How Trump
and his allies seek to interfere in the US midterm elections
After the
January 6 attacks, experts are not dismissing the possibility of anything.
Illustration: Ben Denzer/The Guardian
The
administration’s efforts have raised concerns among experts about potential
disruptions after election day
Sat 31
Oct 2026 15.00 CET
Donald
Trump is waging a brazen effort to interfere with voting in this year’s midterm
elections, escalating concerns that the federal government will try to slow
down certification of election results – a strategy that could create chaos
when the new Congress is seated next year.
Experts
are certain the administration’s efforts to subvert America’s elections will
not work. And some have bemoaned “fearmongering”
about far-fetched scenarios that are unlikely to go anywhere in court.
But after
the attack on the Capitol on January 6, 2021, voting lawyers and other
democracy groups aren’t dismissing the possibility of anything.
The
potential for interference is related to how close the contest winds up being,
said Ned Foley, a professor at the Ohio State University and an expert on
disputed elections.
“The more
it looks like a blowout or a ‘blue tsunami’, the harder it’s going to be for
any attempt to make mischief to get any traction,” he said.
“I put
the probability of these impactful nightmare scenarios materializing at under
50%, so I’m not expecting them to make a difference,” he added. But, he said
there are “risks of weird things happening, and you need to pay attention to
them even if the risk is rather low”.
The Trump
administration’s efforts to interfere began last year with an effort to collect
detailed voter roll information from nearly every state. And it has continued
into the final days of the election, in which the government has sought to
sequester ballots in California and filed a legally thin lawsuit to try to stop
the certification of election results in Alaska, where there is a hotly
contested US Senate race.
The US
constitution gives the states, not the federal government, authority to run
elections. And it gives the president no power when it comes to voting.
“The type
of conduct we have seen from the administration right now is unlike anything we
have ever seen as far as federal attempts to interfere with the elections,”
said Danielle Lang, a voting rights attorney at the Campaign Legal Center, a
watchdog group. “It’s amounting to relatively little because the federal
government is just not in charge of the levers of election administration and
it can’t force itself to be involved in those levers of election administration.”
Here are some of the main ways Trump and his allies have sought to interfere with the election process – or could.
Using
emergency power
Some of
Trump’s allies on the right have encouraged him to invoke
emergency powers to exert influence over elections, including potentially
seizing voting equipment and sending troops to the polls. Trump has
refused to rule out such ideas.
The move would
be illegal – the president has no power, emergency or otherwise, over
elections. Courts would likely quickly step in and stop such efforts.
But even
if courts do step in to prevent things like ballot seizures, it could still
cause chaos, confusion, and delay in a post-election period where there is
uncertainty about the election results.
Stopping
certification
The Trump
administration’s most aggressive judicial effort to interfere in the election
so far has come in Alaska, where it has taken the extraordinary step of asking
a federal court to step in before election day and block certification if the
Republican candidate loses.
Alaska
has an extremely competitive US senate race this year between Republican Dan S
Sullivan and Democrat Mary Peltola, and the outcome could determine which party
controls the chamber. In a complicated twist, there is also a Dan J Sullivan on
the ballot. The Alaska supreme court allowed
Dan J Sullivan to stay on the ballot earlier this year in response to a
ruling from the Alaska division of elections disqualifying
him.
Donald
Trump watches as US Senator Dan Sullivan speaking during a campaign rally at
Curtis D Menard Memorial Sports center in Wasilla, Alaska, on 13 October.
Photograph: Kent Nishimura/AFP/Getty Images
On 23
October, the justice department sued
Alaska and asked a judge to block certification “pending an investigation
to determine whether votes cast for Daniel J. Sullivan were meant to be cast
for Senator Sullivan”. It’s unclear how such an investigation would take place
after an election, since U.S. voters cast their ballots secretly. Trump said he
ordered the justice department to file the lawsuit.
