After months of litigation and speculation, Election Day could finally test how the Trump administration will use the legal system to influence the outcome of the midterms.
In the run-up to Tuesday, the Justice Department has sought to dictate how states count ballots, preemptively challenged the outcome of a Senate election and threatened election officials with prosecution.
The administration has lost nearly all of its legal fights so far, and no charges have been brought. But President Donald Trump and DOJ officials have set the stage for more potential legal showdowns over the results or what occurs at polling locations.
The last time Trump was in power during a nationwide federal election, in 2020, he and an army of allies tried to overturn his loss to President Joe Biden — an effort that was resoundingly shot down in court.
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He referenced that election in a Saturday social media post in which he also complained about a recent court ruling and falsely claimed that the top U.S. attorney in California had found millions of “illegal Votes.”
“We are going to continue our yearslong fight on Election Integrity,” Trump posted.
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The Trump administration has pointed the DOJ’s immense resources at the states over the past 18 months in attempts to nationalize critical aspects of election administration, which, under the Constitution, is the primary responsibility of the states.
They have pressed unsubstantiated claims of voter fraud and security vulnerabilities in lawsuits to obtain voter rolls that have been widely unsuccessful and an executive order on mail ballots that was stopped in litigation.
The administration has faced pushback from many state and local officials — some of whom have essentially taken to treating the federal government like an adversary instead of the partner it has been in elections past. There’s uncertainty about how the election might spill into the courts, but they are anticipating something.
“Our election officials are concerned about the federal government overstepping their role,” said Tammy Patrick, the chief program officer for the nonprofit National Association of Election Officials. “These are election officials all across the country — state and local, Republican, Democrat, elected, appointed, hired.”
Democrats and voting rights groups already have asked courts to stop federal law enforcement, the National Guard and immigration agents from going to polling locations. California Gov. Gavin Newsom went farther.
“A warning to Donald Trump: I’m deploying election lawyers to key battleground districts in California to protect every vote. And I just made it a FELONY to illegally seize ballots,” Newsom said.
Virginia Attorney General Jay Jones launched a Voter Protection Section, a team of lawyers to enforce voting rights laws and investigate threats to the ballot. And New York’s attorney general, Letitia James, emphasized that this year’s Election Protection Hotline is intended to “ensure that our elections remain free from intimidation and harassment.”
In Washington, FBI officials instructed agents to stay away from polling places after videos surfaced on social media showing National Guard troops and agents from Trump’s D.C. law enforcement task force standing outside places where Washingtonians were voting. The directive was disclosed in a lawsuit against the federal government over alleged plans to dispatch ICE agents to polling sites.
Election experts say they believe state and local officials are well equipped to resist any unlawful federal incursions on Election Day and that courts will continue to rule against the administration if it overreaches.
“I guarantee you, the state attorneys general are very prepared, and everyone is going to work collectively, Republican and Democrat alike, to protect state sovereignty over their elections process and protect the chain of custody of ballots,” said David Becker, a former attorney in the DOJ’s Voting Section who now runs the nonpartisan Center for Election Innovation & Research. “And I’m very confident that’s going to continue through Election Day.”
The Trump administration has shown it is ready to litigate. In Alaska, a lawsuit laid the groundwork for challenging the outcome of Alaska’s Senate race but has been thrown out. The administration has vowed to appeal, and some Republicans have raised the possibility of blocking Democrat Mary Peltola from being seated if she wins.
In California, the U.S. Supreme Court quickly denied the DOJ’s request for the justices to force the state to set aside 20,000 ballots it claims may be from noncitizens. Multiple lower judges have blocked the administration’s bid to prevent the disputed ballots from being counted. But the department has sent grand jury subpoenas to election officials in the state in connection with its voter roll investigation, with instructions to appear for a proceeding on Wednesday morning.
“We will continue pursuing every available legal avenue to protect the integrity of our elections and ensure federal law is enforced,” Acting Attorney General Trent McCotter said of the litigation Wednesday on social media.
The DOJ says it’s also deploying 1,000 election monitors across the country, hundreds more than in any previous election. Assistant Attorney General Harmeet Dhillon has said they will be tasked with looking for cases of alleged fraud in addition to their normal assignment of passively watching for compliance with voting rights laws.
In his second term, Trump has reshaped the Justice Department by appointing his former criminal lawyer, Todd Blanche, as attorney general, installing other loyalists in senior roles, and purging thousands of career attorneys and staffers. The Civil Rights Division has lost hundreds of employees under Trump, and nearly all of the Voting Section’s attorneys have turned over, many of them replaced by lawyers with Trumpworld bona fides and virtually no experience with elections.
On the sidelines, a chorus of election deniers with close ties to Trump are boosting the administration’s claims and fanning false conspiracy theories about the nation’s voting systems. Among them is Ed Martin, the former interim U.S. attorney in Washington, who left the DOJ over the summer to focus on what Trump said would be election “legal battles.”
Also joining the fray is Tina Peters, a former Colorado election clerk who served time in prison for her involvement in a breach of her county’s voting system. She claimed she met with Trump last month to encourage him to use federal law enforcement officers to investigate vote counting.
On Sunday night, the Senate Democratic Caucus heard from leading Democratic election attorney Marc Elias about pending litigation, anticipated legal challenges and how to counter potential election interference, according to a Senate Democratic aide.
The discussion focused specifically on the heightened threat of election issues in key Senate battleground states, where MAGA-aligned Republicans hold power at the state or local level, the aide said.
It’s an atmosphere of distrust and a sharp partisan split ahead of a midterm election that will determine which party controls the House and Senate, one in which the Trump administration has pushed aggressively on election system overhauls.
Several former DOJ officials with expertise in election issues said the DOJ may continue to file legal challenges once polls close. But they emphasized that they viewed the administration’s sweeping attempts to tighten its grip as desperation rather than a coherent strategy.
“I don’t have concerns about voters not being able to go out and vote safely. Those ballots will be counted,” said Eileen O’Connor, a former trial attorney in the DOJ’s Voting Section who manages the Brennan Center’s Voting Rights and Elections Program. “My concern is more of the same — attempting to undermine confidence and just injecting more chaos. That’s what all of this is anyway.”
“The states are responding as they should, but this is not a position they should be in,” she added. “They shouldn’t have to be wasting all these resources fighting the federal government. They’re doing what they have to do.”
To date, the administration’s attempts to intervene in state election affairs have been almost entirely unsuccessful in court.
Executive orders Trump issued on proof-of-citizenship and mail-ballot restrictions have been blocked in court. The administration has lost 27 of 31 lawsuits it brought against states and Washington, D.C., seeking to force them to hand over sensitive voter data. A subpoena for poll worker data was quashed in Georgia.
Becker, of the Center for Election Innovation & Research, said, “They have an unprecedented, unblemished record of failure.”
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