Running Out the Clock
Let me start by emphasizing that past returns are not at all indicative of future results.
With that said, the federal courts have held their own so far through the pre-election phase of the Trump administration’s attack on free and fair elections. There’s still time for the Supreme Court to engage in mischief before Election Day, but there’s not that much time. And that’s really the key thing.
I’ve had my hair on fire about the federal interference in the California elections since the evening of Oct. 13 precisely because that was far enough out from the end of voting for real damage to be done — but not enough time to respond to mitigate that damage.
What we couldn’t know then, but which now seems likely, is that the Trump DOJ’s effort — to use the Big Lie of rampant noncitizen voting as a pretext to assert federal power to change states’ election processes and procedures — was going to be largely limited to California. It’s the only place the Trump DOJ has gone to court to try to force the segregation of alleged noncitizen ballots and delay their counting — and it has so far lost, and decisively so.
I still don’t understand why the administration focused on only one state or why that state was California. It’s possible this was just the last gasp of months of pre-election efforts by the Trump administration to skew the elections — or I’m just missing something that I will rue for a very long time. But in a series of district court wins and in two rulings by the 9th Circuit yesterday, the Trump administration’s interference in California has been confronted squarely.
Even a late intervention from the Supreme Court in the California case (and the Trump DOJ hasn’t gone there yet as of Saturday morning) would have much less on-the-ground impact now because mail-in ballots have continued to be processed in the two weeks since it went to court. Once they’re processed, they can’t be linked to a particular voter, so they cannot be set aside. The batch of actionable ballots that could be segregated — which, honestly, wasn’t that big to begin with — continues to shrink.
In short, the pro-democracy forces have nearly run out the clock on the worst of the pre-election interference attempts.
A Play in Three Acts
But the pre-election phase is only Act I of this three-act play.
Act II is Election Day itself, where all manner of mischief is possible in an intense 24 hours. The spread of early voting has helped to reduce the overall potential impact of Election Day sabotage, but there are still risks — and importantly, what happens on Election Day can set the stage for Act III.
Act III is everything that happens post-election, from tallying the votes to challenging ballots already cast to recounts and certifications and ultimately election contests. It’s where close elections can be won or lost.
The three acts aren’t entirely distinct. They overlap and play off of one another. Good legal strategies, whether offensive or defensive, try to set the stage in Act I for what will happen in Act III. What the Trump DOJ is doing in the Alaska Senate race right now — even though it’s inane — is an example of laying the groundwork during the pre-election phase for what could become post-election challenges if the race is close.
What made the Big Lie of rampant noncitizen voting especially dangerous is that it was designed to create a pretext for post-election legal and political arguments as to why certain categories of already-cast ballots and perhaps entire election results should somehow be voided or disregarded.
With two acts left to go, we’re by no means out of the woods yet. But Act I carried a particular risk that we’ve largely managed to dodge. Let’s talk about that next.
Bullet Dodged
The pre-election legal wrangling of Act I is particularly important because it is the phase most likely to result in changes to election processes and procedures nationwide.
That was especially true given the Trump administration’s concerted effort to use the supposed threat of noncitizen voters to impose sweeping national impediments to voting, like interposing the U.S. Postal Service as a chokepoint for mail-in ballots or requiring election officials to set aside and not count mail-in ballots based on dubious lists of noncitizen voters.
Any wins in court on those fronts would have potentially affected voters everywhere. Even a single win in one court would have buttressed subsequent efforts to make the same on-the-fly changes to processes and procedures in additional jurisdictions.
Act I is different in that way. By the time you get to Acts II and III, the legal battles are being fought mostly on the margins: individual races that are close and where it’s worth contesting every single vote that has been cast. The constellation of tight races worth litigating in Act III is invariably smaller than the entire pre-election playing field was in Act I. So while Act III can determine the ultimate outcomes — who wins and who gets control of the House and Senate — the impact on voters everywhere is more circumscribed.
We’re just nearing the end of Act I, and there’s still a long way to go. But the big, ugly attempted intrusions by the Trump administration have so far been repelled. And, while I say this guardedly, there’s just not much time left for the administration to parlay any wins it does manage in court over the next 72 hours into dramatic nationwide changes on the ground before Election Day.
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Thank you for an impressive prècis of the midterms state of play, and the fact that the curtains have rung down on Acts I and II, with scathing critic reviews, and Act III looks to be suffering from poor advance sales, but will open regardless. Last gasp of a dying regime.
One lives in hope.