How to Assess the Election Day Risk of Trump’s Lawless Attack on the Midterms

INSIDE: A Special Election Threat Edition of Morning Memo

How to Think About Election Day Threats

With the worst of Trump’s pre-election attacks on the midterms either failed or foundering, let’s turn to the next act in this saga: scenarios for election interference on Election Day itself.

Trump’s attack on free and fair elections has been persistent but also opportunistic, operating less from a master plan than a series of impulses and lurching efforts. That makes it hard to predict, though some telltale patterns do emerge.

While we don’t know what Trump or his DOJ and DHS may have in store for Election Day, it is when his attack could get its most ugly, with particular concerns around state-sanctioned violence. But that’s at one end of the spectrum and there’s a lot of other higher risk but lower impact possibilities for tomorrow.

None of this is intended be predictive. I just want to frame up for you what to be looking for and how to think about the Election Days threats. The risks exist along a continuum that includes everything from fairly normal Election Day complications to what might look like a coup.

The range of Election Day concerns is so broad that it’s helpful to divide them into two categories: (i) transitory scenarios that bear mostly on Election Day itself; and (ii) scenarios that are likely to carry over into the immediate post-election period, including those intended to set the stage for post-election challenges.

It’s not so much that one bucket is more serious than the other (although kinda, as you’ll see below) or that the impacts are more or less real. It’s just that the first bucket of scenarios are mostly one and done on Election Day, and the second bucket of scenarios will persist into the fractious post-election landscape between the polls closing and the state-by-state certifications of their elections.

Bucket #1: One and Done

Election Day scenarios that are likely to be short-lived include, in rough order from rare to more common:

• denying or limiting access to polling places, including disrupting and impeding voting;

• threatening and intimidating voters and election workers at polling places, vote-counting centers, and the offices of elections officials;

• misusing law enforcement or federal agents, including ICE, to instill fear and cast a pall over the election;

• disputes over poll opening and closing times; long lines at polling places; ballot shortages; ballot and voting machine errors and snafus.

(The last item above encompasses typically discrete issues that pop up around the country in every national election but which rarely impact election results. They often get widespread and frenzied news coverage in the morning and afternoon of Election Day, when the news is otherwise slow because campaigning is done and all there is to do is wait until the results start to come in.)

The defining element of the scenarios in this first bucket is that they largely abate once the polls close. It is common for these concerns to take on outsized significance for a few hours on Election Day and then vanish from the national discourse. But they carry the risk of mushrooming into something bigger, especially this year, such as being used as a pretext to take more dramatic direct action to intervene in the election.

One last point: If there is any kind of concerted, pre-planned, extralegal attempt by the Trump administration to use the powers of the federal government to intervene in the election while voting is underway, we might first detect it among the actions listed above. It may start ambiguously as a prelude to the more direct interventions below.

Bucket No. 2: The Big Uglies

The second bucket of Election Day scenarios contains the most egregious, over-the-top tools in the authoritarian tool chest. The risk of the worst of these actually coming to pass is the highest it’s been in any of our lifetimes, but it still remains a fairly low risk overall. The impact though would be devastating.

The Election Day interference that will persist into the post-election phase includes, in rough order of less likely to more likely:

• destroying ballots or otherwise compromising election security and integrity, including by foreign actors;

• direct intervention by law enforcement or federal agents, including ICE, in polling places, vote-counting centers, and the offices of elections officials;

• detaining, arresting, or charging elections workers and officials;

• seizing ballots, ballot boxes, voting machines, and tabulating equipment;

• sequestering whole categories of already-cast ballots;

• mass challenges of already-cast ballots;

• widespread challenges of normal Election Day processes and procedures;

• refusal of individual candidates to concede after clear election defeats;

• refusal to concede the loss of the House or Senate despite decisive election results;

• inventing new pretexts and reusing old ones to refuse to accept the results of the election overall.

The scenarios in the second bucket range from grossly unlawful to the kinds of election delegitimization and extreme gamesmanship that we’ve seen throughout the Trump era but which aren’t per se illegal. It may be difficult on Election Day itself to identify immediately which election challenges are reasonably legitimate under the law — and which are not. That will shake out in the post-election period, but we may get an initial glimpse of them before Election Day is over.

A Few Caveats

The dividing line between the two buckets of scenarios above is imperfect and in some instances could get pretty blurry pretty fast. The line between federal agents vaguely intimidating voters near polling places versus directly intervening at a polling place versus detaining election workers can be crossed in a cascading series of failures within minutes.

The astute reader will also note that late on Election Day, after the polls close, is by definition the post-election period. So things like disrupting the tabulating of the votes or seizing tabulating equipment late tomorrow night might not technically be an Election Day concern. Point taken. But for the purpose of broadly alerting you to what to look out for tomorrow I didn’t want to arbitrarily cut it off when polls close, especially with our time zone differences, which puts different parts of the country in different phases of Election Day.

I haven’t really entertained here the worst of the worst fears: that the 2024 election was the last real free and fair election or that the military will be deployed. I don’t think those are realistic scenarios.

Even the worst of the scenarios I do list above I expect would happen sporadically and in specific jurisdictions where either the election is close or Trump wants to make a point of dominance and punishment. In other words, I think it will likely follow the patterns of the rest of the Trump II presidency.

A Gut Check

If you’re looking for a gut check, here it is: I don’t expect the worst of the above scenarios to come to pass.

U.S. elections are too decentralized and the powers of the executive branch alone are too limited in state-run elections for the nightmare scenarios to be more than a fairly remote risk. But an erratic head of state with authoritarian impulses who has built a cult of personality within the ranks of federal officials, runs a supine Department of Justice directly from the White House, and has an overfunded DHS at his disposal remains a very real risk, especially considering how huge the potential downside is.

I am most concerned about extreme Republican gamesmanship pushing the legal and political envelope for months to deny winning Democrats a majority in the House or Senate. Under that scenario, the shenanigans would start on Election Day and persist into January and perhaps beyond.

Even the perfectly legal contest of the 2008 Senate election in Minnesota denied Senate Democrats a 60th vote for months until Al Franken was finally seated in July 2009. Think of it as GOP transgression on steroids, drawing on elements of the 2000 Florida recount, Bush v. Gore, Jan. 6, and the invasive federal immigration operations in blue cities.

While I’m most concerned about that scenario — which would be very on brand for Trump II Republicans — I still wouldn’t rate it as likely, largely because Republicans will need lots of plausibly close races to maximize chaos — and polling suggests a blue wave. Decisive Democratic victories are the best way to mitigate this risk — but it shouldn’t take a wave election for the rule of law to prevail. Alas, here we are.

For the latest developments on all these fronts and everything else about the election, I’d urge you to monitor TPM’s latest live blog.