Austin Sarat ScheerPost
Elections are supposed to be decided at the ballot box. And the right to vote has long been recognized as the basis of all other rights.
As far back as 1886, the United States Supreme Court called voting “a fundamental political right, because (it is) preservative of all rights.” Fast forward to 1964 when the Court reiterated that “[t]he right to vote . . . is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”
And, as Professor Bertrall Ross explains, “Without a fundamental right to vote, republican government will be significantly threatened by partisan efforts to manipulate and distort it.”
In Donald Trump’s America, we can never know who or what will decide an election: voters, judges, rioters, or a presidential administration determined to ensure elections come out the way it wants.
In the last few days, the administration has taken unprecedented actions to influence the midterm election results. At a time when many Americans want to use their votes to deliver a no-confidence vote in the president and his policies, while he blusters about fraud and rigged elections, we need to go to the polls in record numbers to deliver our message with unmistakable clarity.
We need to vote as if the future of freedom and democracy depended on it.
On October 22, the administration launched a double-barreled assault on the right to vote in this country. What it did thwarts law and precedent and threatens to sow chaos and confusion in the mid-term election.
First, it filed a truly bizarre suit in the Federal District Court in Alaska, asking it to prevent the certification of the contest for the United States Senate, citing potential voter confusion arising from the fact that there are two people on the ballot with very similar names, incumbent Senator Dan S. Sullivan and Daniel J. Sullivan. It alleges that “Daniel J. Sullivan decided to run for Senator in 2026 as a Republican with the intention of misleading supporters of Senator Sullivan into voting for him. The sole purpose of his candidacy is to benefit the Peltola campaign by reducing the number of votes for Senator Sullivan.”
The suit argues, among other things, that Daniel J. Sullivan’s “public campaign website … uses a format, color scheme and overall theme similar to the public website for Senator Sullivan’s campaign … This again suggests an intention not to distinguish yourself from the incumbent Senator as any candidate genuinely seeking office would do, but to confuse Alaskans as to which ‘Dan Sullivan’ is which.”
The Trump Administration claims authority to control how candidates are listed on the ballot, or whether they can be, under the National Voter Registration Act. But, as the Justice Department’s own website explains, the act “sets forth certain voter registration requirements with respect to elections for federal office.”
Not a word about who can and cannot be on a ballot or about confusion in an election.
The New York Times observes that “No obvious legal authority supports a pre-emptive effort to block the certification of Alaska’s Senate election if the Republican incumbent narrowly loses.”
The lawsuit “claimed the department can sue to force the state to fulfill a duty it claims the act imposes on state officials to ‘protect the integrity of the electoral process.’ But the lawsuit takes that vague phrase out of context. It is part of the act’s preamble, which explains the law’s purpose but does not itself carry any affirmative legal force.”
The Times quotes election expert Richard Hasen, who calls the Justice Department lawsuit “’the worst complaint I’ve ever seen.’”
As baseless as the Alaska lawsuit seems, it indicates the lengths to which the administration will go to gum up the works in the 2026 election.
If Alaska was the part one of the administration’s assault, it didn’t take long for it to launch the next one.
On October 23, as the New York Times reports, “The Department of Justice sent,,, to local election officials across California demanding that they help identify potential noncitizens on their voter rolls and set aside their ballots. The letter — sent to every county in the state… also said local officials would ‘risk significant federal scrutiny’ if they failed to comply with the Justice Department’s demands.”
Threatening election officials only serves the administration’s bizarre strategy of interfering in elections in the name of election integrity. California is a convenient target.
The Los Angeles County Registrar, Dean Logan, called the letter an effort at “intimidation.” It “misrepresents the facts…attempts to tarnish the secretary of state and Los Angeles County, and threatens local election officials” days before the election.”
The Times notes that the letter is part of, what it calls, a Trump administration “blitz of initiatives aimed at unearthing evidence of noncitizen voting or stalling election processes in states where it has dubiously claimed that large numbers of noncitizens were registered to vote or were regularly voting.”
The October 23 letter was sent a week after the Department filed suit in the United States District Court for the Central District of California, seeking an order preventing state election officials from counting the votes of 20,000 people it claims are not U.S. citizens and therefore ineligible to vote.
The suit alleged that these noncitizens “were sent a vote-by-mail ballot from California to participate in the federal election. The Federal Government asked California to review the list and, in partnership with federal agencies, to determine whether citizens were listed. If California was unable to independently confirm the citizenship of people on that list, the Federal Government asked that California set aside ballots received from them until the person’s citizenship was confirmed… California failed to do so.”
The Justice Department described what it was seeking as “commonplace election relief.”
But there is nothing commonplace about it.
First, coming a mere two and a half weeks before election day, it violated a longstanding norm that the department refrains from taking any action so close to an election, lest such an action might unduly influence the results. As the department’s Justice Manual states, “Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.“
Disqualifying voters would surely affect what happens in California on November 3 and is designed to put a thumb on the scales.
The suit asserts that the federal government has broad power to ensure election integrity. That is hard to square with the constitutional design, and California Secretary of State Shirley Weber is right to say that the Trump Administration is “demanding unprecedented measures that threaten thousands of Californians’ right to vote….”
Every American can respond to those measures by voting and providing margins of victory to candidates who will resist the Trump Administration’s ongoing assault on democracy. that are, to borrow the president’s own phrase, “Too big to rig.”
Austin Sarat
Austin D. Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is an internationally renowned scholar whose interdisciplinary work examines law in relation to culture, violence, and the liberal arts. His academic foundation includes a B.A. from Providence College (1969), an M.A. (1970) and Ph.D. (1973) from the University of Wisconsin, and a J.D. from Yale Law School (1988). He has also received honorary degrees, including an LL.D. from Providence College (2008) and an A.M. from Amherst College (1984). Sarat has also been awarded the Jeffrey B. Ferguson Memorial Teaching Prize at Amherst in 2022 and the Ronald Pipkin Service Award as well as many others.
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