene or cause mischief. If that thought crosses the White House’s collective mind, Leader Thune is likely to advise Vance not to meddle, which would backfire badly, and let the Senate take care of things.

Every time the Vice President — the President of the Senate — tries to meddle in Senate affairs, there’s immediate pushback. They get to break tie votes, preside over the Senate, and play various ceremonial roles, but nothing unifies the Senate more than a Vice President asserting themselves in Senate affairs. Just ask former Vice Presidents Hubert Humphrey and Nelson Rockefeller, both of whom tried to rule from the President’s desk that the filibuster rule was null and void unless a new Congress reinstated it. A bipartisan Senate majority overruled them.

The Senate’s official website outlines what will happen, based on rules, procedures, and historical precedents:

The Senate may conduct an investigation when a losing candidate presents a petition challenging the conduct or outcome of an election, or when a sitting senator introduces a resolution to contest an election. The contest may relate to the actual conduct of the election (such as vote counts or electoral irregularities) or electoral misconduct by the candidates or their supporters. When such a petition or resolution is offered, the Senate may accept the election credentials of a senator-elect and choose to seat him or her without prejudice. If a subsequent investigation indicates no wrongdoing, the senator remains in office. If the investigation determines that the election challenge is supported by the evidence, the senator could be excluded from the Senate by a simple majority vote. Most, but not all, of these cases are referred to a committee to review the case and make a recommendation to the full Senate.

The Senate may or may not follow those recommendations. In 1974, faced with two contested elections, they accepted one (creating a New Hampshire seat vacant) and rejected another (refusing to declare an Oklahoma seat vacant, on a vote of 47-46, and allowing US Sen. Henry Bellmon, a Republican, to serve. He’d already been provisionally certified the winner). The Democratic-controlled Senate Rules Committee had voted Ed Edmondson’s way, but 9 Democrats joined all Republicans to reject the Committee’s advice.

Bellmon retired from the Senate six years later and was succeeded by Republican Don Nickles. Bellmon returned to the Oklahoma Governor’s mansion in 1986, where he had served from 1963-1967. He passed away in 2009.

The “losing” candidate in Alaska is likely to petition the US Senate to challenge the certification and seating of the “winner.” That petition would likely be referred by outgoing Senate Majority Leader John Thune to the Senate Rules Committee, while the GOP still controls the upper chamber. Chairman and retiring US Senator Mitch McConnell might follow the 1974 Wyman-Durkin precedent (more about that in a moment), in which Wyman was eventually certified the winner but saw his seat declared vacant by the Senate. The GOP Majority on the committee could adopt a resolution recommending an investigation, keeping the seat vacant in the meantime, or “provisionally” seating the winner while the investigation continues.

There are plenty of other precedents the Senate could follow, but the latter one — seating the new Senator “provisionally” — is the most likely. The Senate, despite its divisions, remains a clubby institution where partisanship still has its limits, at least theoretically. Many Republicans protest and unify in opposition to certification until the investigations are complete, and may even demand the seat be declared vacant for another election, depending on how the investigations progress, but Democrats will waive Peltola’s likely election certification in their faces and cite Bellmon and perhaps other examples.

The new Democratic Senate will ultimately decide what to do, and the newly-constituted Rules and Administration Committee could reverse whatever recommendation the McConnell-led Committee issued.

The criminal investigations into the Peltola-DSCC collusion will likely take a while, certainly beyond December 7th and likely beyond January 5th, when the new 120th Congress is seated. Meanwhile, I suspect Alaska will certify the “winner” of the final vote count and the new Senate will provisionally seat Peltola “without prejudice.” They may vote for the Rules and Administration Committee to conduct its own investigation.

What happens if Peltola wins and is indicted?

Nothing, most likely. A Democratic Senate will protect one of its own until it becomes politically unpalatable to do so. However, if she is eventually convicted, she’ll likely be pressured to resign as she appeals. But she is under no obligation to do so under Senate rules or federal law. She would forfeit her right to vote under Alaska law, but not her ability to serve as a US Senator. While a two-thirds vote is required to expel a senator, the Constitution does not prohibit a convicted felon from serving in Congress, even if incarcerated.

Sorry to burst my GOP friends’ bubble, but unless incumbent Dan S. Sullivan is certified the winner, the cards are stacked against him in a Democratic-controlled Senate. Even if the right thing to do, as the criminal investigation may prove, is to have another election. That said, if Peltola is indicted and convicted, her time in the Senate could be short, indeed. In that case, the new Democratic Governor (if he wins) will appoint another Democrat to fill her shoes until the next general election.

Elections have consequences.