Appeals Court Blocks DOJ Demand to Set Aside Ballots

A federal appeals court on Monday barred the Justice Department from requiring California election officials to set aside 20,000 ballots that the department claimed noncitizens had cast. On Tuesday, while California voters returned mail-in ballots, U.S. District Judge David Carter prepared to hear the case. The state’s election machinery—and the people whose ballots it handles—now sit inside a federal fight over who decides which votes count.

Former Attorney General Eric Holder told CNN on Tuesday that the administration was trying to discourage people from trusting the system and voting. “They’re just throwing all of this stuff out there in an attempt to discourage people from believing in the system and trying to discourage people from coming out and registering them to vote, and then actually voting themselves,” he said. Holder added that the actions “could have been easily done after the election, consistent with the way in which the Justice Department normally operates.”

Who Gets to Police the Ballot

The Justice Department said it made “no apology for protecting those votes.” A spokesperson argued that requiring action against noncitizens wasn’t election interference, saying: “Enforcing election law right before an election is exactly when it matters most and voters deserve to know their elections are being protected.” The department’s demand would have put California election officials in the position of setting aside ballots before the judge heard the dispute.

The department also asked Washington State's secretary of state to review a list of more than 400 registered voters it believes could be noncitizens. The Trump administration directed the Department of Homeland Security to look for noncitizens on voting rolls in states. Broad powers now target local election systems. Voters are left to navigate the uncertainty.

In Alaska, the Justice Department filed a lawsuit last week that could block certification of the U.S. Senate race if Republican Sen. Dan Sullivan loses reelection. The lawsuit alleges that former Rep. Mary Peltola, a Democrat from Alaska, could win because voters were confused by the presence of Dan J. Sullivan on the ballot. Sullivan and Peltola advanced to the general election under the state's ranked choice voting system. Trump told reporters he directed the department to pursue the lawsuit.

“If They’re Honest Elections”

Trump said Tuesday, Oct. 27, that he would respect the results of the Nov. 3 midterms “if they're honest elections.” Asked whether he would accept the outcome regardless of the result, he repeated: “I will if they're honest elections.” He acknowledged Republicans could lose control of both chambers of Congress and said he would often use his veto pen if Democrats took control. Voters cast ballots. The president keeps the veto.

Trump has repeatedly accused Democrats of cheating without presenting evidence. In July, he alleged broad vulnerabilities in voting systems and possible interference by other nations in a primetime address. This week, he announced his administration would pay $1 million to anyone whose report of voter fraud in U.S. elections, past or in the midterms, results in an arrest or conviction. He has criticized mail-in voting as corrupt and issued an executive order seeking federal control over mail ballots; the Supreme Court stopped the U.S. Postal Service from implementing the new rules for this election.

Trump hasn’t ruled out declaring a national emergency around the midterms or invoking the Insurrection Act, which allows the president to deploy the military within the United States during civil disorder. At the end of his first term, he worked to overturn the 2020 election results, which he lost; that effort culminated in the Jan. 6, 2021, storming of the U.S. Capitol by a mob of his supporters. He continues to make unsubstantiated allegations that the election was stolen from him. In September 2020, then-White House Press Secretary Kayleigh McEnany said: “The president will accept the results of a free and fair election.”

Institutional Pushback, Institutional Limits

Democrats are preparing for possible interference and challenges to results if Republicans win widely. Sen. Tina Smith, a Democrat from Minnesota, accused Trump of “blatantly laying the groundwork to steal an election.” Trump wrote on TruthSocial that his administration was “watching closely” for voter fraud in Minnesota's Senate race between Republican Michele Tafoya and Democrat Lt. Gov. Peggy Flanagan. Minnesota is among the few states where Republicans could potentially pick up a Senate seat. Recent polls show Flanagan narrowly leading Tafoya.

The Democratic National Committee said it had staff in more than 35 states to train and support election observers, and that its in-house litigation team was working to challenge attacks on voting rights. Rachel Jacobs, a senior partner at the Democratic-aligned Elias Law Group, said the firm was ready to respond after the election and ensure officials certified results according to voters’ will. These are organized legal and party responses, not a community-run alternative to the institutions being contested. Ballots remain in officials’ and courts’ hands, while party organizations prepare to fight over the rules those institutions enforce.