Bracing for the Coming Wave of Legal Challenges to Midterm Voting

Less than two weeks from the midterms, election officials and teams of lawyers are preparing for what has become a depressingly familiar American tradition: challenges to voting. The Trump administration has been focused on voter integrity, including filing suits to take purported noncitizens off voter rolls, and attempting to collect sensitive voter data from states. Meanwhile, legal teams are gearing up for challenges to election results. We’ll talk to experts and hear your concerns.

Guests:

• Richard Hasen, Gary T. Schwartz Endowed Chair in Law, professor of political science, and director of the safeguarding democracy project, UCLA School of Law
• Sophia Lin Lakin, director, voting rights project, ACLU

This is a computer-generated transcript. While our team has reviewed it, there may be errors.

Alexis Madrigal: Welcome to Forum. I’m Alexis Madrigal. Over and over, independent researchers, Republican county elections officials, and others have found that voter fraud is a vanishingly small problem in American elections. For example, the Trump administration claimed that 15,000 voters — 16,000 in Nevada, a state where almost 1.5 million people cast ballots in the last presidential election — are noncitizens. But they did not provide evidence of that, later sending a list of 185 people to state officials. Those officials told the Trump administration that all 185 were actually citizens. The New York Times headline told the story simply: “From 16,000 to 185 to Zero: Trump’s Claims of Illegal Voting in Nevada Fizzle.”

And yet, the Trump administration continues to make accusations about widespread voter fraud and illegal voting. Today, we talk with two experts on voting and elections in this country about the state of play in our democracy ahead of the midterms. We’re joined this morning by Richard Hasen. He’s the Gary T. Schwartz Endowed Chair in Law, Professor of Political Science, and Director of the Safeguarding Democracy Project at the UCLA School of Law. Welcome.

Richard Hasen: Good to be with you.

Alexis Madrigal: We’re also joined by Sophia Lin Lakin, who’s Director of the Voting Rights Project at the ACLU. Welcome, Sophia.

Sophia Lin Lakin: Thank you for having me.

Alexis Madrigal: Rick, let’s start with the news from just yesterday. A federal judge in Northern California blocked the Department of Homeland Security from carrying out field operations to uncover voter fraud in nine states. What was DHS actually trying to do?

Richard Hasen: Well, what they say they’re trying to do is enforce a federal law that makes it a crime for noncitizens to vote in federal elections. What I think they’re actually trying to do is project the image that there’s a widespread voter fraud problem in this country and to kind of mimic the claims that President Trump has made — that noncitizens are voting in droves and affecting the outcome of elections.

But for people who are on the other side of this, many of whom likely are innocent of the charges that they’re being charged with, this looks like an act of voter intimidation. The court yesterday said that this could violate a part of the Voting Rights Act. It’s called Section 11(b), which makes it a crime to intimidate voters. I think this is the first time it’s been used against the federal government, which says a lot about the position of the federal government today. But voters need to know that they can go about their business and cast their ballots without interference from the federal government, and certainly without armed people trying to arrest them for potential crimes.

Alexis Madrigal: Sophia, what else do we know about this effort called, quote, the “Unlawful Voter Initiative”?

Sophia Lin Lakin: Well, I think Rick is absolutely right. If you announce enough lists, charges, and investigations, you create the appearance of a crisis. And here, in particular, the facts in the case demonstrated that the field operations weren’t targeting simply evidence of noncitizens, but actually looking at citizens, naturalized citizens, as possibly someone to be investigated.

So it was going very broad to try to drum up this narrative that there’s something wrong here, something that justifies what otherwise would be indefensible: this kind of chilling of voters who are just trying to have a say in our democracy. And that’s what we’re watching for. And unfortunately, many of these efforts are laying the groundwork for —

Alexis Madrigal: You know, Rick, just listening to both of you, it sounds like the important piece of this for the Trump administration is the sort of rhetorical value of tossing out these big numbers and then anticipating that the smaller numbers, or nothing that comes out of it on the other side, won’t make it back into the same kind of right-wing media circles.

Richard Hasen: I think that’s part of it, and I know we’re going to get into talking about what happened in Southern California with the arrests. But the idea that they’re sending SWAT teams and doing predawn raids with armed officers to arrest someone for a misdemeanor — yeah, certainly it’s trying to send a message.

But I think there may be another purpose as well, and this one is much more worrisome, which is that this could be trying to lay the groundwork for some kind of postelection challenges to the results of elections. I don’t think that’s likely to happen unless we have a very close election for control of the House or Senate, but certainly the predicate is being laid there that California officials and officials in other places are not doing enough to police their voter rolls, and therefore the results of the election could be suspect.

