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Trump's Midterm Mayhem - The Wins and the Warnings
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A demonstrator holds signs while protesting against US President Donald Trump’s executive order that aimed to change how Americans vote by mail ahead of the midterm elections. Photo by ROBERTO SCHMIDT / AFP via Getty Images.Donald Trump has spent six years refusing to accept an election result he did not like, and the run-up to the 2026 midterms has been shaped by his stubborn and baseless claims of election fraud. He has ordered raids on local election offices, demanded state voter rolls through an executive order and tried to end mail-in voting completely. In a February podcast interview with former FBI deputy director Dan Bongino, he told listeners Republicans should “nationalize the voting,” meaning put it all in the hands of his people.
Not a chance. Blue states and voting rights groups have pushed back hard, filing dozens of lawsuits and taking the fight all the way to the Supreme Court. Seven weeks from Election Day, the record so far is good for anyone who cares about free and fair elections. But real risks remain.
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First, the wins
Since May, the Justice Department has sued 30 states and Washington, D.C., for refusing to turn over their complete voter rolls, including driver’s license numbers and partial Social Security numbers. While many GOP-controlled states went along with the demands, Democratic-controlled ones resisted. After all, the administration of federal elections isn’t an executive branch function. Under the U.S. Constitution, it’s left to the states or Congress. It’s not the purview of the White House.
Federal judges have unanimously agreed. So far, they have dismissed 23 of those lawsuits, according to a running tally kept by the Brennan Center for Justice, with one court after another finding the demands unsupported by any statute the department has cited. A California judge went further, writing that the department’s stated purpose of “voter roll maintenance enforcement and compliance” did not match what its own officials had said elsewhere, and that the broader campaign “paints an alarming picture regarding the centralization of Americans’ information within the Executive Branch.”
Then there’s the saga of the USPS and its asserted role in our elections. That storyline ended with a loss for the White House on Monday at the Supreme Court, which issued a single-paragraph ruling on its emergency docket denying the regime’s request for a stay of a lower court’s injunction and emphasizing that it did not think the defendants would prevail on the merits.
The road to Monday’s ruling was a winding one that had bounced up the Supreme Court with a far less positive result. In late August, a majority of the justices sided with the administration in a related case, Trump v. California, lifting an earlier district court injunction. Let me clear my throat before reciting the legal grounds, which are admittedly confusing: The Court lifted the injunction on narrow standing and ripeness grounds, rather than on the merits, briefly clearing the way for the rule to take effect and prompting the district judge to vacate her own block, only to reimpose a new injunction once the Postal Service actually finalized its rule and voting-rights groups sued again.
Monday’s SCOTUS decision closed that door, thank goodness. The justices declined, presumably 7-2 (though as Georgetown law professor Steve Vladeck noted, it could be 6-3 because we only saw two public dissents), to let the Postal Service enforce the rule, leaving standing the district court’s finding that it likely violated the Constitution’s grant of election authority to the states and a federal appeals court’s separate warning that it would likely disenfranchise millions of voters while doing little to combat actual fraud.
To no one’s surprise, Justices Samuel Alito and Clarence Thomas wrote a public dissent, arguing that the White House was likely to prevail eventually on the merits. At least a few, if not all, of Trump’s appointees disagreed.
With this ruling, we are seeing a familiar pattern. It’s one that held in 2020 whenever the Trump campaign’s claims about elections actually reached a courtroom. Inside courthouse walls, Trump repeatedly lost before judges appointed by presidents of both parties, until the Supreme Court finally declared it also wasn’t going to put its finger on the scale for Trump.
Our judiciary continues to function, however battered by the bad faith of the Justice Department and the appointment of cynical partisans. But the courts are only a check on claims already made and challenges already filed. They have no say over claims not yet raised or maneuvers built to never reach a courtroom at all.
Next, the familiar pressures
For anyone who has followed Trump’s threats around this election cycle, the dangers he and the executive branch pose fall into four basic buckets: federal seizure of ballots, data and even voting machines; a declaration of national emergency over election fraud; armed federal agents or even troops stationed at polling places; and local officials engaging in shenanigans, including refusing to certify election results.
