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Donald Trump’s efforts to federalize the midterm elections have been largely unsuccessful. Most notably, in September, the Supreme Court stopped his efforts to use the Postal Service to exert federal control over the elections. That issue will likely crop back up for 2028, but, along with other Trump plans that have gone down to defeat, like his failed attempts to force Congress to pass the wildly unpopular SAVE Act, Trump hasn’t gotten the results he wanted. All along, pro-democracy lawyers, civil rights activists, and Democratic politicians have been making plans of their own to take the fight to Trump in court as he tries to execute Hail Mary efforts that make him look increasingly ridiculous.
One of the administration’s signature efforts is the lawsuit filed in California on October 15. We discussed it in detail here. DOJ wants to disenfranchise at least 20,000 California voters it thinks possibly, maybe, might be noncitizens. Some context from our initial discussion of the lawsuit is worth revisiting.
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The administration is seeking an injunction that would prevent “California from tabulating in federal elections vote-by-mail ballots received from individuals identified by the Federal Government as likely noncitizens until those individuals’ citizenship status can be verified.” The case is currently pending before a district judge in California, who has set a hearing in the matter for Tuesday, October 27. But Trump, apparently concerned that the judge may not be on his side, is attempting a premature appeal to the Ninth Circuit Court of Appeals. There is no order for him to appeal from, but he’s claiming that the appellate court should take jurisdiction because the trial judge’s failure to rule is a “constructive denial” of the administration’s request for an injunction. DOJ tried to impose a deadline for the judge to rule by, but he was apparently unimpressed by its effort to order him around in his own courtroom and set his own schedule, which was not unreasonable. Now, Trump wants the Ninth Circuit to enter an injunction to prevent California from counting ballots while the litigation moves forward.
The Court of Appeals ordered expedited briefing on whether the administration gets its injunction and set a hearing for Sunday. We’ll take a look at how it turned out Sunday night.
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Friday evening, DOJ attempted to up the ante, sending out letters to county election officials across California that contained thinly veiled threats of prosecution if they didn’t go along with the administration’s demands, including sequestering ballots from people DOJ suspects aren’t citizens. “Election officials across the state received letters from the agency saying if they fail to comply, they ‘risk significant federal scrutiny.’” The administration still hasn’t offered any evidence to back up its claim that noncitizens are registering and voting in large numbers in the state. According to The New York Times, “Critics and judges have said that the Trump administration has generated its lists of names from error-filled data, endangering the rights of eligible voters.” One county official, who declined to comply with the administration’s request, said, “It’s 11 days from Election Day, and this is just not in line with regular precedents.”
Last week, in a new lawsuit under Section 11(b) of the Voting Rights Act, Marc Elias, acting on behalf of the DSCC, DCCC, Democratic Governors Association, and the Nevada State Democratic Party, asked the federal courts to block the administration from threatening state and local election officials and ordering them to remove voters from the rolls or decline to count their ballots. The plaintiffs have asked for expedited discovery, but there is no indication of how quickly the court is prepared to move.
Some indication of just how sloppy the administration’s work in this matter is can be found in comments from two other officials: The registrar in rural Inyo County, which shares a border with Nevada, told the Times that the list she received had only two names on it. But neither of them had been issued a ballot, or for that matter, ever voted anywhere in California. You’d think that with only two names to check, DOJ could have gotten that right. And in Mendocino County, the registrar said the list she received didn’t even consist of voters in her county; it was the wrong list entirely.
Everyone can see through the administration’s last-minute blitz, which takes us to Alaska, where DOJ sued on Thursday to block certification of the Senate race if the Republican candidate, incumbent Senator Dan Sullivan, loses, pending an investigation. That’s because two Dan Sullivans are on the ballot. The administration has expressed concern that Alaska voters may become confused and wants to look into that possibility, but only if their guy loses. Remember, this is the state where Lisa Murkowski won as a write-in candidate, meaning voters had to actually know her name. One might conclude that concerns about the intelligence of Alaska voters are misplaced.
The lawsuit reeks of desperation, especially when you see how clearly the ballot differentiates between the candidates. Alaska’s courts have already ruled that both Sullivans could appear on the ballot. DOJ is trying to use a federal statute that speaks to voter registration to challenge a decision about what’s on Alaska’s ballots, an issue governed by state election law.
To be fair, there are legitimate concerns raised if the second Sullivan only entered the race to create confusion. But the time to challenge that was before Alaskans began voting. That has already happened and been resolved in the state’s courts. DOJ’s theory for asserting federal control here doesn’t pass the smell test. It sued under the National Voter Registration Act, but didn’t argue that the statute was violated; instead, it maintains that a “sham candidacy” undermines the purpose of the Act. That’s hardly a killer legal theory. The federal law, the NVRA, regulates voter registration, but it does not give the federal government control over which candidates are listed on a state’s ballot or how they are displayed. Those issues are governed by state law.
