DOJ's Weak Election-Interference Suits Suggest It Is Likely to Fail, Though Still Dangerous
Source: Richard L. Hasen. "2026 midterm news: DOJ telegraphs Alaska as Trump’s top election target.." October 23, 2026. slate.com
The Gist
The author says the Justice Department is filing sloppy, baseless lawsuits to interfere with this year's elections in Alaska and California. Because the Constitution leaves elections to the states and DOJ keeps losing in court, he thinks the department is unlikely to succeed. He remains worried about other tactics, like seizing ballots, but finds the department's incompetence somewhat reassuring.
Conclusion
Despite the real danger of DOJ interfering with vote counting and certification in the 2026 midterms, its latest lawsuits in Alaska and California are so factually unsupported and legally vacuous that DOJ is likely to fail, so its election interference is more likely to 'shoot blanks' than to overturn results.
Premises
- The Constitution gives the president and executive branch no role in running elections; that power belongs to the states, subject to congressional legislation.
- Courts have consistently rejected executive attempts to assert control over elections: DOJ is reportedly 0 for 26 in suits seeking unredacted state voter lists, a federal court struck down Trump's proof-of-citizenship executive order, and the Supreme Court ruled against the USPS mail-ballot rule.
- DOJ's California case rests on factually unreliable data: the list of 20,000 'suspected' noncitizens was wildly inaccurate (over half of a 200-person sample were unregistered, and many were U.S.-born), and similar DHS claims in Nevada fell from 16,000 to zero.
- DOJ's legal theories are vacuous: a criminal statute on noncitizen voting gives no power to direct ballot counting, the NVRA actually bars systematic removals within 90 days of an election, and the NVRA preamble about 'electoral integrity' grants no authority to block ballot access or certification.
- DOJ's litigation conduct is sloppy and procedurally improper, including seeking an appeal of a non-existent ruling, a back-door mandamus attempt, a typo-laden prayer for relief in Alaska, and re-litigating a ballot-access issue the Alaska Supreme Court already decided.
- The filings appear to be political theater (press releases masquerading as lawsuits, publicized arrests and raids) rather than serious legal efforts.
Assumptions
- Courts will continue to apply existing law and constitutional structure faithfully, including at the Supreme Court level.
- Past litigation losses and poor legal quality are good predictors of future DOJ failure in election cases.
- Legal weakness translates into limited practical harm; DOJ will not succeed through non-legal means or through delay and confusion.
- The DOJ filings are representative of the department's overall capacity and strategy on elections.
- The author's characterization of DOJ's motives (political theater) and legal arguments is accurate.