The seizure threat is already real, just as it was in 2020 when Trump reportedly regretted not having troops take possession of voting machines after his electoral loss. This election cycle, he has not held back. In January, the FBI raided a Fulton County, Georgia, election warehouse and physically removed the 2020 ballots, an operation former Director of National Intelligence Tulsi Gabbard was somehow present for. And in California, the Riverside County sheriff similarly confiscated ballots from a 2025 redistricting referendum. Obtaining state or county election records does not always take the form of a raid, however, as we saw in Arizona, where a federal grand jury subpoenaed digital election data tied to the state Senate’s discredited 2021 Maricopa County audit. The data was quietly obtained through paperwork after the state Senate president complied and handed the records to the FBI.
A national election emergency is something Trump’s allies, including former adviser Steve Bannon, have pushed him to declare, despite the fact that there is no law authorizing one. A 17-page draft executive order, reviewed in full by PBS News, has already circulated among his allies. It claims foreign interference in the 2020 election as grounds to impose national mandates such as hand-marked paper ballots counted in public, nationwide re-registration with proof of citizenship and new voter ID requirements. Rather alarmingly, Trump has declined to rule it out, telling an interviewer as recently as August who asked about such a declaration that “stranger things have happened.” To be clear, the U.S. Constitution gives states, not the president, authority over federal elections under Article I, Section 4, and no statute grants the executive branch power to override that during a declared emergency. Hofstra law professor James Sample called the idea that Trump could simply declare a national emergency “legally baseless”—and he is right about that.
Bannon has separately called for an “up-armored ICE presence” at polling places. It’s an idea Homeland Security Secretary Markwayne Mullin has pointedly declined to rule out, saying just this month that agents would go to polling places only “if we’re serving a warrant” or responding to a threat, even as the chairman of the Joint Chiefs of Staff has denied any plan to use troops to seize ballots or voting machines. Like the power to declare a national election emergency, the idea of armed agents at polling places is not just controversial; it is squarely illegal. Federal law bars deploying “armed men” to any place where an election is being held and separately bars intimidating, threatening or coercing anyone in connection with voting. As attorneys Jasleen Singh and Kendall Verhovek of the Brennan Center for Justice pointedly noted, ICE has no statutory role in enforcing election law.
Certification refusal is not just a Mike Pence Hail Mary; it has a track record at the county election level. Local election deniers serving as officials in eight states have refused to certify results 35 times since 2020, according to Citizens for Responsibility and Ethics in Washington, and every one of those refusals has eventually been forced through by a court. As the Washington Post reported, a commissioner in New Mexico’s Otero County cited debunked theories about voting machines in 2022 and voted no on certification anyway, telling an attorney who warned she could be jailed for it, “So then what?” A commissioner in Nevada’s Washoe County has voted against certifying every election since 2020, including her own reelection.
The lack of a sound legal basis for any of these mechanisms matters less than what they actually cause in the moment: fear and confusion that could overwhelm a process still working itself through a slow-moving legal system. That is precisely the model Jan. 6 established. Indeed, the attack on the Capitol was never going to succeed as some kind of constitutional procedure. It succeeded, for a few hours at least, as chaos. And chaos was the entire objective. Once mayhem is generated, it can be used to justify invoking the strong hand of the federal government to restore order and stability.
The Pence play, updated
In 2020, Trump’s legal advisers went looking for a single point of technical failure in a process everyone assumed was purely ceremonial, and they found one in Mike Pence. As vice president, Pence’s role presiding over the certification of electoral votes had never before been treated as discretionary. Trump’s team spent weeks trying to convince him otherwise, arguing he had the authority to reject or delay certified votes based on his own judgment. Never has so much ridden on one person simply upholding the oath he took. Pence refused.
Retired federal judge J. Michael Luttig, a George H.W. Bush appointee and longtime conservative legal figure, has identified a similar chokepoint one office removed, laying it out in detail in a September 10 essay in The New Republic titled “The Final Battle for America’s Democracy.” Luttig’s warning centers on House Speaker Mike Johnson, whose term expires at noon on January 3, 2027. Before then, Luttig argues, Johnson could theoretically remove current House Clerk Kevin McCumber and install a loyalist willing to refuse to list Democratic members-elect on the statutory roll used to organize the new Congress. Members-elect would then have to seek a federal court order compelling the clerk to comply. In Luttig’s darkest scenario, that clerk could defy even a Supreme Court writ, dragging the standoff out for weeks or months while Congress sits paralyzed.
