EXPLAINER-Is it legal to recruit spoiler candidates in US elections?

The Justice Department ​is investigating allegations that Democrats recruited potential spoiler candidates to run in Alaska's US Senate race, ‌and has asked ​a US judge to prevent certification of the vote if incumbent Republican Senator Daniel S. Sullivan loses narrowly. The race, in which Democratic former US Representative Mary Peltola is challenging Sullivan, could prove critical for determining the balance of power in the Senate in the November 3 midterm elections. President Donald Trump's fellow Republicans are battling to maintain majorities in both chambers.

Below is an explanation of the legal issues at play and ‌why the Justice Department will face challenges in its civil lawsuit or any criminal case. WHAT IS THE STATE OF THE ALASKA RACE?

Alaska's ranked-choice ballot will feature Sullivan, Peltola, a retired teacher whose name is also Daniel Sullivan, and another long-shot candidate. Earlier this week, the New York Times reported that Peltola's aides worked with the campaign's lawyers and senior staff at Senate Democrats' campaign arm to recruit the retired teacher Daniel J. Sullivan. Reuters has not verified the report.

Trump has called for Peltola to be prosecuted, and Alaska's Republican Governor Mike Dunleavy has ordered a state law enforcement investigation. Neither Trump nor Dunleavy specified which laws they ‌believed may have been violated. A Justice Department official said no charging decision had been made. The Democratic Senatorial Campaign Committee has denied involvement and said Republicans had also propped up other candidates in an attempt to boost their own campaigns.

Daniel J. Sullivan has denied coordinating with ‌Peltola's campaign. Peltola's campaign did not respond to a request for comment. Its lawyers have asked US District Judge Sharon Gleason to dismiss the Justice Department's lawsuit, arguing the federal government lacks the legal authority to bring the case.

Alaska's ballot will indicate that Daniel S. Sullivan is the incumbent. COULD THE TIMES REPORT AFFECT THE OUTCOME OF THE DOJ LAWSUIT?

The Justice Department case seeking to prevent certification of election results if the incumbent Daniel S. Sullivan loses by a slim margin is pending. The department plans to seek a preliminary injunction, Michael Heyman, the top federal prosecutor in Alaska, told reporters on Friday. Alaska's elections regulator earlier this year blocked Daniel J. Sullivan from appearing on the ballot, finding that his candidacy was not filed in good ⁠faith and was ​instead an attempt to "confuse or mislead."

State courts later restored him to the ballot, ⁠ruling that there was not enough evidence that he was trying to confuse voters and that there was no requirement under Alaska law that a candidacy be in good faith. Legal experts have said the Justice Department's case is weak because the US Constitution clearly assigns the responsibility for administering elections to the states, not the federal government.

Joshua Douglas, a law professor ⁠at the University of Kentucky, said the reporting asserting that Democrats helped recruit spoiler candidates was unlikely to help the Justice Department's case. "Regardless of who encouraged him to run, the second Dan Sullivan validly qualified for the ballot. And this is a matter of state law," Douglas said.

Gleason's decision on Peltola's motion to dismiss the Justice Department's ​lawsuit could come as soon as Saturday, though it is not certain when she will rule. WHAT CRIMINAL LAWS COULD BE AT PLAY?

Legal experts said the Justice Department could seek to bring a criminal case under a federal statute that makes it illegal for ⁠any two people to conspire to deprive anyone of their constitutional rights, including the right to vote. The law, originally passed in 1871 to combat the Ku Klux Klan, makes it illegal to conspire to "injure, oppress, threaten, or intimidate any person" to prevent them from exercising a right.

In addition, if anyone lied under oath in earlier state-level litigation over whether Dan J. Sullivan could ⁠appear on ​the ballot, they could be prosecuted for perjury, UCLA law professor Rick Hasen wrote in an October 28 blog post. A Justice Department official said the conduct under investigation could implicate statutes prohibiting fraud, dishonesty, and deprivations of civil rights.

WOULD ANY PROSECUTION BE VIABLE? Hasen said any federal criminal prosecution under the conspiracy-against-rights statute would likely fail because the free speech guarantees in the First Amendment to the US Constitution would likely protect the right to run for office with "impure motives."

Michael Fragoso, a former lawyer for Republican Senator Mitch McConnell, said "dirty tricks" — such as one major party trying to help a ⁠fringe candidate win over voters from the other major party — were generally legal. But he said convincing voters they were voting for their preferred candidate when they were not was different. "It's suppressing disfavored votes by tricking voters into thinking that they're voting one way when in fact, ⁠they aren't," Fragoso, now a fellow at the Washington-based think tank Ethics and Public ⁠Policy Center, wrote in an October 28 blog post in the National Review.

IS THERE ANY LEGAL PRECEDENT? In a case brought by the Justice Department under Democratic President Joe Biden's administration, a social media influencer was convicted in 2023 in Brooklyn federal court of conspiring against civil rights by using social media posts to spread false information about the 2016 election to help Trump win.

The Manhattan-based 2nd US Circuit Court of Appeals in ‌2025 overturned that conviction, finding a lack of evidence ‌he conspired with anyone. The appeals court's decision did not address the influencer's argument that the First Amendment would protect speech deceiving voters.