Walter Olson
Number 25 in our series of occasional roundups on election law and policy, this time focusing on state and local preparations for last-minute disruptions and federal interference in the midterm elections:
“We Asked 37 Election Experts What Could Disrupt the 2026 Elections.” [Nathaniel Rakich, VoteBeat] More: Politico asked seven experts practical ways to keep the November elections free and fair; Ned Parker and Peter Eisler, Reuters; The Economist via Election Law Blog; and David Gilbert, Wired (States run tabletop exercises to prepare for unusual contingencies, including in Maryland, for what would happen if federal authorities arrested the state’s elections director.) “The Trump Administration Comes for State Voter Rolls; Why the Department of Justice is demanding state voter registration lists, why most states are resisting, and the court battles so far” [Eric Columbus, Lawfare, in March; Justin Levitt on the Office of Legal Counsel’s legal rationale for the demands; and my Bluesky thread bringing up a few other angles including the aim of federally ordered “push-button removal” of voters in a given state and the potential for sowing doubt about unwelcome midterm results in a hard-to-refute way] In an email last November, a Department of Justice official “advised that the department keep some election officials in the dark about what the administration was intending to do with unredacted state voter rolls, which contain private information about Americans. ‘I believe our reply should always be: “We will use the data in a manner consistent with Federal law” and say nothing more.’ ” [Tierney Sneed, CNN] Trump’s March executive order seeking to meddle with mail voting directs the creation of three distinct lists of persons with no clear interrelationship between the lists and relying in some cases on the compilation of data not available in any accurate and up to date form. [William Adler and Wren Orey, Bipartisan Policy Center] “Citizenship lists that the Trump administration has ordered be compiled and shared with state election officials this year are likely to be incomplete and unreliable for determining voter eligibility,” the Justice Department conceded in federal court in May. [Zach Montague and Adam Sella, New York Times] New US Postal Service rules gesture at implementing the dubiously legal executive order. [Dion Nissenbaum et al., VoteBeat; earlier in this space from Stephen Richer] “How Can States Address Federal Hostility to Mail Voting?” [Derek Clinger, State Democracy Research Initiative (SDRI), University of Wisconsin] “U.S. President Donald Trump’s election-security czar last year sought to ban voting machines used in more than half of U.S. states by asking whether the Commerce Department could declare their components national-security risks,according to two people with direct knowledge of the matter.” [Reuters via Rick Hasen, Election Law Blog] Other high executive branch officials appear if anything even less well disposed toward voting machines [Doug Bock Clark, ProPublica; related Clark and Jen Fifield, ProPublica on the overall team Trump has installed for election security] Riverside County, California, sheriff’s seizure of state ballots from a previous election was enabled by dodgy search warrants, which also holds lessons for attempts to seize live ballots in process: “There’s going to have to be a lot of education of judges before November about the dangers of allowing ballots to be seized, and the many alternatives available to preserve the integrity of elections without breaking the chain of custody.” [Rick Hasen; more background on the seizure, Anat Rubin and Jessica Pishko, CalMatters] How local election authorities should respond if the feds come around with a search warrant demanding ballots and voting records [Gary Restaino, Brennan Center] “How State Supreme Courts Can Prevent Prolonged Election Contests” [David Clinger, SDRI] And on would-be presidential decrees: The Major Questions Doctrine limits executive power grabs in this field, just as it does others. [Ilya Somin]
