Yes, the Alaska “Decoy Dan” Scheme Can Be Prosecuted: 18 U.S.C. § 241
Will Chamberlain
Article 3 Project
October 29, 2026
Introduction
By now everyone is familiar with the Alaska Senate conspiracy out of Mary Peltola’s campaign: the attempt to place a copycat Dan Sullivan on the ballot. The New York Times reported it on October 28, and since then I’ve seen many people, including right-wing commentators, say some version of “While this conduct was unethical and disgusting, it wasn’t illegal.”
What’s interesting is that most of them say this without doing any legal analysis at all. It’s pretty clear they haven’t read the relevant statutes or the relevant case law. That’s where this lawsplainer comes in. At a minimum, there is a very serious and colorable charge against everybody involved in this conspiracy: 18 U.S.C. § 241, conspiracy against rights.
The potential defendants include, at a minimum:
- Jerid Kurtz, the primary operative who recruited the fake Dan Sullivan to run against the real one;
- Daniel J. Sullivan Jr., the fake candidate himself;
- Anton McParland, Peltola’s chief of staff when the conspiracy was hatched; and
- the other top Peltola campaign aides who ordered the search for every Dan Sullivan in the state of Alaska.
Mary Peltola herself is also alleged to have been made aware of her subordinates’ project to find another Dan Sullivan. If discovery reveals that she agreed to be part of the conspiracy, she too could be charged.All of this is reported in depth in the New York Times article.
The Law
Here is the text of 18 U.S.C. § 241:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States … [t]hey shall be fined under this title or imprisoned not more than ten years, or both.
Let’s go through the elements and see who may have violated this law and how.
Element One: An Agreement Between Two or More People
The first element is an agreement between two or more people. The New York Times reporting shows a widespread agreement here. Mr. Kurtz, Mr. Sullivan (the fake Sullivan), Mr. McParland, and the top campaign aides who ordered the search for Dan Sullivans were all involved in the conspiracy, and others may have been as well. The Times reported that Mary Peltola, the Senate candidate herself, was “definitely aware” of what was going on. Discovery might well reveal that she had explicit knowledge of the plan or actually authorized it.
Element Two: An Unlawful Purpose, to “Injure”
The second element is an unlawful purpose. Under the statute, the purpose of the agreement must be to “injure, oppress, threaten, or intimidate.” In the context of the constitutional right to vote, the word that matters is “injure.”
The Department of Justice and the federal courts have interpreted injury not to require any physical act or harm. You can be injured by being defrauded or tricked, or by having your right taken from you without any violence at all. Prosecutions for ballot-box stuffing, for example, have survived motions to dismiss. In United States v. Saylor, 322 U.S. 385 (1944), the trial court threw out the indictments of election officials charged with stuffing a ballot box, and the Supreme Court reversed, holding that ballot stuffing injures the constitutional right to have your vote honestly counted.
So the question is this: can you injure someone in their constitutional right to vote by deceiving them about which candidate they are actually voting for, that is, by trying to trick them into voting for the wrong candidate when they intend to vote for someone else? The statute and the case law say yes.
The most analogous case is United States v. Stone, 188 F. 836 (D. Md. 1911). It’s a very old case, but it was cited recently in United States v. Mackey, which was decided at the district court level in 2023. Mackey is the closest modern analogue, and like the operatives here, Douglass Mackey was a private actor, not an election official. In Stone, county election supervisors in Maryland were alleged to have “printed and folded the official ballots in such form that any voter could easily vote for the Democratic candidate,” while making it “difficult for any of the illiterate negro voters to vote for the Republican candidate.” Id. at 838. The court held that this was sufficient to allege an injury under the predecessor statute to § 241. Id. at 840, 842. It said: “Unlawfully to deprive a citizen of the United States of his right to vote at a congressional election is to injure him in any ordinary use of the word ‘injure.'” Id. at 840. Mackey’s conviction, of course, was reversed by the 2nd Circuit, but on the grounds that there was no evidence he entered into any kind of conspiracy or agreement, not that there wasn’t a cognizable injury.
The right at issue is best understood as the constitutional right to vote for the candidate of your choice. Trickery, deception, and fraud carried out through the mechanics of voting, including how the ballot itself appears or is printed, are sufficient to allege an injury to that right.
Based on the New York Times’ reporting, that was clearly the purpose of this conspiracy: to rig the ballot so there would be two Dan Sullivans on it, and so that voters who wanted to vote for the incumbent Republican senator would be deceived into voting for somebody else.
Element Three: A Federal Right Secured by the Constitution
The next element requires a federal right secured by the Constitution. The right to vote is plainly secured by the Constitution. As the Supreme Court put it, “Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted at Congressional elections.” United States v. Classic, 313 U.S. 299, 315 (1941). And there is a large body of § 241 case law involving attempts to interfere with it.
The most obvious examples are conspiracies to murder someone to keep him from voting, or to beat people up to scare them away from the polls. Those are all conspiracies against rights, but § 241 conspiracies don’t have to involve violence. District courts have read injury broadly enough to reach deception through the mechanics of voting. See United States v. Mackey, No. 21-cr-80, ECF No. 54 at 30, 38 (E.D.N.Y. Jan. 23, 2023), rev’d on other grounds, No. 23-7577 (2d Cir. July 9, 2025); United States v. Stone, 188 F. 836, 840, 842 (D. Md. 1911).
Element Four: Specific Intent
Finally, there has to be specific intent. Each defendant must have knowingly joined the agreement intending to interfere with the right. “A specific intent to interfere with the federal right must be proved.” United States v. Guest, 383 U.S. 745, 760 (1966).
