The panel was titled “When Washington Comes Knocking: Federal Government Involvement in the 2026 Election.” But according to the panelists at the Harvard Law School session on Oct. 15, Washington already has knocked and let itself in, and the effects on the nation’s midterm elections could be unprecedented.
Moderated by Assistant Clinical Professor and Election Law Clinic director Ruth Greenwood, the panel examined recent attempts by the Trump administration to involve itself in the electoral process through executive orders, search warrants, and subpoenas of voter rolls and other election materials. The panel, presented by the Equal Democracy Project and Harvard’s Election Law Clinic, proved especially timely as news broke during the talk that the Department of Justice had sued the state of California over a thumb drive that allegedly contains the names of noncitizens who were sent ballots.
The expanding federal role in elections
Larry Schwartztol, who directs Harvard’s Democracy and the Rule of Law Clinic, noted that the executive branch’s authority in congressional elections has traditionally been “narrow, targeted, and specific, and all contingent on a grant of authority through Congress.” Yet the current administration has taken unprecedented steps to expand its role.
“President Trump has framed his efforts in this context by saying explicitly that one of the things that he wants to do is nationalize the administration of this election,” said Schwartztol. Those efforts, he said, include executive orders that would “totally overhaul the way states manage the vote-by-mail process.”
He cited the Justice Department’s request, accompanied in some cases by lawsuits, that all 50 states turn over their voter rolls — including voters’ Social Security numbers and other sensitive materials — “so that the federal government can federalize the process … using what we know to be unreliable methodologies to identify potentially ineligible voters, and attempting to force states to remove those voters.”
Further, Schwartztol noted, the Federal Emergency Management Agency (FEMA) has threatened to make future disaster relief funding contingent on states’ enforcement of voting policies. “These efforts by the executive branch to insert itself into the midterm elections are potentially quite harmful,” Schwartztol said. So far, the direct effects of those efforts have been “pretty limited” because the courts have “put up a red light.”
The Supreme Court blocked some of the administration’s proposed limits on mail voting last month in United States Postal Service, et al. v. California. Yet he suggested that the indirect effects of these orders may be more worrisome. He said they pose the risk of disenfranchising significant numbers of eligible voters, intimidating election workers through threat of prosecution, propagating a “corrosive narrative” around election integrity, and creating “mass confusion among elected officials and voters.”
Erosion of DOJ guardrails
Chelsea Rice, senior counsel in the Rule of Law Program at States United Democracy Center, also noted the expansion of the Department of Justice’s role in elections, saying it is being used to “undermine voters’ confidence in elections, to target certain states and jurisdictions, and really completely eliminate many policies and norms that were in place.”
In the past, she said, investigation of public officials — including corruption and election investigations — would go through the Public Integrity Section of the Department of Justice, which was staffed by attorneys who specialized in such cases, and protocols would be consistent for each of the states. Numerous requirements would need to be satisfied before a search warrant was granted.
However, she said Public Integrity was “essentially eliminated” by this administration. Though it still exists on paper, the normative approval requirements are no longer in place. “What that means,” she said, “is that [the dismantling of] these inherent guardrails and internal checking on DOJ themselves are putting judges in a situation where they are going to see search warrants coming before them that they’ve not seen before.” One example, she said, was the FBI’s January raid on the election office of Fulton County, Georgia, which so far has failed to find evidence of 2020 election fraud in Democratic presidential candidate Joe Biden’s favor. The recent search of the home of U.S. Rep. Ilhan Omar, she said, is “another example of a norm going out the window.”
Rice said she found the California case particularly concerning. The letter sent last week to California Secretary of State Shirley Weber, and signed by Acting Deputy Attorney General Trent McCotter, alleged that the state had 190,000 noncitizens on its voter rolls, but did not provide evidence. (California does not allow noncitizens to vote.) The state was ordered to withhold mail-in ballots from anyone on a list whose citizenship could not be verified within 48 hours; the Justice Department sued California two days after sending the letter.
“The fact that this letter was signed by the deputy attorney general is quite chilling and stunning, and completely out of line with anything that would have happened with previous deputy attorneys general under any administration,” Rice said.
Reasons for confidence in election safeguards
Yet former Maricopa County Recorder Stephen Richer brought a more upbeat view. “It’s going to be OK; we’re going to get through it. Election administrators have come through a lot of stuff in the past 10 years. … A lot of this is noise and a lot of it leads to some really ugly stuff online, including physical confrontations.”
Richer’s own county was subject to a controversial investigation in 2021, when Republicans in the Arizona State Senate enlisted a company called Cyber Ninjas to examine every ballot cast there in the 2020 election. The highly publicized audit only confirmed that Biden had won. The system, he said, has since become disaggregated enough that only one third of citizens vote on Election Day, rather than early or by mail.
“So, if you’re talking about a lot of fears that have been in the ether, such as ICE showing up on Election Day — not great, but not the payoff that would have existed even 15 years ago,” he said.
Greenwood pressed Richer on his faith in the courts, despite the Trump administration’s efforts to challenge elections. He responded that the Supreme Court has generally not been friendly to stolen-election theories, and that is not likely to change — which he said is a good thing due to the rarity of actual fraud.
“Is going back and finding someone who was here lawfully but wasn’t a citizen, who voted in the primary in 2012, in the state of Utah where there’s 2.1 million registered voters, is that the best resource of time? You can see my skepticism.”
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