In the closing days of a campaign for Congress where polls show his side losing, President Donald Trump and his Justice Department are filing lawsuits and opening investigations that could extend disputes well beyond Election Day.
The administration’s extraordinary attempt to cast doubt on the midterm elections, discount some ballots and prevent the finalization of results is entering a frenetic new phase.
The litigation strategy has failed so far, but appears designed to give the Justice Department more time to contest results after the election.
Trump, worried about a Democratic takeover of Congress and a third impeachment, has tilted the Justice Department away from its traditional role of easing access to the ballot and toward erecting last-minute hurdles that could prevent some people from voting. It is trying to force California to set aside thousands of ballots and Alaska to hold off on certifying the results if a Democrat wins the state’s Senate race. It has threatened to sue Washington state if it doesn’t discount ballots from hundreds of voters and suggested it may try to do the same in other states.
Administration officials have struggled in court so far, in part because the Constitution puts states — not the federal government — in charge of running elections.
“A lot of what you’re seeing is just a sort of a temper tantrum in the form of a lawsuit,” said Sam Oliker-Friedland, a former frontline voting rights litigator at the Justice Department who now leads the Institute for Responsive Government.
One of the Justice Department’s most aggressive moves is in California, where it has sued to block the counting of ballots from more than 20,000 voters who it says may be noncitizens. It has also warned election officials it could charge them with aiding and abetting illegal voting if they count the ballots of noncitizens. Last week, a federal grand jury issued subpoenas to Los Angeles County officials for emails, text messages and other communications about how it handled the Justice Department’s demands. It’s not clear whether the targets of the investigation are election officials, voters or someone else.
District U.S. Judge David O. Carter this week ruled against the department, saying its plan to set aside ballots would probably violate the Voting Rights Act, the Civil Rights Act and the National Voter Registration Act.
“It would be wise that any threats to state and county elected employees cease immediately,” Carter warned Justice Department lawyers at the end of a lengthy hearing on the eve of his decision.
His decision was upheld Friday by a panel of the Ninth Circuit Court of Appeals on a two-one vote. The majority said the Justice Department had not identified any federal authority giving it the ability to “take charge of or intervene in a state’s administration of an ongoing election.”
It was the third adverse ruling for the Justice Department in the case this week, including one in which a judge wrote that the administration’s plans could lead to electoral chaos.
Also on Friday, a federal judge in San Francisco issued a sweeping emergency order barring the department from making any further demands that election workers in California remove voters from the rolls or not count specific ballots. The ruling, which came in response to a suit from unions that represent election officials in California, also prohibited Justice Department officials from threatening to prosecute election administrators who do not accede to their orders.
“When state and local government employees perform the work of distributing, processing, or counting ballots or otherwise administering the 2026 midterm election in the manner required by their state and federal laws governing the administration of elections,” wrote U.S. District Judge Trina L. Thompson, a Biden appointee, “they do not violate federal criminal law even if a particular ballot belongs to a registered voter alleged by [the administration] to be ineligible to vote.”
Breaking the firewall
A transformation of the Justice Department began soon after Trump was sworn in last year. Top officials turned their attention to investigating the president’s political enemies, and in recent weeks have escalated such probes despite a decades-long tradition of holding off on politically charged cases in the 60 days before an election. Longtime attorneys with the Civil Rights Division — a bulwark protecting voting rights for decades — quit or were fired and were replaced with political appointees.
The Justice Department last year demanded that states turn over voter rolls that include sensitive data such as partial Social Security numbers. Most didn’t, and the Justice Department sued 30 states and Washington, D.C., for them. It has lost all 27 of the cases that have been decided so far.
Lacking the full voter rolls for California and other states, the administration has been using incomplete versions to try to find noncitizens, who are banned from voting in federal elections.
The approach is flawed and some citizens are wrongly getting tagged as noncitizens, election officials say. They are fighting the administration’s efforts because they say they fear qualified voters’ ballots could be discounted.
Since the start of Trump’s second term, the department has charged almost 200 people in 22 states with illegally voting or registering to vote as noncitizens, a fraction of the tens of millions of people who typically vote in major elections. More than 70 percent of those cases were filed in the past two months, including 18 more announced Thursday in North Carolina.
On Thursday, in another signal that disputes could stretch beyond when races get called, the Justice Department sent letters to election administrators in every state reminding them to preserve poll books and other election records and threatening prosecution if they don’t. The letters were signed by acting deputy attorney general Trent McCotter, the department’s No. 2 official.
“Cracking down on illegal voting [and] investigating these cases is not a threat to elections,” McCotter told reporters. “It’s not a threat to democracy; it’s not a threat to election officials. Exactly the opposite. We’re trying to ensure that every citizen has their vote counted, and that it’s not canceled out by someone who’s not allowed to.”
DOJ targets Alaska race
In Alaska, the Justice Department is taking a different, but no less unusual, approach. This month it sued the state to prevent it from certifying the results if Democrat Mary Peltola wins the race for Senate.
It argues voters may be confused because one candidate in the race, Dan J. Sullivan, shares a nearly identical name with the incumbent, Republican Dan S. Sullivan. On Friday, it asked a judge to order the state to segregate some ballots.
Robert Weiner, who served as senior counsel in the Civil Rights Division during President Joe Biden’s administration, said he considers the cases in Alaska and California flimsy and a “desperate” attempt to challenge results the administration does not like. The approach departs from the Justice Department’s long-standing independence from the White House, he said.
“It appears that the Justice Department follows Attorney General [Todd] Blanche’s view that he works for Trump,” said Weiner, director of voting rights for the Lawyers’ Committee for Civil Rights Under Law.
Election law experts say the administration’s attempt to potentially block certification of Alaska’s vote is based on an unprecedented interpretation of federal law. The suit relies on a novel reading of the National Voter Registration Act, a statute that governs voter registration requirements, not candidate eligibility or election administration.
Justice Department lawyers have cited a snippet of the introduction to that law that says it was passed to “protect the integrity of the electoral process” to justify its attempt to intervene in that race. If backed by the courts in the Alaska suit, that interpretation could lay the groundwork for a wave of litigation in states where the department takes issue with how the election plays out.
Using the law that way would amount to “a limitless grant of authority for federal interference in state-run elections,” attorneys representing Alaska wrote in a filing Thursday, urging a judge to reject that interpretation.
The suit calls for Alaska’s results to be put on hold if Sen. Sullivan narrowly loses so an investigation can determine whether voters intended that result. But the department has not indicated how it foresees carrying out such an investigation while protecting ballot secrecy. Alaska uses ranked-choice voting, which could further complicate any review of the results.
As the lawsuit proceeds through the courts, the Justice Department is conducting a separate criminal investigation into the origins of Dan J. Sullivan’s candidacy. That inquiry gained new life this week when the New York Times reported Peltola’s campaign was involved in recruiting him to run, which Peltola denies.
Federal prosecutors issued dozens of subpoenas and record preservation notices this week seeking access to text messages and other communications referenced in the Times report, according to a person familiar with the matter who spoke on the condition of anonymity to discuss the ongoing investigation.
While the potential targets of that investigation remain uncertain, a department official said prosecutors are exploring the possibility of civil rights charges alleging a conspiracy to deprive Alaska voters of their right to a fair election.
“Every Alaskan deserves a fair election,” Alaska’s U.S. attorney, Michael J. Heyman, told reporters Friday. “And they’re going to get one.”
Annie Gowen and Perry Stein contributed to this report.
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