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With just days to go before November’s midterms, the Department of Justice ended this week by launching its most desperate and unprofessional assaults on the American election system yet. On Thursday, the DOJ filed an absurd lawsuit seeking to block a declaration of a winner in Alaska’s U.S. Senate race until the courts relitigate the eligibility of one of its candidates. This comes the same day as an audacious DOJ effort to preemptively push a California election case to higher courts before lower courts have even had a chance to hold a hearing.
The executive branch’s continued election interference has not been deterred by going zero for 26 in cases seeking unredacted state voter lists and losing badly at the Supreme Court in a case that would have shut down mail balloting this election. From Alaska to California and who-knows-where-else, DOJ has been filing cases to interfere with how states count and certify votes. The agency’s latest moves—as factually unsupported as they are legally vacuous—demonstrate that for all the fear about DOJ coming in with guns blazing to try to overturn the results of the elections, it is most likely to be shooting blanks.
Video from Slate
The main reason that DOJ has been losing election-related lawsuits is that the Constitution does not give the president or the executive branch a role to play in running elections. That matter is left to the states, subject to Congressional legislation that can alter the rules in federal elections. So when President Donald Trump issued a March 2025 executive order soon after coming back into office that would have changed the federal voter registration form (mandated by Congress) to require it be accompanied by documentary proof of citizenship like a birth certificate, a federal court shut it down. It ruled that, “Put simply, our Constitution does not allow 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 over state mail ballots, the Supreme Court ruled that USPS was likely to lose on the merits because its muscling into state election processes exceeds its power.
DOJ’s latest moves in California and Alaska are even weaker than DOJ’s earlier attempts to assert power over elections. In California, DOJ demanded that California and Los Angeles County go through a 20,000-person list of what it termed “likely” or “suspected” noncitizens (it vacillated on what to call them), take their mail-in ballots out of the pile, and segregate them so they won’t be counted. It first provided the information on a thumb drive with the password on a post-in note. After California officials complained that using such a drive would breach security protocols—would you put a Trump-issued thumb drive into your PC?—they provided a spreadsheet.
The spreadsheet appears to be wildly inaccurate; more than half from a sample of 200 looked at by the county were people not registered, and many were U.S. born—a great indicator they are citizens. This is no surprise. As I recently recounted in Slate:
when the Department of Homeland Security made unsupported claims that states were allowing thousands of noncitizens to remain on their voting rolls, state and local election administrators demanded evidence. After Nevada got the data and investigated, the DHS list of 16,000 potentially ineligible Nevada voters fell to zero.
Even weaker than DOJ’s factual claims are its legal arguments. The sole basis that DOJ relied upon in seeking this extraordinary relief from California is a federal statute that makes it a crime for a non-citizen to vote in an election. That statute gives the federal government zero right to tell California what it can or cannot do in counting ballots, and indeed, another federal statute, the National Voter Registration Act of 1993, prohibits states from systematically removing ineligible voters in the 90 days before an election. That’s to prevent the inadvertent disenfranchisement of eligible voters.
Undeterred by the legal and factual weakness of the case, DOJ asked a federal district court to issue a temporary restraining order to make Los Angeles County segregate out those ballots. The district court set a hearing on the motion for this upcoming Tuesday. DOJ then “requested” that the court rule by noon on Thursday. When it didn’t, DOJ tried to appeal the non-ruling to the United States Court of Appeals for the Ninth Circuit. This was a Hail Mary procedural play in a Hail Mary substantive case. TROs are not appealable, and the judge has not even ruled yet, so there is no order to appeal from. DOJ is trying a back door attempt at “mandamus,” a court order to a lower court or other government official to make them do something they have been dilatory in doing. Except, the California district court has barely had time to consider the matter, so claiming it has been dilatory is a shocking abuse of the court docket. It’s not likely to fly, but soon the case will likely end up at the Supreme Court.
The same day that DOJ asked for the TRO, it announced with great fanfare that they were arresting 28 people for violating that federal statute on noncitizen voting. They gave the New York Post an exclusive look at a pre-dawn raid with helicopters and armed federal officers to take into custody a Trump-supporting elderly gentleman who recently had six surgeries. This political theater was a show of force aimed at giving the impression of a scourge of noncitizen voting.
Things are even more bizarre in Alaska. On Thursday, Attorney General Todd Blanche told reporters that DOJ would not get involved in how states tabulate votes and certify elections absent a “doomsday scenario.” But the same day, DOJ sought to block the certification of the winner in the U.S. Senate vote in Alaska, which (of course) hasn’t even held its vote. It argued that Alaska somehow was violating federal law when it allowed a second candidate named Dan Sullivan to run against the incumbent with the same name and Democrat Mary Peltola. (The federal government earlier convened a grand jury to look into criminal charges against the second Dan Sullivan.)
DOJ has no power to decide which candidates can appear on the ballot. The sole basis that DOJ asserted for trying to block the state’s certification process is the National Voter Registration Act’s preamble that reads that the act is designed to “protect the integrity of the electoral process.” That preamble of course gives no power whatsoever to the federal government to do anything. It does not give DOJ the power to determine ballot access or block certification of a federal election. The Alaska Supreme Court decided the state law ballot access question back in June, allowing the second Sullivan to appear on the ballot.
So shoddy was the DOJ’s work in the Alaska case that it made the most absurd typo possible in its prayer for relief. DOJ requested:
Defendants from certifying any result that may be impacted by voter confusion, as defined above, pending an investigation to determine whether votes cast for Daniel J. Sullivan were meant to be cast for Senator Sullivan…
Note the lack of a verb specifying what the Trump administration is actually asking a judge to do, which is to issue an injunction “blocking” certification.
Suffice it to say, the best and brightest are not litigating these cases at DOJ, and they are both likely to fail and fail badly. To say these are press releases masquerading as lawsuits does not convey how weak these cases legally are. Maybe they are just meant to please Donald Trump in his voter fraud crusade, or to remind Alaska voters of the two Dan Sullivans on the ballot. They are not serious legal documents.
Of the many things that could go wrong in November, I worry most about DOJ seeking to interfere with the tabulation and certification process, especially in a place like Alaska that may determine which party controls the United States Senate. The situation in Alaska is specifically frightening. Due to its complex voting procedures, strange time zone, and remoteness, in normal years it can take a particularly long time to count all of Alaska’s ballots. These types of delays are what Trump has seized on in the past to most successfully attack elections, specifically the COVID-delayed election counts of 2020. I am particularly concerned DOJ could try to seize ballots or voting machines.
But these latest lawsuits show that DOJ has an exceptionally weak hand when it comes to legal grounds for election interference, and they are playing their hand badly. If these were my election law students they would fail the course. Although thousands of lawyers are rightly preparing around the country for a potential Trump-inspired onslaught of federal actions challenging election results, the DOJ’s blazing incompetence puts me a little bit more at ease.