A post on the highly regarded Election Law Blog called DOJ’s legal argument “one of the worst ones I’ve ever seen.”
The DSCC and the Peltola campaign filed a motion with the court asking for permission to intervene in the case, saying they are not confident that the Alaska officials sued by DOJ will adequately resist the lawsuit. The American Civil Liberties Union, ACLU of Alaska, League of Women Voters of Alaska, and Common Cause have also asked for permission to intervene in the lawsuit.
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Donald Trump personally ordered the lawsuit. He told reporters, "I'm the one that said 'do it'" as he arrived in Florida with a grinning Ron DeSantis at his side. Todd Blanche offered a convoluted explanation on Twitter that only made it worse.
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All of this is happening as early voting is underway. NPR reports that the turnout is running ahead of both 2018 and 2022, with more than 21 million Americans already voting. And a federal judge in California has ordered DHS to stop intimidating American citizens who are legally entitled to vote during its door-knocking campaign, ostensibly designed to warn noncitizens that they cannot vote. Judge Araceli Martínez-Olguín in the Northern District of California barred DHS from conducting “elections-related field operations and field interviews” in nine states: California, Connecticut, Georgia, Missouri, Nevada, New York, Pennsylvania, Washington and Wisconsin, where DHS “knows, suspect[s], or should reasonably know” they are targeting U.S. citizens. The judge expressly distinguished unlawful intimidation from legitimate investigations into illegal voting, allowing the latter while enjoining the former. Judge Martínez-Olguín stayed her order until Friday to permit the administration to appeal before it went into effect. The docket sheet does not seem to reflect an appeal yet, but that could still happen.
That’s the legal landscape as we enter the last full week before the election. What many people fear the most is that Trump will try to create chaos on Election Day. Some of the worst fears center on the possibility he might use ICE agents to intimidate voters and interfere with the elections. But the courts are already on alert, given what they’ve seen in the last couple of weeks. And there is a mood of resolve across the country when you speak with voters. Any last-ditch efforts by Trump have the potential to anger people far more than they frighten them.
There are a number of cases in the works designed to challenge that type of intervention, including NAACP v. DHS, a lawsuit that was filed in September in federal court in the District of Columbia to seek an injunction against “deploying agents in a manner that unlawfully intimidates voters.” The complaint argues that the administration “has repeatedly sought to interfere with election systems and announced its readiness to unlawfully deploy law enforcement to voting sites.” Those lawsuits are already underway, giving courts an opportunity to act if the administration attempts to interfere with voting on Election Day.
The reality is that we are a big country. When we all vote together, we are too strong for Donald Trump. We get to decide who our elected officials will be. And if the theory DOJ is using in Alaska is an example of the best the Trump administration can muster, well, they’re just going to have to live with the will of the voters.
DOJ does not have general supervisory authority over state election certifications. A president cannot obtain an injunction simply because he dislikes the outcome of an election. DOJ can conduct civil litigation about how elections are managed, or it can sue to enforce the rights of disenfranchised voters. But it does not have the authority to block election certifications or to prevent people from voting. The Alaska case is a useful illustration: DOJ is asking a federal court to interfere with certification of the results if it doesn’t like the outcome of the election. But its reliance on a dubious theory about the intent of the NVRA, rather than any allegation of a violation of the law itself, shows how weak the federal government's legal basis for acting here is. Donald Trump can’t stop the elections from happening. We have more power than he does here.
Here’s a checklist for what you can be doing right now to make sure we have free and fair elections:
If you can vote early and you haven’t yet, plan a time to do it.
If you’re going to vote on Election Day, make sure you know where your polling place is located. Some locations may have changed. Confirm the hours at your polling place and the ID requirements.
Be prepared for long lines, delays, and other unexpected developments. Keep your cell phone handy, along with an Election Protection hotline number or website, so you can report anything unusual.
Remember to stay in line if the polls close while you’re waiting to vote—as long as you’re in line, you’re entitled to cast your ballot.
Share your plans with the people around you and make sure they have a plan too. Make a party out of it—breakfast together before you vote, a get-together to celebrate at the end of the day. It’s our democracy. Let’s vote to keep it.
Throughout this week, we’ll be speaking with the lawyers and others who are protecting the vote. We’ll stay up to date. Right now, the most important thing is to avoid the noise and stay focused on what matters: voting and making sure your vote gets counted. We’ll do that here.
The next ten days will test our democracy, and understanding what’s happening—and what we can do about it—has never been more important. If you rely on Civil Discourse to cut through the noise, explain the law, and help us stand together to protect our democracy, please become a paid subscriber if you aren’t one already. Your support keeps this work free and available to everyone, especially now, when it matters most.
We’re in this together,
Joyce
