Will Trump Illegally Disrupt the Blue Wave?

Despite Donald Trump’s efforts, the Postal Service is still delivering ballots, the Justice Department has not gained control of voter rolls, and dozens of other one-off schemes have failed. In major cases where state officials (including seven Republicans) resisted Justice Department demands for voter files, the administration’s score in court is 0 for 28. Only three Republican-led states (Alaska, South Carolina, and Texas) have voluntarily signed agreements to allow the Justice Department to review their voter files for supposedly ineligible names.

This is unlikely to make much difference in practice, since Trump’s story about large numbers of illegal voters is a myth. DHS Secretary Markwayne Mullin claimed that 15,903 noncitizens were on the voter rolls in Nevada. The number was dropped to 185. Nevada officials found that all were in fact U.S. citizens.

For months, state attorneys general and secretaries of state and a large coalition of pro-democracy groups like the Brennan Center, Protect Democracy, and several others have been doing simulation exercises anticipating every possible ploy. The best news is that with a few exceptions, Trump and company keep losing in court. Most judges, even Republican ones, are disgusted with Trump’s crude schemes.

Yesterday, Chief Judge Michael Boasberg of the U.S. District Court for the District of Columbia gave the Justice Department until noon today to either provide details of its demands to states for voter information and actions to purge rolls, or withdraw such demands.

In California, where the administration has tried to force officials to set aside 20,000 ballots, claiming that those casting them might not be citizens, U.S. District Judge David O. Carter blocked the demand, ruling that the Trump administration is engaging in “a broad, ongoing pattern of attempted election interference.” The administration has appealed and is likely to lose.

Even less likely is some sort of coup based in a declaration of emergency, which has no basis in law. Neither ICE nor the FBI nor the military is going to step in and halt the election.

However, other risks are real. According to conversations I’ve had with pro-democracy groups and current and former state officials, the risks include these:

Intimidation. Federal prosecutors, ICE and DHS agents, and local MAGA-aligned vigilante groups will try to intimidate both local election workers and voters. Enforcement actions against alleged illegal immigrants can become a pretext for more general election disruption.

Trump has said that he is ordering 1,000 federal officials into the field to monitor voting. That sounds like a lot, but it is only 20 per state.

Judges can put a stop to intimidation by issuing injunctions. Citizens can counter it by turning out in larger numbers. The pro-democracy legal groups have prepared and disseminated “shell pleadings” so that citizens can immediately go into court and get injunctions against these intrusions. Even so, some disruption will occur, especially in Republican-governed and far-right counties.

“We have worked to make sure local counties have access to counsel quickly,” Ian Bassin of Protect Democracy told me. “And if they don’t want to move to protect their voters, we and our partners have set up infrastructure to bring suit on behalf of voters. Some of that could come preemptively.”

The administration has repeatedly threatened prosecution of local and state election officials after the fact, if anyone in their jurisdiction is found to have voted illegally. These prosecutions would be tossed out in court but are nonetheless intimidating. On Thursday, federal prosecutors sent subpoenas to state and local officials in a criminal probe into supposed illegal voting.

The New Yorker recently published a detailed piece on the multiple threats, both by the Justice Department and by local vigilantes, against Utah’s lieutenant governor, Deidre Henderson, a Republican who resists administration demands. “I’ve had to have counselling just to function, to deal with the burden of fear that comes from the threats I’ve been getting,” Henderson said.

Seizure of ballots or voting machines. This is the most alarming scenario. Last January, Kurt Olsen, an election denier who was appointed White House director of election security, requested the FBI to seize ballot boxes and other records from the 2020 election in Fulton County, Georgia. Some 650 ballot boxes, tabulator tapes, and related materials were seized. The purpose was to rehash Trump’s old bogus charges that thousands of people in Georgia had voted illegally.

Fulton County sued to get the records back, but in May a federal judge ruled that the Justice Department could keep them. The Justice Department requested the names and contact information of every election worker involved in Fulton County’s 2020 election operation—including poll workers and employees. A different federal district court judge ruled that this was an illegal fishing expedition.

The concern is that the Fulton County raid was not just Trump’s effort to relitigate 2020, but a dry run for a much broader Election Day effort to seize ballot boxes. If pro-democracy groups can demonstrate that such a plan is in the works, they can get an injunction to prevent it. If seizures are done episodically, the practical question is whether courts can intervene in time. In most states, there are now backup records, but widespread seizure of ballot boxes or voting machines could delay the count and leave the outcome in doubt.

Voter suppression. This is a variation of what has occurred in past elections in red states. Reduced numbers of polling places, especially in areas that support Democrats, deliberate confusion about where a citizen is allowed to vote, tilted ID requirements (e.g., gun permits accepted but not student IDs), and barriers to registration are all part of the Republican playbook.

A survey of over 48,000 adults by the Shorenstein Center at Harvard released on October 29 found that Texas led the country in creating gratuitous obstacles to registration. Ten percent of Texas potential voters reported conflicting registration information; about 4 percent reported a registration challenge or removal notice. Black and Hispanic voters were disproportionately targeted.

In a very close election, suppression tactics would alter the outcome. But in 2018, the blue wave was sufficient to flip 41 House seats despite similar suppression efforts. Polls suggest an even more decisive wave next Tuesday. And in the more than 30 states governed by Democrats or where election officials are non-MAGA Republicans, there is no such suppression.

One other scenario is for states controlled by Republican governors to refuse to certify election results. In very close elections, where recounts are authorized by law, this is legitimate. If governors tried to extend that tactic to other elections on the false premise of illegal voting, that would be overturned by courts, though it would result in some delay.

An even more far-fetched worry is a January 3 coup in which lame-duck House Speaker Mike Johnson would fire the nonpartisan clerk of the House and replace him with a partisan hack who would then refuse to certify dozens of results. But that would require a majority of the outgoing House to go along, and there are sufficient anti-MAGA Republicans to block that maneuver.

Trump’s multiple schemes will cost some citizens their right to vote and may even cost Democrats a few seats. They are unlikely to hold back the larger blue wave.