A federal judge in Anchorage on Sunday threw out the Justice Department's lawsuit that aimed to keep Alaska from certifying its U.S. Senate race if Republican Sen. Dan Sullivan comes up short on Tuesday. The decision landed two days before Election Day in a contest that could help settle which party runs the Senate.

U.S. District Judge Sharon Gleason found in a 20-page order that the federal government never showed it had standing to sue. The department had argued that a second name on the ballot, retired Petersburg teacher Daniel J. Sullivan, could siphon off votes meant for the senator and hand the seat to Democrat Mary Peltola, a former congresswoman.

To test that theory the government asked that every ballot marked for Daniel J. Sullivan be pulled aside so law enforcement could look into what those voters intended. Gleason said it never explained how that could happen without exposing how individual Alaskans voted. Ordering it would plainly break their right to a secret ballot, she wrote.

Appeal filed within hours

The department filed notice the same day that it will take the fight to the 9th U.S. Circuit Court of Appeals. A spokesperson argued the judge ruled on procedural grounds and never rejected its claim that the second Sullivan entered the race as a frivolous candidate to mislead voters.

Gleason also refused to let the government rewrite its complaint again. Another try would be futile, she said, because no court can order ballots set apart for an unspecified federal probe of the people who cast them. She warned that late changes to election rules are strongly disfavored and could scare some voters away from the polls.

An appeal may not matter much. The case is moot if the senator wins or if Peltola's margin is bigger than the total won by Daniel J. Sullivan. A three-judge 9th Circuit panel turned down a similar federal bid against California election officials in late October.

Spoiler claims hang over the race

The suit was filed Oct. 22 after President Donald Trump said he ordered it. It was later expanded to cite a newspaper report that Peltola aides and the Democratic Senatorial Campaign Committee helped recruit the retired teacher as a spoiler. Peltola says she knew nothing about it. Her campaign called the case baseless and said Alaskans will pick their own senator.

Federal and state authorities have opened criminal investigations into how the second Sullivan joined the race but nobody has been charged. The senator said in a weekend television interview that he will accept the results whoever wins.

The ballot lists the incumbent as Dan S. Sullivan with the words incumbent and registered Republican beside his name while the other candidate appears only as Daniel J. Sullivan. Republican Gerald Heikes is the fourth name in the ranked-choice race. Close to 15% of registered Alaska voters had already cast ballots through Saturday.