| On Monday, the Supreme Court rejected the Trump administration’s last-ditch effort to upend mail-in voting during this year’s midterm elections. The ruling was a welcome relief to state election officials throughout the country who had raised serious concerns about the risk of mass voter disenfranchisement, but there is still plenty to worry about as we head toward November — including, most notably, the possibility that the Trump administration will try to seize ballots to swing election results or stoke claims of election fraud in order to discredit the outcome. |
| As we were waiting for the Supreme Court’s ruling on Monday afternoon, I spoke with Rick Hasen — a well-known election law scholar at the UCLA School of Law, a frequent writer for Slate and other outlets, and the founder of the Election Law Blog — about the administration’s push to change the rules, the conspicuous weakness of the Justice Department’s lawyering in the case, and the political allegiances of the Republican appointees on the court. |
| “I’m guessing that most of the justices are not fans of Donald Trump. I can think of maybe two that would be fans of Donald Trump,” he said, referring to justices Samuel Alito and Clarence Thomas. “The others either tolerate him or hold their nose and say, we’ve got to make a precedent here.” |
| As it turned out, Alito and Thomas were the only dissenters in Monday’s ruling. |
| We also discussed what judges should do if the administration tries to seize ballots or voting machines, the prospect of ICE agents showing up at the polls, and how Trump — “a weak-kneed would-be authoritarian” in Hasen’s view — succeeds in undermining the country’s elections even while losing in the courts. |
| “What Trump brings to the table is chaos,” Hasen told me. “That seems to be the point rather than an unfortunate byproduct of all of this.” |
| This interview has been edited for length and clarity. |
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| As we sit here, do you have a view on what the Supreme Court is likely to do with the mail-in ballot case? |
| Well, I’m not in the prediction business. What I can say is that no court in good conscience could side with the government in this case. |
| Because — to get immediately into the weeds — the judge made factual findings that this is going to disenfranchise millions of voters, because no state is going to be able to send out mail ballots until there’s a working portal, and the portal doesn’t even exist. The judge made findings that the government put forward no evidence that there’s a lot of fraud, and that this rule would prevent a lot of fraud. |
| I was struck by the weakness of the government’s brief in essentially not engaging with the facts. I don’t know if that means that they know they have a losing hand, or they really have nothing to say, but it’s not very good lawyering. |
| The government [has been] saying you can’t mail your ballots until you upload information to a portal, and the portal does not exist. That should be the end of the case. |
| I’ve also been struck by the poor quality of the Justice Department’s lawyering. There’s the merits side of it, and then there are the equities. On the merits, I find the argument that their rule is akin to restrictions on the mailing of replica explosives and cremated remains to be facially absurd. |
| On the equity side, there was no real effort by the Justice Department to address the lower court’s factual findings about the serious risks of disenfranchisement that would arise if the rule went into place at this point. |
| It’s hard to know what’s happening behind the curtain. One possibility is that they’re just overextended. They’ve got another petition before the court right now on the use of the SAVE database, and those are just two major election cases before the court, not to mention everything else they’re trying to do, from the Kennedy Center to the ICE raids. |
| There’s just so much. So that’s one possibility. Another possibility is that they’re just trying to please the old man. |
| I’ve been tumbling to that conclusion in the last day or two, because you wouldn’t pass a law school class if you wholly ignored half of the governing legal standard like they have. |
| Yes. I was telling this to a reporter who said, “well, I thought their brief was good because it had some talking points in it.” |
| It’s like, well, the judges are looking for responses to the strongest arguments on the other side. That’s how you have to write a brief. |
| Can you talk a little bit about the litigation around the SAVE database? That has sort of fallen off the radar. |
| The federal government maintains — and this predates Trump — a database that contains information about people’s citizenship status. And it is known to be an imperfect instrument. |
| It doesn’t include all the citizens. It’s not so up to date, so it includes as non-citizens people who become naturalized and get citizenship later. |
| The government’s been pushing for states to use this database as a check to look for non-citizens. |
| This particular piece of litigation that’s currently before the court involves a practice that DOJ invited states to participate in, where they could [do] bulk matching as opposed to an individual query: “Here’s a list of a million people. Can you check it and find any non-citizens on that list? Or tell me the citizenship status of everyone on this list?” |
| A federal court found that because it was so riddled with errors, and those errors would likely lead to the disenfranchisement of eligible voters, it could not be used in this election. |
| That’s what’s before the court. |
| Let’s assume that the Supreme Court sides with the challengers on the mail-in ballot rule. What’s your assessment of the rule on the merits? |
| My understanding is that there’s some debate among election law scholars about whether certain aspects of the Postal Service’s rule could actually survive a legal challenge outside of an election season. |
| Well, I think the merits have not been fully explored in terms of the power of the Postal Service. I think there are serious constitutional questions about the executive branch doing these things. |