A clerk’s job is ordinarily ministerial and invisible. Luttig is describing a scenario where Johnson does to the House clerk what Trump’s advisers tried and failed to do to Pence: give a functionary a reason to believe he actually has the discretion and the justification to keep certified winners out of their seats.
This scenario, while possible, is not on my front burner. Nor is it likely to last long, as attorney and writer Robert Hubbell persuasively argues, given how quickly the Supreme Court has acted when it comes to resolving election-related disputes. Speaker Johnson and any House clerk he appoints would understand this and likely think twice about crossing, let alone defying, SCOTUS on the assumption that they could delay the seating of a new Congress for long.
There’s something lost, however, in the discussion around maneuvers, mechanisms and vulnerabilities. Every one of these schemes depends on the same thing: a public-facing story convincing enough to make the attempt look defensible, at least for as long as it takes to do damage. It also changes what a court is willing to do. A judge asked to intervene within hours of a seizure or a refused certification moves differently against a backdrop of “we found something” than against silence or the lack of any colorable claim or evidence. Trump and his allies are already building that story around three distinct conspiratorial claims.
Conspiracy one: The minority “vote-dumps”
The oldest false predicate is also the most familiar. In 2020, Trump built his entire election fraud narrative around a specific image: ballots counted overnight in large, heavily Democratic, heavily African American cities. He framed the counting of ballots as suspicious simply because it continued after midnight.
“When you see what happened in Detroit, Atlanta, Philadelphia & Milwaukee, massive voter fraud,” he wrote that November. None of those cities decided the election. Turnout in Detroit actually fell from 2016 levels, and Trump won a larger share of the city’s vote than any Republican nominee in decades; Biden won Michigan in the suburbs, not the cities Trump named.
The claim never needed to be true to work, and Trump has already revived it for 2026. In a February podcast interview and again the next day from the Oval Office, he named the same cities as likely culprits in his fantastical election heist. “Take a look at Detroit. Take a look at Pennsylvania. Take a look at Philadelphia. You go take a look at Atlanta.”
This election cycle, the Justice Department plans to deploy roughly 1,000 election monitors this November. That would be a record for a Republican administration, according to Assistant Attorney General for Civil Rights Harmeet Dhillon. During this year’s primaries, federal personnel were already sent to Detroit, Hamtramck, Lansing and East Lansing in Michigan. They were also dispatched to Maricopa, Apache and Pima counties in Arizona, presumably on the false premise that illegal votes were being cast by undocumented Latino residents. Dhillon has framed the deployment around ensuring no voter is “canceled out by someone who should not be voting,” language that echoes the regime’s unproven “immigrant voter fraud” claims rather than the Voting Rights Act compliance the monitor program traditionally exists to enforce.
Conspiracy two: The mail-in mirage
The second predicate is newer, and it compounds the first rather than replaces it. The manufactured fraud claims that failed in 2020 shared a common flaw: They arrived too long after the votes were counted and the result known. That forced Trump’s lawyers to invent stories to fit a result they didn’t like.
The newer conspiracy claim doesn’t need to be invented after the fact because the vote-counting process itself, lawfully and correctly administered, produces the appearance of fraud in real time, before anyone has to lie about anything.
I wrote about this peculiar dynamic in June, when California’s ongoing primary count first became a live preview of what November could look like. The state automatically mails a ballot to every registered voter, a policy Gov. Gavin Newsom made permanent in 2021. Those ballots are valid as long as they are postmarked by Election Day and arrive within seven days afterwards. Los Angeles County alone has to be ready to process ballots from as many as six million people, most of whom vote by mail. Statewide, roughly 13 million of the 16 million votes cast in 2024 arrived by mail. Same-day registrants cast provisional ballots that require separate verification.
As I wrote in June,
Election experts have described the cumulative effect using a vivid analogy: a pig moving through a python. The processing systems in each county must absorb an enormous pile of late-arriving ballots, all legally mailed but at the last minute.
The count takes weeks not because anything has gone wrong, but because that’s how much time absorbing such a huge pile of ballots requires.
Republicans are more likely to vote in person or return mail ballots early, so those votes get counted first, producing an initial tally that leans Republican. Democratic votes arrive and get counted later, and the count shifts. This creates a mail-in ballot mirage of sorts, or as I described in June, “an illusion of Republican dominance created entirely by the sequence in which valid ballots happen to be counted.”
