Walter Olson
Number 20 in our series of occasional roundups on election law and policy, focusing this time on the question of whether this year’s midterm elections will be held under normal conditions:
In a recent interview with former FBI Deputy Director Dan Bongino, President Donald Trump said, “The Republicans should say, ‘We want to take over.’ We should take over the voting, the voting in at least many — 15 places. The Republicans ought to nationalize the voting.” I should have more to say about that later today.”
FBI descends on Fulton County, Ga., election offices with a warrant to seize records from 2020 election [Associated Press, Jack Goldsmith and Bob Bauer discussion]. For more on allegations of irregularities in the county’s tabulations, see our previous roundup and this from Stephen Richer. Among multiple irregularities in the new episode are the guiding role of National Intelligence Director Tulsi Gabbard and this: “The president addressed the [FBI] agents on speakerphone, asking them questions as well as praising and thanking them for their work on the inquiry, the three people said.” [New York Times]
“Is the Administration Prepared to Deploy ICE to Police This Fall’s Elections?” [Bob Bauer] “You’re damn right,” says White House ally Steve Bannon regarding predictions of ICE officers near polling places, although federal law is explicit in banning “any troops or armed men at any place where a general or special election is held,” unless to “repel armed enemies of the United States[.]” [Politico] Another White House ally, election lawyer Cleta Mitchell, thinks invoking “national sovereignty” might suffice for Trump to invoke emergency powers and intervene in the election [video, also cited in NPR “Weekend Edition” coverage (“Local voting officials are preparing for possible federal interference in the midterms”)]
As for the administration’s rationale of curbing illegal voting by noncitizens, its own verification tools have helped confirm that such voting isn’t widespread, as we kept saying at the time [New York Times]. Related reports from Indiana (21 noncitizens found to have voted among three million voters, Indianapolis Star via ELB); Iowa (secretary of state announced finding 2,000 suspected noncitizens on rolls, but list soon began melting away, with the auditor in Linn County (Cedar Rapids) saying his office had already succeeded in confirming the citizenship of 134 of the 150 locals on the list; Macomb County outside Detroit (investigation based on jury attestations yielded 15 suspect names among 725,000, and some of those didn’t prove out, VoteBeat Michigan); Utah (review of 2.1 million on voting rolls found only one non-citizen on the rolls and that one didn’t vote, Salt Lake Tribune);
A third federal judge has rejected claims of presidential power asserted in Trump’s election executive orders last year, appeal expected [Politico] Federal judges have lately nixed Department of Justice efforts to force California and Oregon to hand over their voter rolls, in one case finding not only that the department had no legal grounds for its demand, but was barred by federal law from accepting the data even if voluntarily tendered [Justin Levitt] Meanwhile: “A DOGE employee signed an agreement to share Social Security data with the aim of overturning election results in certain states, according to a new court filing.” [Washington Post]
Prominent election law expert shares his plateful of worries: “Sending troops to block voting in some areas, seizing voting machines, pressuring election officials to illegally count or not count valid ballots, or change the vote count.… I don’t think anything is off the table.” [Richard Hasen quoted in L.A. Times, more] At their annual conference last week, state election officials project confidence they’ll withstand whatever the president throws at them next; he’s been crying fraud for what seems like ages, and courts and most of the public have seen through it [VoteBeat]