Alexis Madrigal: The DOJ has come after California, demanding that California take a supposed 20,000 noncitizens off the voting rolls. How did they actually convey this information to the state of California — who these people were, and these kinds of details?

Richard Hasen: So it’s very odd. A few months ago, the Department of Homeland Security announced that there were up to 190,000 noncitizens on the rolls in California. We didn’t hear more about that. They didn’t provide any names or any information to the state when they made that announcement.

And then, just while the election’s going on — this was just last week — the government gave a thumb drive, a portable drive to plug into your computer, with a sticky note with a password on it, and said, “Here’s the names of 20,000 potential noncitizens. We want you to go through this list and take these people — take their ballots away. Don’t mail them ballots or don’t count their ballots when they come in, and we’ll give you 48 hours to figure it out.”

I mean, just a completely unprofessional way of approaching this and a completely ridiculous demand. And I think, 49 hours after they sent that letter, they filed a lawsuit to try to force California — actually, only Los Angeles County so far — to segregate out ballots that might be from noncitizens.

California and Los Angeles have responded and said that’s against state law. It’s against a federal law called the National Voter Registration Act, which prevents purges of voters in the 90 days before the election. And it’s impractical, and we can’t do it. So this is now going to be heard by a judge down here in Southern California.

Alexis Madrigal: And just to be clear, just to lay it out for people: Obviously, you’ve been covering this area of the law for a long time. We have a fairly complicated, very local election system — counties up to the states, et cetera, et cetera. How strange is this kind of request and its actual means? Let’s say you wanted to do this — the quote-unquote right way to try to get a state to look into people who might, maybe, shouldn’t be voting. Is there a mechanism that would make sense for this, or how — just —

Richard Hasen: Sure. Yeah. So the federal government maintains a database called the SAVE database, and it’s not so accurate, but it does contain some lists of who’s counted as a citizen and a noncitizen. Some states have been using this. They’ve been voluntarily comparing their own lists to get information, and it could be a decent source for leads on trying to ferret out noncitizen voting.

We know states that have used it have not found all that much noncitizen voting. So it’s not as though you’re getting big disparities between the states. But never have I heard of anything like this, where the federal government is giving a list that’s kind of unvetted.

And, you know, the same day that they sought a temporary restraining order in the district court to force Los Angeles to segregate these ballots, they had this very public arrest — this is what I was referring to a few minutes ago. They announced 28 people who were being charged, and 11 of them were arrested, including this guy in the 5 a.m. raid who had just had six surgeries, who was a Trump supporter, who says that he didn’t register to vote, and who has relatives with the same name as his.

And this kind of points out the problem. The federal database is full of partial information. Lots of people have the same names or similar names. If you don’t have all the identifying information, the federal government cannot know if this person is a citizen or noncitizen. And so mistakes happen.

That’s exactly why the National Voter Registration Act provides that you can’t have systematic purges of voters in the 90 days before the election, because you run a significant risk of disenfranchising eligible voters. There’s a right way to do this. It’s not to do it while the election is ongoing.

Alexis Madrigal: Yeah. You mentioned these arrests in California. I guess there were 28 people arrested. So, you know, a tiny fraction. And yet there were arrests; they made a case against them. Sophia, what do you say to people who look at the arrests and say, “Aha, look at that. There were people voting who weren’t supposed to be voting”?

Sophia Lin Lakin: Well, you know, I think about when people talk about this being about election integrity. We need these really difficult barriers; we need these draconian measures of investigating everybody that’s on the rolls, all these kinds of things. And you say, “But we should be caring about whether eligible voters are able to participate in our elections, that we’re getting people who are having their say and we’re electing leaders and politicians that people want to have in office.”

If we’re creating barriers, if we’re creating these systems that maybe are catching these tiny fractions of individuals who end up on the rolls — who, by the way, study after study has demonstrated are on the rolls frequently because of administrative mistakes or human error, not for any malice, right? — if those tiny fractions of people are what we find, what kind of system are we creating?

We’re creating a system where eligible voters can’t cast their ballots. We’re creating systems that are fencing out large populations of eligible voters from being able to participate. So I say systems have mistakes. It’s great that we’re catching them. That is the point. We know the safeguards are working because we are catching them. At the same time, we need to really be thinking about not treating eligible voters as collateral in this witch hunt to solve what is a tiny, tiny problem.

