Democrats’ historic election victories wiped away months of concerns that the Trump administration could bring legal challenges in close elections that could’ve stretched control of Congress into a gut-wrenching courtroom grind.
There will be an aftermath. The Justice Department has started a criminal probe over alleged ballot-stacking in Alaska’s Senate race that ensnared Marc Elias, a key Democratic party lawyer. Subpoenas have gone out for election workers in California, where the Trump administration is fighting over counting of ballots they suspect are from noncitizens.
But with control of Congress all but determined Wednesday morning, the threat of widespread litigation faded outside the typical partisan clashes in close races. Some Democrats summed it up in a catchphrase: “Too big to rig.”
Even the president, who had spent months grooming his base to doubt Democratic wins, appeared conciliatory on Tuesday night, telling The New York Times he was “absolutely willing” to accept the election results.
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At the same time, he posted a photo of the traditional red MAGA hat with “VETO” written on it, calling back to his earlier threats that he would veto whatever Democrats bring to his desk if they gained congressional power.
Election officials across the country had planned for aggressive litigation and worst-case incursions by the federal government on Election Day. That work required significant investments from many of the nation’s 10,000 election jurisdictions. Some officials and advocates even raised the possibility of federal agents seizing ballots after voting or refusing to seat Democratic winners.
None of those fears materialized. Neither did concerns of immigration agents appearing at the polls or a presidential declaration of an emergency to justify intervening in voting.
And there was vanishingly small amounts of election night chaos, nowhere near the calculated or system attacks that had officials and advocates anxious. Weather events hit polling locations in Florida, Utah and Colorado; technology glitches affected some polls in states including New York, North Carolina and Pennsylvania.
Assistant Attorney General Harmeet Dhillon’s deployment of an unprecedented 1,000 DOJ election monitors across the country appeared to go smoothly aside from isolated dust-ups in two states. Election officials in Michigan and New Mexico said monitors in two locations asked unusual questions but both situations were quickly deescalated.
The Trump administration had spent months laying the groundwork for an array of potential legal challenges, with the nation’s top law enforcement and national security officials promoting unsubstantiated claims of noncitizen voting and security vulnerabilities.
By the close of polls on Tuesday night, many of the officials who had most loudly amplified the administration’s noncitizen voting claims had gone silent on social media. Court dockets were largely quiet. The federal courts had rejected efforts to have California set aside ballots from suspected nonvoters.
Deirdre Schifeling, chief political and advocacy officer for the American Civil Liberties Union, said almost every losing candidate has conceded publicly.
“So I think we’re in a better spot in terms of actually having democracy upheld, and having peaceful transition of power, in the way that our Constitution expects and our country is used to, and that voters expect,” Schifeling said.
Still, the DOJ is pursuing the handful of cases it has left, however legally questionable they are.
A longshot DOJ lawsuit seeking to preemptively contest results in the Alaska Senate race is lingering in an appeals court, with briefs not scheduled for weeks. And a win there for Democrats would only boost the party’s clinched majority. Counting was still underway Wednesday, with no clear winner.
Officials are ramping up an investigation in Alaska, where Attorney General Todd Blanche has said the apparent recruitment of a candidate with the same name as the Republican incumbent, Sen. Dan Sullivan, constituted “fraud on the ballot.”
Elias, a prolific election lawyer and outspoken Trump critic who was reportedly among those subpoenaed in the probe, said he expected to soon face Republican lawyers and the DOJ in court.
“These fights won’t affect control of Congress, but they will determine how much room Democrats have to maneuver in both chambers,” he said in an email to supporters Wednesday. “They will also set the stage for real oversight of, and accountability for, a president who has so far operated without either.”
Officials have also subpoenaed California election officials, at least two of whom were scheduled to appear before a grand jury in Los Angeles on Wednesday morning in the DOJ’s investigation of purported voter registration and voting by noncitizens.
There’s also a possibility of recounts or candidate lawsuits arising in elections where counting is still underway and results remain close, including the Senate races in Mississippi and Alaska.
“We just don’t know what the final margin is going to be and what the candidate who’s behind is going to try to do,” David Becker, a former attorney in the DOJ’s Voting Section who now heads the Center for Election Innovation and Research. “That’s not election denialism. This is a legitimately close election.”
Beyond that, Becker said he anticipates that many of the ongoing cases between the DOJ and election officials or Democratic-led states will be dismissed, in part because the administration does not want to be held to the scrutiny that future discovery will require.
Any dismissals by the DOJ, Becker said, would “lay bare that this was a political strategy and not a law enforcement strategy.”
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