Trump has already shown us what he will do with that gap. During the June primary, as mail ballots shifted two closely watched races away from his preferred candidates, he told NBC’s Kristen Welker that California was “rigging the election.” He offered no evidence, instead saying that “all I have to do is look.” Ron DeSantis, Megyn Kelly and a rotation of Fox hosts amplified the claim within hours, and the Justice Department sent a federal prosecutor to observe ballot processing in Los Angeles County the next day.
California Attorney General Rob Bonta had predicted exactly this scenario months earlier, calling Trump’s rhetoric around the state’s Proposition 50 special election “a tee-up for something more dangerous in the 2026 midterms and maybe beyond.”
The stakes in November are huge. California holds 52 House seats, more than any other state, and five of them shifted into competitive territory after Proposition 50 redrew the maps in favor of Democrats in response to Texas’s partisan gerrymander seeking to hand five more seats to the GOP. Those are exactly the kind of close races that take the longest to call, and they may well decide which party controls the House when the 120th Congress convenes in January of 2027. On election night, Republicans could hold apparent leads in several of those districts. Over the following days, as lawful counting proceeds, some of those leads will narrow or flip toward Democrats, the same pattern that played out in the June primary and in 2022 and 2024. And Trump will pounce.
Conspiracy three: Local yokels
The third predicate is Trump’s recent citizenship-list campaign. The White House has recently accused Pennsylvania, California, New Jersey and Nevada of having hundreds of thousands of noncitizens on their voter rolls, publicly pressing the claim for weeks while struggling to produce evidence. State officials call the underlying data unreliable. Justin Levitt, a law professor at Loyola Marymount and a former Biden administration adviser, describes the 250,000-noncitizen figure the White House has floated as a prop, something to point to if it wants to justify taking action, whether or not the number holds up under scrutiny.
Accurate, smackurate. That justification doesn’t need to hold up under scrutiny to do its work at the county level. Indeed, local election boards already have a template. In Fulton County, Georgia, board member Janice Johnston filed a state lawsuit seeking to leverage unsubstantiated claims about the county’s 2020 election into expanded certification power and direct access to ballot images, despite the secretary of state and the courts having already dismissed those claims. A local commissioner who wants a reason not to certify in November has, in the citizenship-list numbers, a ready-made and presently unfalsifiable one. It doesn’t matter that the underlying data is bad. It only matters that it exists and sounds enough like fraud to hold up for the days or weeks it takes courts to force certification through anyway.
Trump and his cronies are hoping that if enough local election officials rebel, it will look and feel like some kind of national crisis justifying the seizure of ballots, a national election emergency declaration or even the deployment of armed agents or troops to election sites.
So are we screwed?
It’s understandable to feel overwhelmed by the ferocity and scope of these attacks. These three conspiracy-based assaults on our elections could all move into high gear the moment polls close and first counts come in—but before races are officially called and results are later certified by local authorities. It’s that very gap Trump and his allies will seek to exploit.
But standing in that gap will be state and local election officials and voting rights lawyers, who already know the timing and understand the gist of what the other side will attempt. They will be prepared with election monitors, lawsuits and pre-drafted motions for temporary restraining orders, all in advance of the expected attacks.
Federal judges also know it may be a long night, if not a long couple of weeks, as unverified and unsubstantiated claims once again seek to derail the election and certification process. This time, unfortunately, the weight of the federal government will be behind the “evidence,” with the DOJ presenting “data” it received from cooperative red states as “proof” of something untoward.
That’s unsettling, but we can take comfort in the fact that the DOJ still has not prevailed in over two dozen election cases it has fought so far. And for all its faults and partisanship, the Supreme Court has at last signaled that it is not always ready to side with the White House, particularly over election matters in which the executive branch should play zero role as a matter of law.
Trump and his co-conspirators also understand that they may now be holding a losing hand, despite their latest attempts to rig and undermine our elections. If Trump’s past behavior is any guide, one likely retreat will look like any other TACO Tuesday: The president will turn up the rhetoric even as he backs down, then blame someone else for the failure (he’s already pointing to Republicans) and retreat further into his happy zones of ballrooms and monuments to himself.
All this suggests that we should stay the course, prepare for what we know is coming and turn out in droves to power a blue tsunami that will sweep Democrats back into control of one, if not both, chambers of Congress. The recent court wins teach us that if we heed the warnings and do our homework, Trump’s anti-democratic attacks can be defeated and the rule of law can come out on top once again—just in time for democracy to take the W, too.
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