Alexis Madrigal: We are talking about prospective legal challenges and real ones that the Trump administration is mounting in advance of the midterm elections. We’re joined by Sophia Lin Lakin, who’s Director of the Voting Rights Project with the ACLU. We also have Richard Hasen, Gary T. Schwartz Endowed Chair in Law, Professor of Political Science, and Director of the Safeguarding Democracy Project at UCLA School of Law. You can check out his Election Law Blog.

We want to hear from you — your concerns about voting. 866-733-6786, or [email protected]. We’ll be back with more right after the break.

Welcome back to Forum. I’m Alexis Madrigal. We’re talking about the legal challenges the Trump administration is mounting in advance of the midterm elections. We might get into what they might do afterward as well.

We’re joined by Rick Hasen from UCLA School of Law, Director of the Safeguarding Democracy Project, and Sophia Lin Lakin, Director of the Voting Rights Project at the ACLU. We want to hear from you. Have these efforts by the Trump administration made you question the integrity of our voting system? Are there people in your life who question whether our elections have integrity? Give us a call: 866-733-6786. That’s 866-733-6786. You can email [email protected]. You can find us on social media — Bluesky, Instagram, Discord, et cetera. We’re KQED Forum.

So let’s talk a little bit about the DOJ notifying counties that it intends to monitor voting in various states. Sophia, is this an unusual thing? How would you characterize this?

Sophia Lin Lakin: Well, you know, historically, the Department of Justice has had monitors and observers at polling locations. In fact, there is some statutory basis for sending them in some instances, just to, again, ensure that elections are running smoothly and that there aren’t issues coming up in places where there might have been before. And that’s why you have volunteers who are monitoring and observing polling locations as well.

But, of course, we’re living in a time where you have the Trump administration and allies of the Trump administration saying kind of concerning things about how they might be going about watching, whether there might be investigations, and other intimidating-style rhetoric accompanying this. So I think everyone is going to be on high alert and watching to make sure that these observers, these monitors, stay within the lines of both state and federal law that protect voters against voter intimidation and election interference.

There are also quite a lot of state rules that regulate where and how observers can be with respect to polling locations. So, you know, I’m not going to say that anything is going to happen, but we’re all going to be looking at it very closely and carefully.

Alexis Madrigal: Yeah. I mean, Rick, obviously, this is just the era in which I grew up, in which it felt like everyone sort of agreed that voting was a good thing and that more people should vote, not fewer. I always would have imagined that monitors like this would have been there to make sure that people were able to vote, or that there wasn’t anything — that people weren’t being denied their right to vote.

Richard Hasen: Well, sure. I mean, that has been the purpose of monitors. You can go back to the 1960s and federal agents being sent down to the South to assure that Black voters, who were enfranchised by the 15th Amendment but who were still disenfranchised de facto by local election officials, could actually vote.

The Department of Justice sent some monitors last year during the Prop 50 election, and I believe in Los Angeles County, which is the largest electoral jurisdiction in the United States, they sent two people. Those people observed the tabulation process — that’s the process by which ballots are counted after the election. And then it turned out that was a nonissue.

A thousand monitors across the entire United States is not really that many when you think about it. And because of the protections that state law provides for the voting process and the post-voting tabulation, I’m not expecting that these DOJ officials are going to do much more than just observe. Now, they might claim that they’re seeing something that’s illegal, but so far we haven’t seen anything like that when they’ve sent observers to California, New Jersey, and some other places last year.

Alexis Madrigal: Just so folks can kind of see, we’re painting this picture of the comprehensive efforts that are being conducted, or at least wide-ranging efforts here. So, Sophia, another one of those is around voter-roll data. The DOJ has filed 31 lawsuits in D.C. and 30 states seeking unredacted voter files, and you’ve been involved in challenging those efforts. What’s the government seeking? Why is it seeking it? Why are you challenging it?

Sophia Lin Lakin: Yeah, the DOJ has been seeking the full, unredacted voter files from each of these jurisdictions — these 30 states and the District of Columbia. And that would include sensitive voter data, like driver’s license numbers and partial or full Social Security numbers in some instances.

This is information that isn’t normally just turned over to anyone, and that’s a good thing for voters. I’m sure that gives them comfort. And the DOJ — I think this is very similar to what we were talking about earlier with respect to these lists of purported noncitizens or other ineligible voters on the rolls — is attempting to create a national database that has this information, where the federal government can take a look and see if they can come up with lists and numbers of purported noncitizens to either try to compel states to do something with it, like remove them, as you’re seeing in California right now, or, again, for possible investigations, like we saw with respect to the field operations we talked about, or just simply to put the numbers out in the world and suggest, as Rick mentioned, that there might be something wrong with election results if they go a way that perhaps is undesirable.

