With the November midterm elections just days away, the Justice Department ended this week by launching its most desperate and unprofessional attacks on the American electoral system. On Thursday, the DOJ filed an absurd lawsuit aimed at blocking the declaration of the winner of Alaska’s U.S. Senate race until the courts challenge the eligibility of one of its candidates. This comes on the same day as a bold effort by the DOJ to preemptively bring a California election case to higher courts before the lower courts even had a chance to hold a hearing.
Continued executive branch interference in elections has not been deterred by zero for 26 cases seeking unredacted state voter rolls and a crushing defeat at the Supreme Court in a case that would have ended mail-in voting in this election. From Alaska to California and who knows where else, the DOJ has filed complaints to interfere with how states count and certify votes. The agency’s latest moves – as fact-less as they are legally meaningless – demonstrate that for all the fear that the Justice Department will go in with guns blazing to try to overturn the election results, it is very likely to fire blanks.
The main reason the DOJ has lost election-related cases is that the Constitution does not give the president or the executive branch a role in running elections. This question is left to the states, subject to legislation from Congress which may change the rules of federal elections. So when President Donald Trump issued an executive order in March 2025 shortly after returning to office that would have changed the federal voter registration form (mandated by Congress) to require that it be accompanied by documentary proof of citizenship like a birth certificate, a federal court shut it down. He ruled that “Simply put, our Constitution does not permit the President to impose unilateral changes to federal election procedures. » And when the USPS followed Trump’s second executive order by announcing a rule that would have made the agency a federal gatekeeper of states’ mail-in votes, the Supreme Court ruled that the USPS stood to lose on the merits because its influence over state election processes exceeded its power.
The DOJ’s latest moves in California and Alaska are even weaker than the DOJ’s previous attempts to assert its power over elections. In California, the Justice Department demanded that California and Los Angeles County review a list of 20,000 people of what it called “probable” or “suspected” noncitizens (it hesitated on what to call them), remove their absentee ballots from the pile and separate them so they would not be counted. He first provided the information on a USB stick with the password on a Post-it note. After California officials complained that using such a drive would violate security protocols – would you insert a Trump-issued USB drive into your PC? – they provided a spreadsheet.
The spreadsheet appears wildly inaccurate; more than half of a sample of 200 people examined by the county were unregistered individuals, and many were born in the United States — a strong indicator that they are citizens. It’s no surprise. As I recently reported in Slate:
When the Department of Homeland Security made unsubstantiated claims that states were allowing thousands of noncitizens to remain registered to vote, state and local election administrators demanded proof. After Nevada obtained the data and conducted an investigation, DHS’s list of 16,000 potentially ineligible Nevada voters dropped to zero.
Its legal arguments are even weaker than the DOJ’s factual assertions. The sole basis on which the DOJ sought this extraordinary relief from California was a federal law that criminalizes a non-citizen’s right to vote in an election. This law gives the federal government no right to tell California what it can or cannot do when counting ballots, and indeed another federal law, the National Voter Registration Act of 1993, prohibits states from systematically removing ineligible voters in the 90 days before an election. This is to prevent the inadvertent disenfranchisement of eligible voters.
Undeterred by the legal and factual weakness of the case, the DOJ asked a federal district court to issue a temporary restraining order to force Los Angeles County to segregate these ballots. The district court has scheduled a hearing on the motion for next Tuesday. The DOJ then “requested” that the court rule at noon on Thursday. When this was not the case, the DOJ attempted to appeal the non-decision to the United States Court of Appeals on the 9th.th Circuit. It was a Hail Mary procedural document in a substantive case. TROs are not appealable and the judge hasn’t even ruled yet, so there is no order allowing for an appeal. The DOJ is attempting a roundabout attempt at “mandamus,” a court order to a lower court or other government official to force them to do something they have been slow to do. Except the California District Court barely had time to review the case, so claiming it was dilatory is a shocking abuse of the court’s role. This is unlikely to succeed, but the case will likely end up in the Supreme Court.
The same day the DOJ requested the TRO, it announced with great fanfare that it was arresting 28 people for violating the federal non-citizen voting law. They gave the New York Post an exclusive look at a pre-dawn raid with helicopters and armed federal agents to arrest an elderly Trump-supporting man who recently underwent six surgeries. This political theater was a show of force intended to create the impression of a scourge of non-citizen voting.
Things are even weirder in Alaska. On Thursday, Attorney General Todd Blanche told reporters that the DOJ would not get involved in how states count votes and certify elections absent a “doomsday scenario.” But on the same day, the DOJ sought to block certification of the winner of Alaska’s U.S. Senate vote, which (of course) didn’t even hold its vote. He argued that Alaska was somehow violating federal law by allowing a second candidate named Dan Sullivan to run against the incumbent of the same name, Democrat Mary Peltola. (The federal government previously convened a grand jury to consider the criminal charges against the second Dan Sullivan.)
The DOJ has no authority to decide which candidates can appear on the ballot. The only reason the Justice Department gives for attempting to block the state’s certification process is the preamble to the National Voter Registration Act, which states that the law is designed to “protect the integrity of the election process.” Of course, this preamble gives no authority to the federal government to do anything. It does not give the DOJ the authority to determine ballot access or block certification of a federal election. The Alaska Supreme Court ruled on the issue of ballot access under state law in June, allowing the second Sullivan to appear on the ballot.
The Justice Department’s work in the Alaska case was so poor that it made the most absurd typo possible in its prayer for relief. The DOJ asked:
Defendants to certify any results that may be influenced by voter confusion, as defined above, pending an investigation into whether votes cast for Daniel J. Sullivan were intended to be cast for Senator Sullivan.
Note the absence of a verb specifying what the Trump administration is actually asking a judge to do, which is to issue a “freezing” injunction.
Suffice it to say that the best and the brightest do not litigate these cases before the DOJ, and they are both likely to fail, or even fail badly. To say that these are press releases disguised as legal proceedings does not reflect the legal weakness of these cases. Perhaps they are simply meant to please Donald Trump in his crusade against voter fraud, or to remind Alaska voters of the two Dan Sullivans on the ballot. These are not serious legal documents.
Of the many things that could go wrong in November, what worries me most is that the DOJ seeks to interfere with the tabulation and certification process, especially in a place like Alaska, which could determine which party controls the U.S. Senate. The situation in Alaska is particularly frightening. Due to its complex voting procedures, strange time zone and remote location, counting all the ballots in Alaska can take a particularly long time in normal years. It is these types of delays that Trump has exploited in the past to most successfully attack elections, particularly the COVID-delayed election count of 2020. I am particularly concerned that the DOJ may attempt to seize ballots or voting machines.
But these latest lawsuits show that the DOJ has an exceptionally weak hand when it comes to legal grounds for election interference, and that it is playing its hand wrong. If they were my election law students, they would fail the class. Although thousands of lawyers across the country are rightly preparing for a possible Trump-inspired federal attack challenging the election results, the Justice Department’s blatant incompetence puts me in further danger. ease.
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