Civil Rights Division
The first attempt broke the rules and lost. The second one follows them.
Jeffrey Wernick
The Justice Department has sued thirty states to force them to turn over voter files, including birthdates and partial Social Security numbers. It has lost all twenty-one decisions so far, before judges appointed by presidents of both parties. Homeland Security took a system built to verify immigration status for public benefits and repurposed it to screen voter rolls, running it against at least sixty-seven million voter registrations. Texas found it flagging citizens as noncitizens, with naturalized citizens the most exposed to the error. A federal judge blocked that use on June 22.
On July 9, four months before the election, the administration fired both Democratic commissioners of the Election Assistance Commission and the Republican resigned, leaving it empty. The agency Congress built after the 2000 election to certify voting systems and maintain the national registration form now has no commissioners. At least seventy-five career officials who worked on election integrity and security have been fired, reassigned, or left, replaced in part by people who had worked to reverse the 2020 result. The National Security Council’s election security group is gone. So is the Foreign Malign Influence Center. The FBI disbanded its foreign influence task force. The proposed budget zeros out the election security program at CISA.
In January, FBI agents seized hundreds of boxes of 2020 ballots and records from Fulton County, Georgia. The Director of National Intelligence was there and later told Congress that Trump personally asked her to be present. She observed the operation and put Trump on the phone with the agents running it. The Bureau then directed 260 analysts and operations specialists onto the investigation. In March, a federal grand jury subpoena compelled the Arizona Senate to turn over records from the Maricopa County audit, which had found Biden with 360 more votes than the certified count. The Director of National Intelligence obtained Puerto Rico voting machines and copies of their data for forensic analysis, and found no evidence of the foreign hacking alleged. In July the Justice Department wrote election officials in all fifty states warning of criminal liability. Utah’s Republican lieutenant governor called it bizarre behavior from the agency that is supposed to protect civil rights.
Trump has been open about the purpose. The election bill would guarantee the midterms. Terminate the filibuster and we will never lose the midterms and we will never lose the general election. Terminate it and we would have a fifty year run, which by July had become a hundred years. On the election itself: I will not say cancel the election, they should cancel the election. Eight days later: when you think of it, we should not even have an election.
Kim Lane Scheppele’s work on Hungary showed that Orban never suspended the constitution. He won a supermajority and wrote a new one. He filled the courts through valid appointments. He redrew districts by ordinary legislation. Every step passed review because every step was legal. A government that breaks the law is easy to see and loses in court. A government that rewrites the law leaves judges nothing to strike down.
The moves that had no legal authority behind them lost. Both election executive orders were struck down. The voter data demands went zero for twenty-one. The Postal Service order was blocked. The National Guard deployments were halted.
The ones that did have authority are still standing. On June 29 the Supreme Court held that statutory for-cause protection for the heads of independent agencies is unconstitutional, overruling Humphrey’s Executor. Ten days later the Election Assistance Commission was emptied. On April 29 the Court sharply narrowed Section 2 of the Voting Rights Act in Louisiana v. Callais, holding it reaches only evidence strongly supporting an inference of intentional racial disadvantage. Justice Kagan wrote that the majority had made it all but a dead letter. The next day Louisiana suspended a House primary scheduled for May 16, with early voting due to begin May 2, so the legislature could draw another map. Alabama filed emergency motions the same week and now has a map eliminating one of its two majority-Black districts. Mississippi called lawmakers back to redraw judicial districts. Mid-decade redistricting runs through ordinary state legislation. A national emergency would run through statutes Congress actually passed. None of that produces an injunction. It produces precedent.
The FCC took no action at all. The statute allows one party at most three of the five seats. The 3-2 split was never law. Presidents maintained it by pairing nominations, one from each party, and the Senate confirmed them together. Two seats have sat empty through this term. On August 7 Trump nominated the chairman’s senior counsel to one of them and left the other alone, which puts Republicans at three to one and makes the lone Democratic commissioner unable to affect any outcome. Nobody was fired. No statute was strained. No rule was rewritten. There is no plaintiff, because a president cannot be enjoined for declining to nominate someone. The nomination followed a party-line vote by that same majority to eliminate the national television ownership cap, at an agency that has been investigating media companies, in an election year.