So we’ve been involved in a number of these lawsuits across the country to push back on these DOJ requests. And so far, every single court that has visited this issue or addressed it has agreed with the voters that this data should not be turned over, that this request is invalid, and dismissed those cases. So that is where it currently stands: 26 cases, 27 courts.

Alexis Madrigal: So, Rick, let’s imagine that our electoral system wasn’t being weaponized, and we didn’t have rampant election denial within the Republican Party since 2020, which has become kind of a loyalty test. Is the basic idea of a national database of voters a good thing? I mean, just trying to get a sense of whether, were this done the right way, it would be something you would support.

Richard Hasen: So the first thing to note is that the United States is unusual among advanced democracies in that we don’t have a national identity card, right? In most other countries you could think of, like Germany or Australia, they conduct national elections and automatically register all of their citizens to vote. We don’t do that in this country.

If we had a national ID number that could go with people from state to state, it would be easy. Now, there’s a lot of politics unrelated to voting, right, where people don’t want to create this kind of system. So we have this hyper-decentralized system, which diffuses power between federal, state, and local governments. And even within states, it diffuses power within counties and between the executive branch and administrators. It’s really a mess.

I wrote a book in 2012 calling for national, nonpartisan election administration. And the Trump era has convinced me that I was wrong, because I see the problem that can come from centralizing power over elections in the federal government, particularly with a Supreme Court that believes in the so-called unitary executive theory, that all executive power has to flow from the president. That’s a recipe for an executive manipulating election outcomes.

I think our democracy is too weak to support such a system. So I think we need something else. And I think creating a national database would make sense so long as the government really bears the burden of all the costs of figuring out who is a citizen and all the costs of registering voters. It shouldn’t be that eligible voters have to jump through hoops each time they move in order to register and reregister to vote.

Alexis Madrigal: Yeah. Sophia, I think this is another one of these moments where I feel like the world I grew up in is not the world that I live in, in the sense that where I grew up, in Washington State, opposition to something like a national voter ID database or a national voter database or a national ID was a right-wing issue and would have been an intense issue of liberty. How does the ACLU — and how do you — see it?

Sophia Lin Lakin: Well, we absolutely agree that, unfortunately, we live in a world right now — and this is something that the ACLU has always been somewhat concerned about, although “somewhat” might be underplaying it — the potential abuse of power wherever it comes from, whether from any sort of power or authority structure, whether it be state government, local government, or, as we’re seeing today, the federal government.

It’s very unfortunate for our democracy and our voters at this time that we’re seeing this abuse of power coming from the federal government in a way that really highlights the issues with giving that kind of control, with, as Rick has pointed out, a Supreme Court that has given us some indications that they aren’t as willing to police the excesses. Although, when we may or may not get into it, the court has policed some of the excesses this election cycle, which gives me some confidence — but again, not maybe the kind of limits that we would want to see at a time when we have, unfortunately, a federal government that’s willing to weaponize that federal government apparatus against voters.

Alexis Madrigal: Let’s bring in John in Oakland. Welcome, John.

John: I’d like to appreciate you taking the call, and I think it’s a great discussion with your panelists, a great selection of a topic. My question or my observation is, I know it’s true that many naturalized citizens who can vote actually understand our Constitution and laws far better than many, many U.S. citizens — comparable to maybe what an attorney would need to know in California to pass the California bar. And I’ll take the response offline. Appreciate it. Thank you.

Alexis Madrigal: Thank you so much. You know, Rick, I feel like I hear variations of the comment that American citizens who were just born here, born into it, don’t really have a real sense of our Constitution or civics education that maybe would be useful in some of these cases.

Richard Hasen: Yeah, I guess I have two observations here. One is that the SAVE database that we talked about — one of the flaws in it is that it’s not up to date. So some of the people who are getting flagged as noncitizens by the federal government are actually people who naturalized over the last few months or a year. And so they get mistakenly treated as criminals when, in fact, they did everything right. They waited until they were citizens and then registered to vote.

On the point about ignorance about the Constitution, I think we need to think about what voting is for. This is maybe more of a philosophical point, but you could say that voting is about making the best choice, in which case we might want to limit the franchise to people who are the most educated. Maybe only KQED listeners should be allowed to vote. And, you know, that kind of logic, I think, leads to literacy tests, leads to restrictions — or some people say voter registration should be hard because we should only let people who work hard enough and run the gauntlet be allowed to vote.

