Courts are weighing Trump’s ‘preemptive election interference’ as Election Day nears

Less than a week before Election Day, President Donald Trump’s unprecedented drive for power over elections has set the stage for a series of courtroom fights that could quickly lead to a high-stakes showdown at the U.S. Supreme Court over the limits of federal authority.

Democrats and voting rights advocates have long feared Trump would attempt to interfere in the midterm elections, especially if Republicans appear poised to lose control of Congress. With early voting well underway across much of the country, they say those concerns are being confirmed as the Trump administration rushes forward a last-minute legal campaign to pressure election officials in a growing number of states.

The U.S. Department of Justice over the past two weeks has sued Alaska and California, seeking extraordinary federal intervention in their elections. Signs suggest the legal campaign might expand: On Monday the DOJ demanded election officials in Washington pull aside ballots of 400 alleged noncitizens. The department made a similar ask for 20,000 people in California before suing that state..

“I think we should be prepared to see suits like this anywhere where there’s a close election, especially in an election that could determine control of the House or Senate,” said Shelby Wayment, staff attorney at the Safeguarding Democracy Project at the University of California, Los Angeles.

States administer elections under the U.S. Constitution, with only Congress holding the power to override state-level rules and regulations. But Trump has sought to bend that constitutional guarantee to the breaking point, legal experts on elections say.

The Justice Department is claiming a federal criminal law against noncitizen voting entitles the agency to demand California and Washington election officials not count ballots.

In Alaska, the Justice Department preemptively sued to block state officials from certifying the results of the U.S. Senate election if Republican Sen. Dan Sullivan loses to Democrat Mary Peltola by a margin that’s less than the number of votes cast for an alleged spoiler candidate of the same name, Dan J. Sullivan. Trump has said the DOJ acted at his direction.

Groundwork to challenge results?

The Justice Department is engaged in “preemptive election interference,” Steve Vladeck, a leading expert on federal courts and a professor at Georgetown University Law Center, wrote online. While he expressed confidence that the federal courts, including the Supreme Court, won’t endorse the DOJ’s “nonsense,” he voiced concern that the lawsuits will eventually stop seeming extraordinary.

“Preemptive election interference is a prelude,” Vladeck wrote. “Its whole point is to have the theories and the filings in place — and the specter of mischief in the air — before the counting starts so that the results can be attacked if, but only if, they don’t come out the ‘right’ way.”

All of it comes as Trump stares down the prospect of political defeat in the midterm elections. If Democrats retake the House or Senate, they will likely launch a series of investigations into the president and members of his administration that could bog down his final two years in office.

Asked Tuesday if he will respect the results of the midterms, Trump told reporters, “I will if they’re honest.”

Trump has laid groundwork to attempt to discredit unfavorable results, writing on Truth Social on Monday that the federal government would be closely watching the race for U.S. Senate in Minnesota. Republican Michele Tafoya, a former broadcast journalist, faces Lt. Gov. Peggy Flanagan, a Democrat.

“The only way she can lose is if they cheat by playing games with the Ballots as they come in,” Trump wrote of Tafoya.

Courtroom losses

Previous efforts by the Trump administration to influence elections this year have largely failed. The Supreme Court blocked proposed restrictions on mail ballots, and federal courts across the country have blocked the Justice Department’s attempts to obtain state voter rolls that contain sensitive personal information, such as driver’s license and Social Security numbers.

Democrats and voting rights experts anticipate that federal courts will also block the latest round of legal action from the Trump administration. Sen. Alex Padilla, a California Democrat, emphasized in a statement that the Trump administration doesn’t have the authority to interfere in his state’s elections.

“The Trump administration is afraid and desperate. Their attempts to take over our elections will fail,” Padilla said.

The Trump administration has long said identifying and removing noncitizen voters is a top priority, though studies have consistently shown noncitizen voting rarely occurs. For instance, even if all 20,000 individuals on the DOJ list are noncitizens, it would represent only about 0.08% of the nearly 23.2 million registered voters in California. 

Still, the Justice Department has stepped up arrests of alleged noncitizen voters in recent weeks as part of a heavily publicized campaign it calls “Operation Protect the Vote.”