A draft rule now circulating inside the administration would exclude undocumented immigrants from the population count that determines how many House seats each state gets, and would end the census’s collection of race and ethnicity data.
The first attempt at this failed. In 2019 the Supreme Court struck down the citizenship question, with Chief Justice Roberts finding the administration’s stated Voting Rights Act rationale contrived. Files recovered after the death of Republican redistricting strategist Thomas Hofeller showed he had concluded that drawing districts by citizen voting-age population rather than total population would be advantageous to Republicans and Non-Hispanic Whites.
An expert quoted in the reporting explains what changed. Last time they skipped important steps in the process, and that is why it was struck down. This time they are doing all the process steps, so there will not be a process argument. The first version broke the rules and lost. The second version follows them.
Nobody needs to repeal the Voting Rights Act now. The Court narrowed Section 2 in April. Ending the collection of race data removes the evidence a plaintiff would need to prove a racial gerrymander in the first place. The statute stays on the books and becomes impossible to use. Same outcome as repeal, reached through ordinary notice and comment rulemaking, with nothing for a judge to enjoin.
The apportionment provision may well lose. The Fourteenth Amendment directs that seats be apportioned by counting the whole number of persons in each state. Persons, not citizens. But the courts do not need to save the second provision, and the second provision is the one that lasts. Notice and comment rulemaking takes a year or more. The census is in 2030. There is no clock to beat.
Everything above is the documented record. It leaves out the steps that have only been floated. Troops near polling places. Federal agents at the doors. An emergency declared over foreign interference, mail voting suspended, voters ordered to register again in person. Those remain speculative, and it is tempting to set them aside as the wild end of the list.
They belong on it, because none of them would require rewriting a single law. The Insurrection Act has sat on the books since the early republic as a standing delegation permitting domestic military deployment in specified circumstances. The National Emergencies Act lets a president declare an emergency, and the operative powers come from other statutes that Congress attached to that condition and never took back. Congress built these instruments and handed them over. Invoking one is not a coup. It is compliance.
That is why the speculative steps are worse than the ones already taken, not milder. The voter file demands failed because no statute authorized them. The executive orders failed because the president was legislating. Those losses required a gap between what he wanted and what Congress had granted. Where Congress already granted it, the challenger has to establish either that the triggering determination is reviewable or that the statute does not permit what was done.
He will argue the determination is not reviewable at all. Even if a court disagrees, the calendar decides the case. A declaration issued in late October reaches a district court in days, an appeals court in weeks, and the Supreme Court on whatever schedule the Supreme Court chooses. The election happens on the first Tuesday after the first Monday in November regardless. A ruling in February that the emergency was unlawful is a historical finding, not a remedy. For practical purposes the power is unreviewable if it is used late enough, which is a reason to expect it late if it is used at all.
The courts have also built the argument for staying out. Federal judges have long been reluctant to alter election rules close to an election on the theory that late changes create confusion. That principle has protected incumbent state law for two decades. Applied to a last-minute federal emergency, it becomes a reason not to disturb whatever the administration has just done.
Scheppele calls this the Frankenstate. The individual parts are borrowed from working democracies and each one is defensible standing alone. The pathology is in how they are assembled. Both parties built this executive across decades. That is true, and it does not mean nothing new is happening. The parts are inherited. The configuration is not.
Her remedy is stronger oversight bodies. I do not believe in them. Whoever holds power next captures the body built to watch the last one. I lobbied Congress for federal accrual accounting and watched the CFO Act pass in 1990. It became form without substance inside a decade. A guard is reliable only when breach costs the guard.
Madison put control over elections in the states and Congress so that no one person could hold the machinery by which power changes hands. That was never a promise about who occupies the office. It was a limit on what the office may do. Every power described here will belong to someone else soon enough. The test of any power is whether you would hand it to the person you least want holding it, because eventually you will.
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