My view is that voting is allocating power among political equals, and we shouldn’t be able to decide, “You don’t speak English well enough,” or, “You can’t read,” or, “You’re not watching the PBS NewsHour,” and so you can’t vote.

So I think, yes, it would be great to have better civics education. I think it’s important to protect democracy for people to understand what our rights are and why our elections are so precious. But that can’t be a basis for deciding who votes or who doesn’t vote.

Alexis Madrigal: What a great answer. That was Richard Hasen. He is the Gary T. Schwartz Endowed Chair in Law and Professor of Political Science and Director of the Safeguarding Democracy Project at UCLA School of Law. We’re also joined by Sophia Lin Lakin, who’s Director of the Voting Rights Project at the ACLU.

We’re talking about the legal challenges the Trump administration has been mounting in advance of the midterm elections. Taking your calls if you want to join the conversation. You know, maybe there’s people in your life who question election integrity. What have they been saying to you? How do you answer them? 866-733-6786. That’s 866-733-6786. You can email [email protected]. You can find us on Bluesky, Instagram, and Discord. We’re KQED Forum in all those places.

Sophia, I wanted to ask you about mail-in ballots. You know, California is primarily a mail-in ballot state. I feel like earlier in this election cycle there was so much about mail-in ballots. And then the Supreme Court case came down, and Watson v. RNC, a 5–4 ruling, seemed to support mail-in ballots. Can you talk to us about where we are in this kind of newish front of mail-in ballots versus the RNC?

Sophia Lin Lakin: Yeah. No, I unfortunately think that mail ballots, mail-in voting, which has been a wonderful source of accessible participation for so many voters — for some of whom that’s actually the only way they’re able to participate in elections — has been under attack by the Trump administration, Trump himself, despite his using mail voting himself for quite some time now, as well as from the RNC.

It was, I imagine, a huge relief for many voters, especially voters in California, that the RNC v. Watson case came down the way it did. The ruling said that the grace period California had after Election Day for ballots that were timely cast to continue to arrive — as we know, sometimes the USPS is not as fast as we would like it to be in processing mail and getting it where it needs to be on time — means those ballots can still count.

And that’s true not just in California, but across the country in places where states have these grace periods for mail ballots. That’s good news, I think, for a place like Alaska, where mail does take quite a long time to go from one place to another just because of the size of the state and the remoteness of some of those locations.

But, you know, the Trump administration had an executive order earlier this year trying to, again, meddle in mail-voting processes by trying to turn the USPS itself into a gatekeeper of who got mail ballots at all. We, along with other organizations, as well as a coalition of states including California, which led the coalition, stood against that USPS rule that was put in place to implement this executive order from the Trump administration. The case eventually got to the Supreme Court, which left in place an injunction blocking the USPS from performing this gatekeeping role for purposes of this November election.

So what I’d like to say to everyone listening is: mail voting is safe, it’s reliable, and it’s going to operate the way it has, so you can rely on that. But I understand, unfortunately, that all of these actions around challenging mail voting and its processes have created concern and doubt among voters about whether it’s reliable, whether they can and should use it.

For those voters, I would say there are other alternatives — likely alternatives in your state, early voting, and other ways to participate. If that makes sense to you, you should go ahead and use what makes sense for you. We would recommend that people go ahead, get their ballots, get their plans in place, and vote as early as possible, because if anything goes wrong, you have a chance to fix it.

Alexis Madrigal: One listener writes in to say, “I voted by mail, but put my ballot in a ballot box at the public library. I don’t trust the post office.” Kind of one of the repercussions of this rhetoric and these legal challenges.

We’re talking about what the Trump administration has been doing in advance of the midterm elections, and what issues may arise after them. That’s coming up in the next segment. We’re joined by Sophia Lin Lakin, Director of the Voting Rights Project at the ACLU. We also have Richard Hasen, Gary T. Schwartz Endowed Chair in Law, Professor of Political Science, and Director of the Safeguarding Democracy Project at UCLA School of Law. He’s also the author of the book A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy.

Taking your questions, taking your concerns. You know the phone number: 866-733-6786. You know the email: [email protected]. I’m Alexis Madrigal. Stay tuned.

Welcome back to Forum. Alexis Madrigal here with UCLA’s Rick Hasen and the ACLU’s Sophia Lin Lakin. We’re talking about prospective legal challenges the Trump administration may mount around the midterm elections — the ones they already have, and the ones that may still be to come.

David writes in to say, “Trump is laying the groundwork for insurrection. The absence of facts supporting the attacks on California voting is not relevant to the people who are the intended recipients of the allegations. Trump told the Proud Boys to stand back and stand by because he’s prepared for the potential of reactivating a vigilante posse to seize control regardless of elections.”

