THE NIGHTMARE AHEAD, PART TWO: TRUMP SEEKS TO STEAL THE ELECTION IN FRONT OF THE COURTS AND THE NATION

At a July 2026 judicial conference, Supreme Court Justice Elena Kagan, while acknowledging the current United States Supreme Court is very conservative, still said, “is this court kind of a puppet for the current administration? I think definitely not.” 

This fall, we will find out if she was right as the midterm elections become engulfed in litigation, probably in dozens of elections, and a rush of appeals of Federal District and Appeals Court decisions arrive in the United States Supreme Court. The Court will either protect counting the ballots with integrity or allow the Trump administration to disrupt the elections and enable the Republican majorities in the House and Senate to stay in power.

The nation will get a good look at which way the Supreme Court is going because it will soon rule on a Trump administration emergency appeal of injunctions by a Federal district court in Massachusetts. That court ruled against President Trump’s March 2026 Executive Order requiring the United States Postal Service to only send mail-in ballots to people on lists of voters approved by Trump’s Department of Homeland Security. 

Since both early voting and mail ballot applications will begin within weeks in many states across the country, there can’t really be any delay in determining whether states will be forced to comply with the President’s order. (I wrote about both the 2026 Executive Order, and an earlier one in 2025, in my May 2026 blog post.)

The lower court rulings on both orders essentially say the same thing, that the Constitution gives no power to the President to control elections, reserving those powers to the States and Congress. To interfere with election administration now, so close to the election, also violates another Supreme Court precedent that election rules should not be changed so close to an election, 

The Supreme Court allowing the Trump administration to gain control of mail ballots in the coming days would be a disaster and a prelude of worse to come.

Regardless of how the Court rules on the mail ballot case, election interference by the Trump administration will escalate in the days leading up to the election and beyond. 

Claiming non-citizens are voting in district after district, from Los Angeles to Houston, the Justice Department will issue search warrants to seize ballots and voting equipment, including the chips in the election machines where the results are stored and calculated. State and local election officials could be arrested for allowing noncitizens to vote, and charged with conspiracy to steal the election. Other claims that mail ballots are permeated with fraud, will also be used to seize ballots and equipment. And the Administration will claim old-fashioned cheating, that Democratic election inspectors are falsifying ballots in Fulton County, Georgia that require ballot seizures, or that foreign interference, like Iran helping Michigan Democratic Senate candidate Abdul El-Sayed alter votes in Arab-American areas of Dearborn, necessitate blocking the vote counts there.

The Justice Department will need warrants issued by Federal magistrate judges, alleging probable cause there is evidence of crime, to have the FBI seize the ballots in Congressional and Senate races across the country. But the loss of chain-of-custody of ballots by state and local officials, who are required by law to supervise the counting of the ballots and will be unable to if they are in FBI or US Attorney locations, may prevent the certification of the winners. If Trump blocks dozens of Democratic House winners from being certified, the House of Representatives will end up seating a Republican majority with vacant seats even if Democrats would actually have won. Or prevent Jon Ossoff in Georgia from being seated in the Senate.

How can irreparable damage to the counts of the ballots be avoided? 

In Scotus Blog, Edward Foley writes that a 1972 Supreme Court case, Roudebush v. Hartke, held that a recount in a Senate election could only be conducted if it would not impair the ultimate authority in the US Constitution for that chamber to determine who should be seated. Logically then, the decision means that “federal investigations of election crimes cannot impair this constitutionally designated congressional power. “The blog further cites a podcast by UCLA election law professor Richard Hasen,  who “suggested that state election administrators and candidates file lawsuits in advance of the election seeking to enjoin the FBI from interfering with the steps necessary their congressional elections.”

It’s not possible to speculate about the success of such lawsuits, and Federal magistrate judges will be the first line of defense in reviewing search warrant applications to seize election records..

In Just Security, an online law and policy journal, John Kelley and Chelsea Rice review the issues presented and cite the Edley Center on Law and Democracy, which has posted a set of election information materials for judges to help them “apply heightened scrutiny to applications for search warrants for state and local election records …(which)should be narrowly limited to permit only inspection, reproduction, or copying of election materials and should explicitly prohibit depriving state and local election officials of custody and control of these materials.” To do so would enable the counting and certification of the results of the elections to proceed.

The magistrate judges also need to scrutinize whether the seizure of election records meets the Supreme Court standards for probable cause – evidence of a crime. The Edley Center for Law and Democracy has outlined what the magistrates should look for:

1) Many elections crimes require “willful” violations. Is there sufficient evidence in the affidavit of concealment or other indicia of intent?

2) Is the warrant sufficiently particular to the alleged crime, or for example, does it seek a sweeping seizure of all ballots or voting equipment at a location?  Are the materials to be seized covered by the statutes at issue?

3) Every state has numerous safeguards in place to prevent fraud and errors in elections. What evidence has federal law enforcement proffered to demonstrate that state safeguards were not in place and/or protocols and procedures were not followed? 

4) Have state or county election officials previously investigated the alleged criminal activity? If so, what were the results of the state or county investigation? If not, has federal law enforcement notified state or county election officials of the federal investigation, and what was their response?

5) Is there sufficient information for a magistrate judge to make an independent determination about probable cause, rather than simply ratifying law enforcement’s conclusions? If the warrant meets the probable cause standard, the judge can narrow the scope to only permit copying of records.

There will be fights about certifying the results, but another hurdle will remain in the House of Representatives as Jeffrey Toobin has written in the New York Times. Congressmember Joe Morelle of Rochester, New York, the ranking member of the Committee on Governmental Administration, is traveling the nation educating his colleagues about the final hurdle. The States will transmit their election results to the clerk of the House, who will enter the results in the roll of the House. The current clerk was appointed by former Speaker Nancy Pelosi, but Speaker Johnson has the authority to fire the clerk. A new clerk must be voted on by the entire House, but the outgoing Republican majority could vote in an election denier clerk who would not allow the new Democratic majority to be entered into the roll. It remains to be seen, if the Democrats have actually won the majority, whether there would be Republican votes against this abuse of power.

You can be sure that state and local election officials, the apparatus of the national Democratic Party in state after state, state attorneys general, and candidates are prepping for any scenario and are getting their court interventions ready. And case after case will move rapidly up the line to the Supreme Court this Fall, where we will find out if the Court is a puppet of the Trump administration.