Before the New York Times article, this would have been extremely difficult to prove. But the article includes details from the account of former campaign manager Elisa Rios and from text messages the Times obtained. Those messages contain statements showing that the participants knew what the plan was.
In one text exchange, Peltola advisers watching a focus group of potential voters surmised the participants would be susceptible to being tricked into voting for a ballot spoiler. And when the Division of Elections asked Sullivan Jr. how his name should appear, he first answered “Dan S. Sullivan,” even though S is not his middle initial. (It’s the real senator’s.)
There is already a lot of evidence in the public domain showing that the various participants intended to deceive voters. That is sufficient to prove a violation of the statute.
The Objections
Now let’s handle some of the common objections from reporters and others trying to suggest that nothing unlawful happened here.
1. “Ballot stacking happens all the time.”
The first common objection is that ballot stacking happens all the time and is simply a feature of Alaska election law. Ballot stacking means inducing candidates to get on the ballot in order to siphon votes from other candidates. When you add genuine candidates to the ballot, people who vote for them do so of their own free will. That’s what they walked into the voting booth to do, and there’s no deception in the actual mechanism of voting.
Again, the right, properly understood, is the right to cast a ballot for the candidate of one’s choice. If people choose a different candidate, nothing is wrong.
This case is completely different. The conspiracy here was to put two Dan Sullivans on the ballot and deceive people about whom they were voting for, about the literal identity of the people on the ballot. A voter who walks into the booth intending to vote for incumbent Senator Dan Sullivan, and who physically tries to vote for incumbent Senator Dan Sullivan, might be tricked into voting for somebody else. That was the conspirators’ intention. So the “ballot stacking happens all the time” argument doesn’t work.
2. “Voters won’t actually be deceived.”
The second argument I see is that voters won’t actually be deceived. The idea is that the final printed ballot distinguishes the two Dan Sullivans, listing the real one as the Republican incumbent, so voters won’t be confused and there’s no violation.
But the statute doesn’t ask whether anybody was actually deceived. It asks whether there was a conspiracy to deceive them. The gravamen of the crime is the agreement. As the Supreme Court said of § 241, “the gravamen of the offense is conspiracy.” Guest, 383 U.S. at 753. Nobody has to actually cast a mistaken vote. Section 241 doesn’t even require an overt act. As the Mackey court noted, “several circuits have held that there is no overt act required for a Section 241 conspiracy.” United States v. Mackey, No. 21-cr-80, ECF No. 54 at 13 (E.D.N.Y. Jan. 23, 2023). The First Circuit put it plainly: “18 U.S.C. § 241, the civil rights conspiracy statute, does not require an overt act.” United States v. Crochiere, 129 F.3d 233, 234 (1st Cir. 1997). The circuits are split on this. As Crochiere notes, the Fifth Circuit has stated both that § 241 requires an overt act and that it does not, and the Sixth Circuit has said in dictum that it does. Id. at 237. And the Justice Department is already treating this as a § 241 matter. CBS News reported on October 29
that a DOJ official identified §§ 241 and 242 as “potential roads for prosecutorial action,” while acknowledging that the department “was not aware of any confirmed instances in which an Alaska voter had mistakenly cast a ballot for the wrong Dan Sullivan.” The question is whether there was a conspiracy to deceive, and whether anyone was ultimately fooled simply doesn’t matter.
As a side note, as Greg Gutfeld pointed out on The Five Tonight this is a very aggressive argument coming from Democrats who, in other contexts, insist that voter ID requirements are unacceptable because some people might not be able to get an ID. I think it’s far more likely that people will be deceived by two Dan Sullivans on a ballot. Confusing two identical names is a much easier mistake than failing to get an ID.
3. “The Alaska Supreme Court said this was fine.”
The third argument is that because the Alaska Supreme Court refused to remove the fake Sullivan from the ballot, there can be no conspiracy against rights. But following state law doesn’t make you immune from the consequences of violating federal law. In Classic and Saylor, the defendants were state election officials acting under state election law, and the Supreme Court held they could still be prosecuted for conspiring against federal voting rights. And when federal and state election law conflict, federal law wins. Whether Alaska law allowed the fake Sullivan onto the ballot is a different question from whether a conspiracy to put him there to deceive voters violates federal law.
4. “This criminalizes speech.”
Another argument is that prosecuting this would violate the First Amendment, criminalizing speech the way critics say Mackey’s speech was criminalized. The key point is that what’s being criminalized here is an unlawful agreement. This is a long-standing principle of American law: you can criminalize unlawful agreements. Otherwise you could never prosecute a conspiracy case. “[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949). The district court in Mackey said exactly this when it rejected his First Amendment defense: “This case is about conspiracy and injury, not speech.” United States v. Mackey, No. 21-cr-80, ECF No. 54 at 39 (E.D.N.Y. Jan. 23, 2023).
5. “The source retracted.”
Finally, and most bizarrely, some people suggest that because the source for the New York Times article retracted her claims, no viable case can be brought. That’s wrong. She can be subpoenaed to testify before a grand jury, and her documents can be obtained. If she now wants to say none of it happened, she would have to say so under oath and under penalty of perjury.
Conclusion
There’s a colorable prosecution here and anybody who tells you otherwise hasn’t read the cases. There are some key questions about charging 18 U.S.C. § 241 in these circumstances that have never been answered by appellate courts, and so I wouldn’t say this is an open-and-shut case. But people, and especially non-lawyers, should stop asserting that the conduct alleged by the New York Times article is flatly lawful. There’s just no basis to say that.
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