I think that is one of the range of opinions, probably on the more extreme side, about what may happen after these midterm elections. We’ve been talking a lot about the rhetoric and various actions of the administration leading up to the midterms. Nonetheless, if you look at the polling data, it looks like things could go very well for Democrats.

Rick Hasen, let’s say that does happen and Democrats have a fairly big day at the polls in November. What’s the range of possibilities you can foresee for the Trump administration to try and keep a hold of the House or the Senate, even if, by the terms of the election, they have lost?

Richard Hasen: If it turns out that it’s not a close margin for control of the House or control of the Senate, I don’t think there’s really very much that the Trump administration could do, or would probably even try to do, because it would just be pointless.

My concern is, let’s say we’re talking about the Senate. The Senate is more likely to be close than the House, based on the polling and based on just the smaller number of people who are elected to those offices. Let’s say it comes down to Alaska, where, as Sophia mentioned, it takes a while for them to get the ballots and count the ballots. They also use ranked-choice voting, which means it takes longer to compute the results.

If we’re in a period after the election where we don’t know who controls the Senate, I think that’s a very dangerous period for the country. I mean, it could happen in California with the House because we take a while to call some close races here as well.

My nightmare is the potential for the Department of Justice to try to seize ballots or voting machines. The president said his regret after 2020 was not seizing voting machines, so I don’t put any possibility out of my mind. But I think the biggest factor is the margin rather than the scruples of Trump or those around him.

Alexis Madrigal: I mean, one listener on Bluesky writes, “Why aren’t we better prepared for this? It’s been about a decade that Trump and Republicans have questioned results not in their favor. This isn’t new.”

Richard Hasen: Yeah. Well, I mean, one thing is that Donald Trump is president. He controls the machinery of the federal government. Now, as Sophia mentioned, there have been case after case — those involving mail-in ballots, voter rolls, and many other things — where the courts have said the president doesn’t have a role here. But he is trying to assert a role every time and in every avenue that he can.

So I’m actually hopeful that after the 2026 midterms, Donald Trump will lose interest in elections because he won’t have anything personally at stake anymore, and maybe we can get back to some normalcy.

There are lots of things that I think, if we put Democrats and Republicans in a room and we weren’t worried about what Donald Trump thought, we could do to improve elections, to increase both the accessibility of voting as well as voting’s integrity. It’s not a zero-sum game. There’s a lot that can be done to make things better.

But right now, there was a story in the New York Times, I believe it was last week, that the president railed against the voting system on 440 days of his second term, which was about 70% of the days of the second term. In that sort of environment, there’s just no moving forward. We just have to get past this moment.

Alexis Madrigal: You know, Sophia, recently there was a Washington Post report that Trump allies were urging him to issue an executive order that used the guise of foreign interference as a way to take control over elections. I mean, we haven’t done it yet. Eleven days to the election. Do you expect anything sort of that dramatic in these last couple of weeks?

Sophia Lin Lakin: We’re living in an upside-down world at this moment, so I’d say we are prepared for just about anything. Whether I expected a different story — but I would say that the president’s record on his executive orders when it comes to voting hasn’t been very good.

As Rick has mentioned, not only was there this recent executive order related to mail voting that I chatted about earlier, but there was a prior one in March of 2025 that attempted to again take over some of the machinery of elections and add, for example, a documentary proof-of-citizenship requirement to the federal voter registration form.

And again, the courts blocked that thing very clearly, right? The Constitution is clear on this point. The president doesn’t have a role in our elections. That authority belongs to the states and Congress here. And that would remain true if he were to declare any sort of national emergency. Those national emergency powers don’t change the scope of his authority. I mean —

Alexis Madrigal: Let’s say something like that were to happen, or some other thing that tested this principle, and it goes to the Supreme Court. How do you think that would play out, Sophia?

Sophia Lin Lakin: Well, I’m hopeful that what we’ve seen so far with respect to the USPS ruling itself would indicate that the Supreme Court, too, would see these as sort of out-of-bounds, quite exotic plays that have no business interfering with our election, especially given that we’re in the midst of an election cycle itself.

So I take some of the signs that we’ve seen from the court on this as at least a suggestion that they themselves are not interested in upending the system in the ways that the president is grasping for in these quite dramatic, power-grabbing endeavors.

Alexis Madrigal: I mean, Rick, did Watson, the mail-in ballot case before the Supreme Court, give you the kind of comfort that Sophia is describing?