The saga
got more complicated days
later when the New York Times reported that operatives aligned with Peltola
were behind the effort to get Dan J Sullivan on the ballot as part of an effort
to siphon votes away from the Republican candidate. Democrats had denied being
behind the effort. Trump reacted angrily to the report. “Mary Peltola should
suffer the Legal and Political consequences for what she has done, A FRAUD ON
THE AMERICAN PUBLIC, and Dan Sullivan should be allowed to run without either
Mary Peltola or FAKE Dan Sullivan on the Ballot,” he wrote on Truth Social.
The
justice department’s legal argument for stopping certification is also
extremely thin. In its lawsuit, the justice department pointed to broad
language in the preamble to the 1993 National Voter Registration Act that says
one of the purposes of the law is to “protect the integrity of the electoral
process”. Election experts have said it is not possible to hang a legal case on
such vague language.
The
justice department knows it is going to lose the Alaska lawsuit, but may have
another goal in mind, Richard Pildes, an election law scholar at New York
University, wrote in a blog post.
“Even if
DOJ loses in the federal courts, as it will, the litigation will give
ammunition to anyone in the certification process, particularly the Lt. Gov.,
who might seek to delay or deny certification to the Democrat, Mary Peltola, if
she wins, based on the claim that voters who voted for Daniel J. Sullivan (and
perhaps ranked no other candidate) meant to vote for in the incumbent
Republican Senator, Daniel S. Sullivan,” he
wrote. In Alaska, the governor and Lt. Gov sign the certificate for the
winning candidate that is sent to the US Senate.
Senate
candidates James Talarico And Ken Paxton on the first day of early voting on 19
October. Photograph: Bloomberg/Getty Images
Noncitizen
voting
A key
element of the Trump administration’s efforts to interfere in the election is a
push to create the false impression that there are large numbers of noncitizens
on the rolls who are voting – and perhaps to use that argument to mount
post-election legal challenges. Studies have
shown that noncitizen voting is exceedingly rare and that when it does
occur, it is because of confusion.
The
administration’s push to find noncitizen voters began last year, when the
justice department filed lawsuits across the country seeking to have states
turn over their voter rolls – each state is in charge of its own list of
registered voters and there is no single federal voter database in the United
States. In an extraordinary rebuke, more than two dozen
different federal judges – including some appointed by Trump – rejected the
requests from the government, saying they were unlawful.
Unable to
get voter lists directly from the states, the Department of Homeland Security
obtained public voter roll information and began running it against its own
records to hunt for noncitizens. It has not been transparent about its
methodology, and many experts have been skeptical
of its accuracy.
On 13
October, the justice department delivered a USB drive with a password written
on a Post-it note to election officials in Los Angeles county purporting to
contain the names of 20,000 noncitizens on the voter rolls (there are more
than 23 million registered voters in California). It gave the state 48
hours to review the names and sequester ballots cast by anyone whose
citizenship had not been confirmed.
The state
refused, citing concerns about cybersecurity and the administration’s
methodology. On 15 October, the justice department sued California, asking a
judge to order the state to sequester the ballots. As the justice department
pushed the claims, they also announced the arrest of 28 noncitizens who
allegedly had voted at one point in the state. US district judge David O Carter
ruled
against the justice department on Wednesday. The government is appealing
that decision.
On 26
October, the justice department made a similar demand in Washington state,
asking election officials to investigate the citizenship of 400 voters and
sequester ballots for those whose citizenship it could not confirm.
The
justice department has also threatened to prosecute election officials who
process ballots from noncitizens.
Despite
the aggressive approach from the justice department, there’s reason to be
skeptical of their list in California. When local election officials sampled
200 names from the list they provided, they found many of them had already been
canceled. Election officials also said a “high percentage” of those flagged
appeared to be born in the United States. Washington secretary of state Steve
Hobbs, a Democrat, responded to the justice department on Wednesday, saying it
believed the list the government provided was
inaccurate.
While the
justice department’s efforts to get ballots segregated before the election are
unlikely to succeed, they could offer a pretext for a post-election effort to
challenge the results.
Hundreds
of Donald Trump supporters gathered in the state capital of Pennsylvania to
display their anger at the outcome of the election hours after the state was
called for Joe Biden on 7 November 2020 in Harrisburg, Pennsylvania.
