Dan Sullivan

An opinion piece in The Wall Street Journal last week argued that Alaska U.S. Senate candidate Dan J. Sullivan is potentially violating federal civil rights laws, specifically 18 U.S.C. 241, by placing his name on the same ballot as incumbent Republican U.S. Sen. Dan S. Sullivan. The authors, both longtime GOP operatives, claim that Dan J.’s motive is to confuse voters (and take votes from Dan S.), and that his candidacy — being accomplished through a conspiracy (as all candidacies are) — is subject to federal prosecution. Days later NBC News reported, based on anonymous sources, that the Trump administration’s U.S. attorney in Alaska, along with the assistance of the FBI and Alaska authorities, was investigating Dan J.’s candidacy.

On June 29, the Alaska Supreme Court affirmed a lower court’s ruling that Dan J.’s removal from the ballot violates the U.S. Constitution as well as Alaska law. As I have explained previously, the Alaska court’s holding is “eminently reasonable.” Unless state election officials are delegated authority to remove candidates whom they believe are acting in bad faith by the state Legislature — something that has not happened in Alaska — Article I of the Constitution prohibits them from unilaterally policing the subjective motives of candidates.

The opinion piece in the Wall Street Journal and the investigation reportedly undertaken by the U.S. attorney now push to the forefront whether federal civil rights laws somehow prohibit Dan J.’s candidacy. The answer is no. Putting aside the shameful political animus that saturates the reported “investigation” of Dan J., the claim that a candidate for state or federal office can violate federal civil rights laws by lawfully (as the Alaska courts have already determined) placing his name on the ballot to challenge an incumbent is preposterous. This remains true regardless of Dan J.’s motive and whether he received assistance from Democrats.

Section 241 of Title 18 of the United States Code cannot under any conceivable interpretation be applied to Dan J.’s candidacy. An anti-Ku Klux Klan statute passed during Reconstruction, it is designed and written to prohibit conspiracies that interfere with voting. It has nothing to do with running for office. It provides that a conspiracy “to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of” their right to vote “with intent to prevent or hinder his free exercise or enjoyment” thereof is guilty of a felony. No credible concoction of Section 241 could ever suggest that a candidate’s lawful run for office, regardless of motivation and assistance, somehow violates the civil rights of voters.

Importantly, claiming Dan J.’s candidacy is part of a conspiracy with Democrats (or anyone else) does not change this. As the Michigan Court of Appeals stated in response to Democratic challengers’ claims that Ralph Nader’s 2004 presidential campaign was being financed by Republicans (and thus illegal), “(t)here is a fundamental difference between actions taken to get a candidate’s name on the ballot and actions taken to prevent it from appearing. Associating for the purpose of getting a candidate’s name … on the ballot is protected activity under the First Amendment; conspiring for the purpose of having it removed is not.”

Far from committing a crime, Dan J. has a protected First Amendment right to run for office in Alaska against the Republican incumbent Dan S. and to seek assistance from whomever he chooses, including Democrats. Even if his identity were to falsely and confusingly suggest that he is the incumbent GOP senator from Alaska, his campaign for office under his given name would still be protected from criminal prosecution by the First Amendment. False political speech, after all, remains constitutionally protected, and as the Supreme Court has explained, false “electoral speech (complaints) are of particular concern” under the First Amendment. Criminal enforcement of false electoral speech complaints chills quintessential political speech while empowering powerful political opponents, who can obtain a “campaign advantage” and “maximum disruption of their political opponents” by merely lodging a complaint. “(T)he target of a false statement complaint may be forced to divert significant time and resources to hire legal counsel and respond to discovery requests in the crucial days leading up to an election.”

Of course, that is exactly what is happening here. The Trump administration’s ridiculous “investigation” and implicit threat of criminal prosecution is designed to disrupt Dan J.’s candidacy. It is for that reason that courts have ruled false electoral speech statutes unconstitutional. Allegedly false electoral speech — which is not the case with Dan J., since that is his real name — cannot constitutionally be prosecuted simply because it confuses or misleads voters. The First Amendment prohibits it. If it were any other way, a host of candidates would be in prison.

Mark R. Brown holds the Newton D. Baker/Baker & Hostetler Chair at Capital University Law School. He clerked for Judge Harry W. Wellford on the U.S. Court of Appeals for the Sixth Circuit and served as a Judicial Fellow at the U.S. Supreme Court under the chief justice during October Term 1993. Brown has also taught at Stetson, Illinois, Ohio State and Florida State. This commentary first appeared at jurist.org.