| You could say that this is the government faithfully executing the laws against non-citizen voting, but it doesn’t seem to be calculated to actually do that. |
| The other part of the rule — or I should say the other part of [Trump’s] executive order that is not the USPS rule — is a DHS rule, which is also still supposedly coming. |
| DHS is supposed to create its own citizenship list, and it’s supposed to provide it to the states. |
| Now, what’s the point of that? Well, there’s a third part of the executive order that says DOJ is going to criminally prosecute election administrators who allow non-citizen votes. |
| The implicit threat is, if you’ve got on your list, state, people who are not on our list — the federal government — you might be in for some potential criminal liability. This is a threat hanging over the heads of election administrators who already have too much that they have to deal with. |
| Let’s take a step back. We’re seeing an unprecedented volume of election-related litigation this year. All of this stemmed from the actions of one political party and really the actions of one person — Trump — who kicked off both the mid-decade redistricting and the mail-in balloting stuff. |
| Is there any historical precedent for something like this? |
| Election litigation really exploded after the 2000 election, so Donald Trump didn’t invent election litigation. It was already at a very high rate. |
| He supercharged it when he challenged the outcome of the 2020 election. He filed over 60 cases just in that post-election period, and during COVID we had a big bump. |
| | | “What Trump brings to the table is chaos. That seems to be the point rather than an unfortunate byproduct of all of this.” |
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| What’s different now is the aggressiveness by which the federal government is trying to insert itself into elections, which is causing a whole bunch of election litigation, as well as the follow-on steps that states have taken following Trump’s lead. |
| Whether that is passing mini-SAVE Acts — states that require documentary proof of citizenship before someone could register to vote — as well as, as you mentioned, the redistricting push in Texas and Missouri and elsewhere. |
| Trump has supercharged what was already a quite litigious atmosphere, and what Trump brings to the table is chaos. That seems to be the point rather than an unfortunate byproduct of all of this. |
| You made a similar point in an interview with the Washington Post. Can you elaborate on that? |
| I think that the government winning the mail ballot case, if we go back to that for a second, is a long shot. So why bother? |
| No rational administration — even one that’s committed to a muscular view of the presidency and a belief that the president has the power to roll this stuff out for the treatment of mail ballots and citizenship lists — would do it on the fly in the middle of a midterm national election. |
| You would have a pilot, you would test it out, you would get feedback, you would refine it. If you wrote a play, you wouldn’t want it to be on Broadway the very first night. You need to work out the kinks, right? |
| So what could be the point? And I think the point is: what does chaos bring? It makes people doubt the integrity of the election process. |
| It makes it easier for Trump to claim that when Democrats win, it’s because they cheated, which could be a valuable thing for him to have as a belief among his supporters. |
| If Democrats take back control of the House, for example, and they start investigating and subpoenaing and potentially even impeaching cabinet members, or even trying to impeach Trump himself, claiming that the Democrats are illegitimate serves a political purpose. |
| And when Donald Trump tries to undermine confidence in the integrity of the election process, he undermines it first for his own supporters who believe him, and then he undermines it for his enemies who think that this is Trump trying to steal the election. |
| So it’s kind of a double whammy. It causes everyone to lose confidence. And if you’re a would-be soft authoritarian, lack of confidence in the election system is helpful. |
| Is that how you view Trump? |
| Yeah, I view him as a weak-kneed would-be authoritarian. |
| How much of this is the fault of the conservative appointees on the Supreme Court? |
| I feel like they have spent the last year and a half indulging so much nonsense from this administration, allowing the administration to make such extraordinary use of the shadow docket — or the emergency docket, whatever you want to call it — that Trump seems to believe that he can run to them whenever he wants, and that it’s likely, if not inevitable, that he’s going to get what he wants. |
| I think that these justices were chosen because they have a muscular view of the presidency, among a whole basket of ideological commitments that kind of come from the Federalist Society oeuvre, right? |
| A strong presidency — unless it’s a Democratic president — is one of them. I think of Biden v. Nebraska, or some of these other cases [like] the COVID cases. |
| I don’t think of the justices as partisan hacks. But I think, like everyone else, they tend to view the equities through their own lenses, which are increasingly colored by the arguments they hear in their own silos. |
| I’m guessing that most of the justices are not fans of Donald Trump. I can think of maybe two that would be fans of Donald Trump. The others either tolerate him or hold their nose and say, we’ve got to make a precedent here. |
| I’m reminded of the comment that Justice Gorsuch made during the oral argument in the Trump v. United States immunity case, where he said “we’re writing [a rule] for the ages.” |
| This is kind of the aggrandized way in which they see themselves, and I wrote about this in my piece in the Yale Law Journal — that the justices were so worried about a hypothetical limit on a vigorous presidency in the future that they were willing to tolerate election subversion in the present. |
