DOJ faces heavy lift in Alaska election appeal as separate criminal probe continues

The Justice Department faces an uphill legal battle in its bid to overturn a federal judge's dismissal of its Alaska Senate election lawsuit, according to legal experts who questioned whether the government can secure meaningful relief before voting ends Tuesday — even as a separate criminal investigation continues.

DOJ filed a notice of appeal after Obama-appointed U.S. District Judge Sharon Gleason dismissed its lawsuit Sunday over the presence of two candidates named Dan Sullivan on Alaska's Senate ballot. The judge ruled that federal officials lacked standing because they had not demonstrated how their proposed remedy could address potential voter confusion without compromising ballot secrecy.

With voting ending Tuesday, attorneys told Fox News Digital that even a successful appeal could leave the government scrambling to obtain an injunction or return to district court, while a defeat would leave the civil case dismissed without necessarily affecting potential criminal charges arising from the alleged recruitment of the second Sullivan.

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"The federal judge dismissed on a procedural issue — standing," election attorney Jason Torchinsky of Virginia-based firm Holtzman Vogel told Fox News Digital. "So if the government were to prevail, it would either have to seek injunctive relief from the appeals court in the first instance, a very high bar, or go back down to the district court to seek relief."

"Given the time available between now and close of polls [Tuesday], this is a heavy lift for the government," Torchinsky added.

A reversal would not automatically change Alaska's election results. DOJ would still need to obtain specific judicial relief, potentially requiring further proceedings in district court.

Former federal prosecutor and ex-Pentagon official Cully Stimson similarly said that DOJ will have difficulty securing any immediate relief in its effort to pause the Sullivan-Peltola contest.

While Gleason was appointed by Obama, Stimson suggested the ruling did not appear partisan and said uncertainty remains because voting had not yet concluded.

"I'm not surprised that the judge did this. I don't think it would matter whether an Obama judge or any other judge appointed by any other president," Stimson told Fox News Digital.

"Asking for injunctive relief way before anything even happens is a reach," he said, adding Alaska falls under the San Francisco-based Ninth Circuit, which will hear any appeal.

But Stimson suggested DOJ may have a longer-term objective beyond winning an immediate injunction: establishing a legal record that could support further proceedings after the election, once the votes are counted.

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"They may be filing these suits to establish a record and force Alaska and others supporting the status quo to defend what's happening, knowing that there's some level of confusion, and they have the legal wheels churning," he said. "So after the vote is [over], they've started the legal wheels rolling."

Former Assistant U.S. Attorney for North Florida Zack Smith added that if the Ninth Circuit does not hear the case promptly, DOJ could seek emergency review from the U.S. Supreme Court.

While the Alaska case is considered unprecedented, according to the experts,