By: Corinne Smith, Alaska Beacon

Members of the Alaska House Judiciary and State Affairs committees held an investigatory hearing on Monday about the state’s decision to remove a candidate from the U.S. Senate election with the same name as the incumbent  — Dan Sullivan.

The Division of Elections announced that Dan J. Sullivan, a retired teacher from Petersburg, was not eligible to run for the U.S. Senate. It cited complaints from the incumbent and Republican groups when it decided his candidacy was not in “good faith,” and aimed at confusing voters with the incumbent U.S. Sen. Dan Sullivan. The division cited a state regulation that forbids the Division of Elections from listing a candidate’s name “in a manner that is confusing or misleading to voters or compromises the fairness or neutrality of the ballot.”

But some lawmakers questioned the decision and the division’s authority to remove the challenger candidate. An attorney representing the Alaska Legislature issued a legal memo Wednesday saying the decision to disqualify the candidate was likely unlawful, since he did not violate the U.S. Constitution’s qualifications to run for office. 

The hearing took place as Dan Sullivan of Petersburg filed an appeal of the state’s decision to disqualify him from the ballot on Monday, taking the issue before a state superior court. In the complaint, Sullivan defended his eligibility and challenged the division’s decision to remove him. He argues the action is unlawful, and is asking the court to overturn the decision and restore his name on the ballot for the August primary.

Lawmakers held a hearing in Anchorage to investigate the division’s decision. Division officials declined to appear so the committee relied on testimony from attorneys.  

Judiciary committee chair Rep. Andrew Gray, D-Anchorage, opened Monday’s hearing by saying the issue under scrutiny was not the particular candidate or his motives, but about the limits of the division’s authority and whether that authority is being applied fairly.

“What authority does the Division of Elections have to remove a candidate from the ballot, and has that authority been exercised consistently?” Gray said. “Those questions matter because public confidence in elections depends on more than accurate vote counting. It depends on the public’s confidence that the rules are applied equally to everyone.” 

Gray cited a previous case where the candidate’s political motives and eligibility were challenged, but the state took a different stance. When the Alaska Democratic Party sought to remove Eric Hafner, a U.S. House candidate imprisoned out of state, the division defended his right to run for office. The Alaska Supreme Court allowed him to remain on the ballot. Hafner is running for the seat again this year. Gray emphasized the difference in the state’s approach.

“When a government agency departs from positions it has taken in previous cases, the public deserves an explanation,” Gray said. “And when a government agency removes the candidate from the ballot, the public deserves a very clear explanation.”

Lawmakers called the hearing and requested the division director, Carol Beecher, appear and participate in providing further information and an explanation for removing Sullivan. Beecher declined last week, citing the division’s work preparing the ballot scheduled to be printed on June 28. 

Legislators then issued a rare legislative subpoena and served Beecher on Sunday to compel her to appear before the committee. 

On Monday, Lt. Gov. Nancy Dahlstrom, who oversees the state’s election system, issued a letter again declining to appear and threatening legal action. 

“If you refuse, we may have no choice but to seek to quash the subpoena in court due to the unreasonable timeframe provided and the lack of urgency while the appeal period is still pending,” Dahlstrom wrote.

Gray noted that division officials gave Sullivan of Petersburg only one day to respond to questions, and then removed him from the ballot four days later. He announced at the hearing that they had rescinded the subpoena and agreed that elections officials would participate in another investigative hearing scheduled for July 22.

On Monday, the committee heard from several attorneys with experience working on elections issues, including Andrew Dunmire, a legislative attorney who wrote a legal memo saying the division’s actions were likely unconstitutional. 

Dunmire wrote that under the U.S. Constitution, there are three qualifications for federal candidates: they must be at least 30 years old, a U.S. citizen for at least nine years and an inhabitant of the state when elected. He said, as seen in previous cases, states are not allowed to add to those qualifications. 

“The US Constitution is the supreme source of law in our country, and there’s no administrative regulation that can override a constitutional requirement,” he said. 

Lawmakers discussed the state regulation cited by elections officials which prohibits the division from placing names on the ballot “in a manner that is confusing or misleading to voters or compromises the fairness or neutrality of the ballot.”

Several Republican members of the committee defended the division’s actions, including Rep. Mia Costello, R-Anchorage, who said the division has a responsibility to protect the ballot from confusing or misleading voters. 

“The division does have a responsibility to determine whether or not the voters are being misled, whether it has to do with how long they’ve lived here, whether it has to do with their name,” Costello said, and questioned whether Sullivan’s motives should be further investigated by the U.S Department of Justice or the Federal Elections Commission. 

“I hope that this issue is resolved, so that anybody who wants to run for office in the state of Alaska can do it, but they cannot do it in a manner that is going to confuse or undermine the importance of elections,” she said.

But Dunmire, with Legislative Legal Services, said while the state can investigate allegations of campaign misconduct, the division has no authority to investigate a candidate’s motives in running for office. 

“It is not the division’s role, they have no explicit authority in situations like this to look into a candidate’s motivations,” he said. 

Dunmire noted state regulation has rules for when two candidates with the same name appear on the ballot. Candidates’ names would appear with a middle initial, in this case the challenger as “Dan J. Sullivan,” and the incumbent as “Dan S. Sullivan.”

Hollis French, a former state senator and prosecutor, was invited to testify before the committee and did not mince words. 

“I don’t think you would need any special legal training to smell a rat here,” French said. “If a prisoner with no ties to the state of Alaska in New York state can be put on the ballot for federal office in the state of Alaska, I think the Division of Elections is sort of foreclosed from then on, from engaging in what they’ve engaged in this case.”

French said as a prosecutor, it’s nearly impossible to prove someone’s motives. He emphasized the division can take steps to distinguish the two names on the ballot, and then it’s up to candidates to campaign and appeal to voters. 

“There’s a way to designate that in a neutral manner on the ballot, and then put the burden on the candidates to remind everybody that they’re the Dan Sullivan from Fairbanks or the Dan Sullivan with an S, or the Dan Sullivan with a J,” he said. 

Rep. Ashley Carrick, D-Fairbanks and chair of the House State Affairs Committee, said she was highly concerned about a subjective standard for candidates imposed by the division that may erode the trust of voters. 

“I think there’s a clear risk in the longer term future to the Division of Elections and Alaska’s election integrity if we see mistakes or differences of opinion in how this authority to investigate can be utilized,” she said. 

“And really, truly, my biggest concern here is that if ‘good faith,’ as was stated in the memo from the Division of Elections, becomes an additional implicit standard for candidacy, Alaska will have added more than just an additional requirement. We will have functionally added a subjective standard for qualification to run for office.”