Photograph: Spencer Platt/Getty Images
“There
will be an argument – I can almost guarantee it – that a bunch of ballots in
California should be thrown out because they didn’t segregate them,” said Ben
Berwick, an election lawyer at Protect Democracy, a nonprofit that works on
democracy issues. “I think this will be laughed out of court if they try to
bring this past post-election.”
“That
doesn’t mean we shouldn’t be worried or we don’t need to prepare for it,” he
added.
Justin
Levitt, a former justice department and White House official who worked on
voting rights issues, said the government’s case was so weak it would have
little chance of succeeding before or after election day. The administration’s
lawsuits, he said, are best understood as press releases masquerading as legal
complaints.
“There’s
no part of the administration’s file that is designed to operate in a fashion
where a court will make any meaningful ruling,” said Levitt, who is a professor
at Loyola law school in Los Angeles. “There are ways in which the law works
where a good claim today that cannot be brought just because it’s too early
becomes a viable claim tomorrow. But time does not transmogrify crap into
gold.”
Efforts
to delay certification at the local and state level
After the
2020 election, Trump and allies put pressure on little-known officials at the
local and state level to try and halt the certification of election winners.
None of that worked, but election deniers have gained
a foothold on local election boards throughout the country – positions from
which they could try and slow down the certification process.
Election
lawyers are well prepared for this possibility and are confident that judges
would quickly end such efforts and order officials to certify the valid winners
of elections. In the past, courts have stepped in
to force election officials to certify.
“Ultimately,
you cannot pull a contested election out of thin air, and there are processes
here and you can’t just manufacture contests where they aren’t real,” Lang
said. “I don’t imagine it looking all that different than it has in past
election cycles where we’ve seen some issues with certification that ultimately
come to a resolution. We’ve had counties that don’t want to certify; we’ve
dealt with that before.”
Shenanigans
on 3 January 2027
Efforts
to delay or halt certification could be aimed at 3 January 2027, the date when
the new Congress convenes. There’s concern that the Trump administration could
use its various legal and rhetorical challenges to the results as a basis to
try and block new members from being seated. The US constitution says:
“Each House shall be the Judge of the Elections, Returns and Qualifications of
its own Members,” giving both the US House and Senate leeway to handle disputed
elections.
Federal
law requires
the governor and secretary of state to sign a certificate certifying a
senator-elect’s win and send it to the Senate. In the past, when there has been
a post-election dispute about the winner of a Senate race, the candidate who
has the certificate gets seated provisionally while
the Senate rules committee investigates. In cases where the margin of the
race is close and there is no certificate, no senator has gotten seated until
the dispute is resolved at the state level. After the 2008 elections, for
example, a US Senate seat from Minnesota remained
vacant for months while Norm Coleman and Al Franken battled in a close
recount for months (Democrat Franken was eventually certified the winner).
“We’ve
had disputes over Senate elections, like Coleman versus Franken in Minnesota in
2008, but they never determined which party is the majority,” Foley said. “If
partisan control over the Senate hinges on something like Coleman verses
Franken, it will be a politically consequential and fraught moment as the
dispute remains unsettled. It also depends on how irresponsible the rhetoric is
around the dispute.”
There
have been lengthy post-election disputes over US Senate seats before.
Pildes, the NYU election expert, suggested that the justice department’s
efforts to interfere in Alaska may be aimed at bringing such a long-shot
challenge in the US Senate.
Trump
himself has suggested that Republicans refuse to seat Peltola if she wins.
“You’re
going to have to see what happens. It’s hard to believe that she could even be
allowed to run. Frankly, I don’t know how you could allow somebody like that to
run. It’s so unfair when you look at that,” Trump
said on Thursday.
Speaker
of the House Mike Johnson speaks to members of the media following a ceremonial
swearing-in of Representative Aisha Wahab, a Democrat from California, at the
US Capitol on 2 September. Photograph: Andrew Harnik/Getty Images
In the US
House, there is also the possibility of maneuvering, though it is more
complicated.
Unlike
the Senate, the House is not a continuing body and ceases to exist at noon on 3
January. That means that any challenge to a member-elect would be heard by the
new House – one where Democrats are expected to have a majority.