Richard Hasen: Watson didn’t do that. I mean, Watson was really a statutory interpretation case. I think it was an easy case. I was surprised that the court divided so closely on the question.

What gives me more confidence is a ruling back in 2020. So Ken Paxton, who’s now running for the United States Senate as a Republican candidate in Texas, filed a lawsuit directly in the Supreme Court to try to throw out the Electoral College votes of four states that had voted for Biden but that had Republican legislatures, in the hopes that these Republican legislatures would then submit alternative slates of electors. And that got no traction at the Supreme Court.

We’ve seen other cases since then, including a very important case disputing the results of the 2024 North Carolina state Supreme Court race. It certainly didn’t get the kind of attention as 2020, but it was very important. And it was a very conservative Federalist Society member, a federal district court judge in North Carolina, who shut it down.

Similarly, a very conservative judge in Philadelphia wrote an opinion in a case where Trump tried to challenge the results in Pennsylvania in 2020 and shut it down.

I think even though we see lots of divides in the courts on questions like voting rights, partisan gerrymandering, or campaign finance, when it comes to preserving free and fair elections, I think we still have a consensus in this country that the winner of a fair election should be able to take office. I mean, it’s a very low bar, but I think we’re meeting it.

Alexis Madrigal: You mentioned earlier about the Senate, that if there were a time when it wasn’t clear who had control of the Senate, that would be a dangerous time for the country. I mean, just for example, to put some meat on the scenario bones here, if in Texas, you know, Paxton or Talarico wins by a thousand votes, you’d kind of expect that either side would ask for a recount or challenge or so. How do you think that scenario might play out?

Richard Hasen: Well, so it’s normal that in a very close race, if you’re talking about a race for Senate where millions of ballots are cast and there’s a 1,000-vote difference, of course every candidate’s going to contest that. That’s normal. That would not be a sign that there’s an attempt to subvert the outcome of the election.

It’s more a situation where, imagine in California, because we take a longer time to count ballots, and we know that late-arriving ballots tend to be Democratic-leaning because Democrats tend to vote later and are more likely to vote by mail. You can imagine a situation where the vote total so far that had been announced showed that a Republican candidate had more votes counted so far, and then the Trump administration tries to seize ballots or seize machines and makes it impossible to do a full count.

Then the argument could be, well, you know, we should go with whoever was leading at the time that the counting was in the middle. I mean, that’s the kind of thing I’m talking about. That would not be normal. That’s not like a recount after all the ballots have been counted.

I think our state and local election administrators have their heads down. They’re trying to run the election. If there’s a recount because it’s a close election, they’re going to follow the rules. And I think for the most part, we can count on courts to do so as well.

Alexis Madrigal: Yeah. Do we have any indications in the various court systems about how they might react to an attempt to seize ballots or voting machines?

Richard Hasen: Well, you know, we have not had a situation in modern times where a court has approved a search warrant to seize ballots or voting machines in an election that’s still alive.

You may remember that last year, the Department of Justice was able to get a search warrant to seize ballots in Fulton County, Georgia, related to the 2020 election. So that was a dead election. It was long gone. And the search-warrant affidavit, which we saw, was full of discredited conspiracy theories that had been made about the Georgia vote being rigged in 2020.

One of the things that’s important to do, learning from that, is to educate judges. We at the Safeguarding Democracy Project put out a guide for judges: What do you do if you get a search warrant asking for ballots or voting machines? There are ways that we put forward in this document for courts to protect legitimate law-enforcement investigations while still assuring that the electoral chain of custody is preserved so that we can figure out fairly who the winner of the election is.

Alexis Madrigal: Yeah. You know, JB writes, “California needs a better system. It takes forever to get results and even longer to certify results. Why does it take forever to give results when other countries, such as Brazil, have results almost instantly?” Rick?

Richard Hasen: Well, I mean, one point here is that we vote on many things. I think in Los Angeles, we’re voting on 60-something things. That takes a long time. We also have a lot of vote-by-mail. We have a huge volume, and lots of people wait until a day or two before the election to submit their ballots. So there’s a big bottleneck.

I do think we need to improve things. California has changed its laws a little bit to make things go a little bit faster. They’ve also allocated, I think it was $40 million, to try to speed up the count.

But, you know, if we were just voting — you know, pick your party, Green Party, Libertarian Party, whatever — it could go very quickly because you only have to count one thing. And, you know, in most of these places, they have uniform systems. All the ballots look the same everywhere in the country. Again, it goes back to this decentralization. It also goes to the lack of adequate resources given to election officials to be able to move more quickly.

