Prof. Rick Hasen on Too Many Dan Sullivans

From his post last night on Election Law Blog (Hasen is one of the top election law scholars in the country):

An NBC News report raises some serious First Amendment concerns for potentially prosecuting someone for having dishonest motives in running for office:

The federal investigation related to the dueling Republican Senate candidates in Alaska with the same name has entered a new phase.

A grand jury last week issued subpoenas to compel information from witnesses linked to the campaign of Dan J. Sullivan, a law enforcement official told NBC News.

The former schoolteacher who recently registered as a Republican is under investigation for potentially being part of a conspiracy to confuse voters and steal votes away from the incumbent, Dan S. Sullivan, who has been in office since 2015….

As to the potential charges, NBC reports:

The federal investigation is looking for possible wire fraud or a conspiracy to deprive Alaska voters of a free and fair elections process, which could be a civil rights violation, two people familiar with the probe previously told NBC News.

As I understand it, the core complaint here is that Dan J. Sullivan ran for office hoping to confuse voters into voting for him for U.S. Senate, and thereby helping the Democratic Senate candidate, Mary Peltola, win in Alaska’s top-four primary over Republican incumbent Dan S. Sullivan.

Now we cannot be sure what J.’s motivations are (see this NY Times report with lots of reasons but no ironclad evidence to think J. is actually running to help the Democrat). But let’s assume he’s running to help Peltola.

If J. ultimately is charged with violating the Ku Klux Klan Act (18 U.S.C. s 241), which punishes a conspiracy to “injure, oppress, threaten, or intimidate any person in any State … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States,” I think J. would have a very strong First Amendment defense (and likely for the wire fraud claims too, but I don’t know enough about what the basis for those charges might be)….

I don’t see how the government could criminalize his running for office for having impure motives. And if it could do so, then it could be a crime every time that the Republican Party backs a Green Party candidate, or Democrats support a MAGA candidate in a primary in the hopes that the candidate would be weaker against a Democrat in the general election….