“Enforcing federal law increases the integrity of elections. It increases confidence in elections,” acting U.S. Deputy Attorney General Trent McCotter said at a recent news conference.

The Trump administration’s new plan to assert authority over vote counting in California suffered its first courtroom loss on Monday, when a three-judge panel of the 9th U.S. Circuit Court of Appeals declined to grant the DOJ’s request for an emergency order requiring state and local officials to segregate the ballots of voters on the list of 20,000.

In a 2-1 decision, the panel dismissed the appeal on procedural grounds. The judges ruled the court didn’t have jurisdiction over the case because the Justice Department didn’t give a district court judge sufficient time to weigh the request.

Emergency of the administration’s making

The Justice Department filed the lawsuit in mid-October, despite the Trump administration initially saying this summer it had identified more than 190,000 possible noncitizen voters in California. DOJ lawyers then waited several days before seeking an emergency order, and then asked the judge to rule on their request in less than a day.

“This timing challenge is entirely of the federal government’s own doing. And it understandably leads skeptics to believe that this isn’t about improving California vote rolls, but is an attempt to cause confusion and discredit the impending election,” Stephen Richer, a legal fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies, said in a statement.

The case could quickly be back before the 9th Circuit. The district court judge in the case, Judge David Carter, an appointee of President Bill Clinton, held a hearing Tuesday and said he would rule Wednesday. His decision is almost certain to be appealed, regardless of what he decides — first to the 9th Circuit and then, potentially, to the Supreme Court.

The Justice Department would likely again encounter skepticism from the 9th Circuit.

Appellate Judge Mark Bennett, a Trump appointee, wrote in a concurring opinion Monday that he would also deny the Justice Department’s request on the merits. The Trump administration offers “no workable plan” for how California would set aside ballots and he noted that the evidence that individuals on the list are actually noncitizens is contested.

“Courts tend to frown upon people creating their own emergencies and then saying, ‘Hey, look, we’re in an emergency,’” said Aaron Blacksberg, federal policy counsel at the nonpartisan Institute for Responsive Government.

Speedy resolution in Alaska 

In Alaska, the Justice Department’s lawsuit may move quickly — because Democrats and voting rights groups want a quick resolution.

Peltola’s campaign and the Democratic Senatorial Campaign Committee, the main campaign operation of Senate Democrats, have filed an emergency motion seeking a fast dismissal of the case. Lawyers for Alaska’s election officials are also asking a judge to rule by Monday, prior to Election Day.

“This lawsuit and this requested relief cast a cloud over Alaska’s election that is contrary to the public interest and that the Court should not allow to linger,” Margaret Paton Walsh, an assistant Alaska attorney general, wrote in a Monday court filing.

U.S. District Court Judge Sharon Gleason, an appointee of President Barack Obama in Alaska, has ordered briefs in the lawsuit to be filed on an accelerated timeline over the next few days — a sign she plans to rule quickly.

Keeping status quo

Whatever cases may reach the Supreme Court, the justices are generally reluctant to authorize dramatic changes to elections close to Election Day. 

Over time, the justices have adopted a doctrine called the Purcell principle, which advises against major changes to election policy and practice just before an election because voters could get confused. 

The Supreme Court’s conservative majority has faced accusations that it applies Purcell unevenly. This spring the high court effectively paved the way for Republican-controlled Southern states to eliminate majority-Black congressional districts after it severely weakened the federal Voting Rights Act.

Justice Brett Kavanaugh, a conservative, has drawn a distinction between federal courts ordering last-minute changes to elections and states making changes themselves. In September, the Supreme Court three times refused to overturn a Missouri Supreme Court decision that blocked the use of a gerrymandered congressional map drawn to aid Republicans.

The court’s unsigned opinion in the Missouri case offers hints about what could lie ahead for a case challenging the Justice Department’s demands of California, where voters have been sending in mail ballots for weeks.

“The Purcell principle applies with even greater force here. The election is not merely upcoming; it has already started,” the opinion says.

In the Missouri case, the Supreme Court took a strong stand against chaos, Blacksberg said.

“My hope is we’ll see an emerging theme of erring on the side of stability when there is a close question and also pro-light touch from the federal government,” Blacksburg said.