Alexis Madrigal: Yeah. Last kind of realm of nightmare, Rick: If the Democrats win the House, could Republicans just refuse to seat them? Is that on the table as a strategy?

Richard Hasen: So the House and Senate are different. We’re only electing a third of the Senate because senators serve six-year terms. So the Senate is a continuing body, and they can adjudicate disputes over who’s won a Senate race.

The House is different. The entire House dissolves on January 3, 2027. There is no Speaker of the House. And so the first step is figuring out who’s won elections, who gets sworn in, and can vote for Speaker of the House.

There have been a lot of scenarios spun out that Mike Johnson, before he leaves as speaker in this Congress, would appoint someone as a clerk, who would be the civil servant making the decision about who can get sworn in. If Democrats actually win and there’s no question about it, the idea that the civil servant is going to not recognize the results in a number of races in order to throw it to Republicans — I think that would be like a coup d’état. That would be politically unsalable. That would be something where I think courts could get involved and adjudicate, because the clerk is not Congress, and the clerk can be ordered to do things.

So it’s very far-fetched. If we again have a razor-thin election and there are legitimate questions about who has control of Congress, then I think there could be some manipulation at the margins in that case. But again, extremely unlikely. That’s not the kind of thing that’s keeping me up at night.

Alexis Madrigal: Somehow, we end up talking about that term autogolpe all over again. Sophia, how are you preparing for maybe some of the scenarios that seem unlikely or extreme, but that may be — you know, late at night, when Rick is asleep but I am not — you’re worried about?

Sophia Lin Lakin: Well, you know, my job is to think about all these different nightmare scenarios that other people have and make sure that we have a plan and a response, and we’re ready to go if any of them were to come to pass.

From the litigation and legal side, of course, that means having legal analysis, clients lined up, template papers ready to go in any jurisdiction where we need to go, lawyers on the ground, and the like.

But also, to your question of whether we’re prepared and how we’re preparing, much of the work to make sure that these elections go according to law, that they are completed on time, and that all the things that happen are resolved properly is preparatory work on the front end, right? Making sure that judges, as Rick has pointed out, have the information they need; county election officials have the information they need; and we’re educating voters, too, about what they need to know and what their rights are.

We have been conducting these KYR — Know Your Rights — safeguarding trainings for volunteers. We’ve had over 10,000 people attend these so far. We’ve had almost 100,000 new Democracy Defenders members — this is what we’ve been calling them — sign up with the ACLU since April.

These are people who are interested in figuring out how they can meet this movement, wanting to say, “Not on our watch.” People we can deploy and mobilize across the country to make demands of officials, peacefully demonstrate, and also just document what’s going on and let us know if there are issues that need to be resolved, either by a call to an election official, if we need to run to court, or if there needs to be a larger mobilization at play.

So we’re doing all of this work. Much of it has already been done, but we’re watching and monitoring extraordinarily carefully and ready to act at a moment’s notice.

Alexis Madrigal: Yeah. Last couple of listener comments here. One writes, “Step back and consider a point often not discussed: Why on earth would an undocumented resident risk calling attention to themselves, risking criminal prosecution and deportation, for the sake of one single vote? This makes no sense.”

Ruth writes, “While I’m concerned about the administration sending in monitors, I am more concerned about the fact that they have refused to allow international monitors access to the polls.”

Another listener says, “I have volunteered as a poll watcher in Nevada, which was a Democratic Party effort. I found the process a little boring, but also reassuring. I didn’t see any irregularities. I saw people from all parties trying to get their voices heard. Of course, in the parking lot of the library in Sparks, there was a significant Trump gathering — trucks with flags, folks expressing their support — but nothing like interference that I saw.”

The last person writes, “I miss the days when we would mostly go to the polls. I know people are busy, but I always enjoyed heading to my local polling place, seeing other people participating in the civic process, and feeling like I was getting to have my voice heard.”

So, you know, coming up in 11 days, you can go vote. We’ve been talking about the legal challenges that may be brought around these midterm elections. We’ve been joined by Rick Hasen, UCLA professor at UCLA School of Law. Thank you so much.

Richard Hasen: Thank you.

Alexis Madrigal: We’ve also been joined by Sophia Lin Lakin, Director of the Voting Rights Project at the ACLU. Thank you, Sophia.

Sophia Lin Lakin: Thank you.

Alexis Madrigal: I’m Alexis Madrigal. Thank you so much for your comments and your listenership. Stay tuned for another hour of Forum Ahead with me and Mina Kim.

Announcer: Funds for the production of Forum are provided by the Generosity Family Fund and the members of KQED.