| I don’t think it’s because at least seven of them walk into the building and think, “How can I help the Republican Party today?” But these are people who were chosen because of their worldviews that line up with this. |
| You may think that Trump is incompetent — in some ways he is — but he’s very good at finding weak spots. And one of the weak spots is the Supreme Court, because of the majority’s ideological predisposition. |
| Who are the two — Samuel Alito and Clarence Thomas? |
| Yes. |
| Let’s turn to what happens after the election. You recently published a white paper to help judges review warrant applications by the Justice Department to seize election-related material. |
| Is that the post-election scenario that concerns you most? Is that why you wanted to get that out there? |
| I think if Donald Trump had the opportunity to try to meddle in the 2026 election, he would take it. I see the [Postal Service rule] and lots of other things as meaning to meddle. |
| | | “People would crawl over glass. They would rush into polling places if ICE was trying to block their entry.” |
|
| And if you’re not committed to democracy, and you’re not committed to the rule of law, what kind of mischief could you do? |
| Some people are worried [about what happens] if Donald Trump sends ICE agents to the polls. I find this very unlikely. First of all, there are too many polling places and not enough ICE agents. |
| But more importantly, we saw what happened in Minneapolis, and the response of the public. People would crawl over glass. They would rush into polling places if ICE was trying to block their entry. |
| They’d be breaking federal law, which specifically bars armed federal agents at the polls. |
| I don’t think that’s going to happen — not that cooler heads would prevail, but it would just be counterproductive. |
| But if the election is very close for control of the House or Senate, and it’s possible to try to manipulate things, you try and do it on the back end rather than the front end, which is during the tabulation process and the certification process. |
| Can you break that down a little bit and talk about what sorts of mischief we may see? |
| Well, if you try to seize machines before there’s been recounts, then they can’t be checked for totals. Or you try to seize ballots themselves, which breaks the electoral chain of custody. |
| This would make it incredibly difficult both for election officials to be able to confidently declare a winner, as well as for the public to believe that winner. |
| The problem with a warrant application is that it could come from any level of government and go to state or federal court. So how do you reach thousands of judges? |
| Judges understand chain of custody as a matter of criminal investigations, which is a very different concept. Chain of custody for criminal purposes is often done in secret, right? You don’t want to tell the people you’re investigating what evidence you have. |
| Whereas transparency is required for electoral chain of custody, so people can be confident that ballots are not being tampered with. |
| If there’s a problem in a criminal investigation with the chain of custody of a piece of evidence, the judge can throw the evidence out and still have a prosecution, or there could be a limiting instruction: “you can consider the evidence for this purpose.” |
| | | “How do you balance legitimate law enforcement concerns with concerns about the integrity of the election and preserving the electoral chain of custody? We tried to give judges practical steps they could take to deal with that.” |
|
| There’s nothing like that on the electoral side. |
| So we at the Safeguarding Democracy Project thought it was really important to educate judges and give them ways of thinking about how [to] balance legitimate law enforcement concerns. I mean, there could be an attempt to have a local election official mess with ballots. |
| How do you balance legitimate law enforcement concerns with concerns about the integrity of the election and preserving the electoral chain of custody? We tried to give judges practical steps they could take to deal with that. |
| I hope it doesn’t come up. But we have seen ballots seized over the last 12 months in recent elections: the 2020 election ballots taken in Fulton County, as well as the Riverside County, California sheriff, Chad Bianco, seizing ballots from the Prop 50 election, the California gerrymander, after the election was over. |
| There may have been a perverse benefit — I’m putting my best spin on it — to the Trump administration’s successful effort to seize the ballots in Fulton County, simply because once I saw the affidavit in support of the warrant application, I asked myself how the magistrate judge did not ask more questions and consider alternatives to the seizure. That should be a cautionary tale to other judges. |
| At the time, it looked like — I think it’s the rubber-stamping that magistrates and judges typically do. They trust law enforcement, because law enforcement usually has decent credibility. |
| Also, there’s no obligation for them to put exculpatory evidence into a warrant application. So what we saw in that application was all the conspiracy theories minus any of the rebuttals — which is not necessarily improper in the standard criminal context, but in this context, extraordinarily different. |
| Yes, extraordinarily different. |
| Have you heard from judges? Do you feel good about the state of the judiciary at the moment on this subject? |
| We’ve heard from some judges who appreciated us sending [the white paper]. We’ve also sent it to judicial organizations in the hopes that these will be shared widely. |
| I hope it doesn’t come down to this. |
| The most likely scenario is that we don’t have such a close election that engaging in this kind of activity would actually make a difference. |
| So hopefully this is an unnecessary effort, or this is an effort that would turn out to be wasted energy. But I’d be very happy if that’s how things turn out. |