There’s
worry about another longshot strategy. A single bureaucratic official, the
clerk of the House, is responsible for putting together the roll of new
members. There’s some
speculation that Mike Johnson, acting under pressure from Trump, could fire
the current clerk of the House and replace him with a loyalist willing to
exclude some Democratic members-elect from the roll. Republicans could then
theoretically move to hold a speaker vote and try and maintain their majority
without the seated Democrats – a strategy that would require the support of the
other Republicans in the House.
Democrats
would assuredly go
to federal court to stop such an effort.
Many
scholars are skeptical it would work. Derek T Muller, a law professor at the
University of Notre Dame, has
described the speculation about replacing the clerk of the House as
“sophisticated disaster porn”. Johnson has also pledged to seat
Democrats who win.
“It
strikes me as quite unlikely, to me, at least, that this group of
Republicans–the one that takes days to choose a speaker and that regularly
cannot maintain order in its ranks–is going to have the cohesion and
coordination to pull off this kind of activity, which, to emphasize, can be
thwarted by other means, either politically or judicially,” he wrote earlier
this year.
But Brian
C Kalt, a professor at Michigan State University who has written about
contested house elections, said: “I think it’s very hard after January 6th to
just write off concerns like this.
“It’s
reasonable for people to study the issue, think about the issue, worry about
the issue. But I don’t think that it’s some imminent threat,” he added. “If
there are going to be any shenanigans, there will be initial steps, signs that
will be available. This isn’t just something they can spring.”
Homeland
security secretary Markwayne Mullin and ICE officials discuss sanctuary city
policies during a press conference. Photograph: Kevin Dietsch/Getty Images
Interference
at the polls
The Trump
administration has refused to rule out the possibility of immigration agents
being at the polls, a move that would violate federal law. Speaking in
September, DHS secretary Markwayne Mullin refused to categorically rule it out.
DHS agents were also canvassing houses earlier this year, inquiring about
people’s citizenship and whether they had voted. (A federal court blocked the
government from continuing to do this in October). Federal law prohibits
armed troops from being at the polls.
“The only
reason why we would be at polling places is if there is a threat to that
polling place or we’re serving a warrant on someone that we have been actively
tracking down,” Mullin said. “ICE’s job is immigration, customs enforcement.
That’s their job … if we’re serving a warrant we will be where we need to be,”
he said. Asked about the possibility of ICE agents at the polls, Harmeet
Dhillon, the assistant attorney general for the justice department’s civil
rights division,
told 60 Minutes recently that “there is no plan to do that.” The justice
department, which plans to conduct a significant poll-monitoring operation on
election day, has also said it will
not use ICE or FBI agents as poll monitors.
Still, election
officials are planning on what to do if immigration officers do show up at
the polls and there are several lawsuits seeking to block them from being
deployed. Democrats are also planning
on sending their own monitors to the polls to ensure voters aren’t intimidated
or interfered with.
Ballot
seizures
One of
the Trump administration’s most aggressive efforts to intervene in elections
came in January, when FBI agents descended on an election warehouse in Fulton
county, Georgia, and seized all ballots from the 2020 presidential election.
Trump
lost Georgia in 2020 by 11,779 votes – a result that was confirmed by both
recounts and audits. Trump has been obsessed with overturning the result ever
since the election and he and allies have pushed several conspiracy theories
since 2020 to argue that he didn’t lose. Those theories have all been debunked,
which is why it was stunning that a federal magistrate judge signed
off on a warrant to seize the ballots in January based on the same
theories. (As is customary, the judge did not give a reason for why she felt
there was enough probable cause).
Now,
there is concern that the Trump administration could try a similar approach
elsewhere and convince sympathetic judges to approve warrants to seize ballots.
Such an effort could be done with an eye towards making it harder for election
results to be certified at the local and state level, Berwick said.
“There’s
a big leap between what happened in Fulton county, which was a magistrate being
willing to sign a warrant for materials that were over five years old, and a
magistrate being willing to sign a warrant for live ballot materials,” Lang
said. “Everybody is preparing for every worst-case scenario, but I am very
hopeful that we are unlikely to see a warrant signed for live materials.”
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