Legal scholar and law professor Leah Litman on the upcoming US midterm elections and how democracy still has a chance of surviving.

It’s fair to worry about what the chaos goblins in the White House and on the Supreme Court might do to affect the upcoming elections—deploy federal law enforcement to chill voting, interfere with ballot counting, or attempt to throw out lawfully cast votes. There’s much that the President and Supreme Court might try to do above and beyond what they have already done.

But if we the people keep our heads cool, weed out the disinformation and propaganda, and understand and insist upon the President and the Court’s limited authority over elections, we will ensure the upcoming election is as democratic as it can be under the circumstances.

What’s been done

The Supreme Court, as well as the President, has already skewed the upcoming elections. Take the massive amounts of money that are being poured into the election to assist Republicans. The world’s richest man Elon Musk has reportedly put $276 million into helping the Republican Party maintain control of the Senate, and more than $100 million in Texas alone.

The Supreme Court, and the Roberts Court in particular, made that possible by steadily dismantling campaign finance regulation ever since Citizens United v. FEC. Citizens United cleared the way for political action committees to spend unlimited amounts of money in political advertising. In the last year alone, the Court’s Republican appointees allowed political party committees such as the Republican National Committee to funnel the party’s own money to the candidates themselves directly, rather than requiring the two to be separate. That was a huge boost for Republican candidates given that the Republican National Committee is flush with cash, especially compared to the national Democratic committee. The Court even ensured that the RNC would get more bang for its bucks when it permitted the Trump-controlled Federal Communications Commission to require broadcasters to sell political advertisements at discounted rates to political parties.

The Supreme Court’s intervention in and resolution of the 2000 presidential election provides an illustration and a warning

The Court has also meaningfully shaped the distribution of political power—whose votes will count, and for how much. In September, the Court gave the Trump administration permission to use an unreliable Department of Homeland Security database to verify voters’ eligibility, which runs the risk of disenfranchising eligible voters by mistakenly identifying them as noncitizens. Before that, the Republican appointees dismantled what remained of the Voting Rights Act, clearing the way for Republican legislatures to press forward with unprecedented mid-cycle redistricting that targeted electoral and political opportunities for Black voters. That redistricting ensured that Black voters in many places, especially in the South, will never be able to elect the candidate of their choice; their votes won’t secure political power. Even before the redistricting that took place over the last year, the Republican Party had already partially inoculated itself against democracy by engaging in extreme partisan gerrymandering—drawing districts to ensure that Republicans would still win a majority of legislative seats in a state even if a majority of voters voted against them. The Roberts Court had previously immunized that kind of partisan gerrymandering from being challenged in federal courts.

What may come

Given that past is prologue, there are understandably concerns about additional attempts at election interference that might be afoot. The President has (thus far, unsuccessfully) sued several states to force them to turn over voter information so that the Trump administration can identify purportedly ineligible voters based on their unreliable methods. The administration and its allies have also floated the possibility of deploying federal law enforcement officers, perhaps immigration officers, in the lead-up to the election and on Election Day.

It is difficult to game out what unthinkable things the administration may think to try and, beyond that, what the Supreme Court might do when faced with the previously unthinkable. Based on what they have done so far, there are some important clues about what the justices might do if confronted with the deployment of federal law enforcement surrounding the election, interference with ballot counting and certification, voting rights (or anti-voting-rights) challenges to election administration as the election is underway, and anti-voting-rights challenges to the election after the fact. In brief: It will be hard to get the justices to tamp down on federal law enforcement’s general policing practices. Election officials as well as volunteers can do a lot to stop federal officers from interfering with ballot counting. Voters can also make it more difficult for the court to deploy anti-voting-rights theories by voting in large enough numbers.

Deployment of federal law enforcement. In the event the President were to deploy federal law enforcement officers, perhaps immigration officers, surrounding the election, it’s unclear what that would look like and therefore what might happen. Deploying law enforcement might mean something like the continued (egregious and abusive) escalation of immigration enforcement that is already underway, perhaps with more concentrated efforts around polling locations.

It would be difficult to challenge that kind of deployment. In the Supreme Court’s immunity decision, Trump v. United States, the Court’s Republican appointees endorsed the view that the President’s powers over law enforcement, including investigations and prosecutions, were absolute and not subject to constraint. Confirming that view, the Republican appointees opted to stay a lower court decision that had halted immigration officers from (allegedly) stopping people on the basis of their apparent race and ethnicity.

While the Court has prohibited the President from calling up National Guardsmen to assist immigration enforcement efforts, they are unlikely to limit the President from deciding to deploy law enforcement officers in particular ways or to particular locations.

Federal officers challenging voters and ballots. The Trump administration has also announced that it will use Department of Justice monitors in the election. But those monitors are just monitors: They have only the authority of any other observer, including people who just volunteer. Federal officers are also subject to state and local rules about who can enter polling locations, where they can be when they are there, and what they can do on site.

Interference with ballot counting and ballot certification. Short of physically interfering with election officials’ ability to count ballots and certify election results, the administration might attempt to intimidate or sue officials to affect how and whether the officials count certain ballots.

Indeed, there are already some intimidation efforts that are arguably underway that the Supreme Court declined to block. The Supreme Court opted not to pause many of the provisions in the executive order that was (clearly) an effort at election interference—including the provision that called on the Department of Justice to investigate and potentially prosecute state and local election officials for allowing unqualified individuals to vote. Indeed, when they allowed that provision to go into effect, the Court chillingly suggested this was an appropriate use of the President’s powers. Because the administration is using unreliable databases and information to verify voter eligibility, there is a risk that the threat of investigation and prosecution (even if unsuccessful) might chill election officials’ implementation of election law.

Trump’s DOJ also sued California to try and prevent the state from tabulating ballots from people the federal government believes are ineligible to vote. For what it’s worth, that lawsuit is unlikely to go anywhere. DOJ’s data is extremely unreliable. When DOJ purported to identify thousands of ineligible voters in Nevada and the state investigated, there turned out to be … zero voters who were actually ineligible.

Additionally, DOJ’s recourse is not to prevent the state from administering an election; it is to prosecute individuals who unlawfully voted. DOJ is trying to do that too: It carried out very public arrests of 20 Californians alleged to have illegally registered to vote. The point of those prosecutions seems to be spectacle—to supply fodder for the Trump administration’s conspiracy theories about noncitizens voting. The cases will not be resolved by the time of the election; instead, the allegations alone will be used to sustain the administration’s propaganda, even if the cases themselves turn out to be mistaken identification, accidental registration, or something like that.

To date, the administration’s efforts to affirmatively use litigation to force states to comply with the administration’s antidemocratic demands have been unsuccessful. DOJ has not managed to obtain voter information from states that are unwilling to provide it. It is possible that DOJ might attempt to use the courts to block state officials from counting certain ballots or certifying the vote, which is the next kind of potential election manipulation to watch out for.

DOJ’s lawsuit against California and criminal prosecutions of individuals are part of a tactic to undermine the legitimacy of elections and public confidence in their results. President Trump was an active participant in the Stop the Steal movement that denied the legitimate results of the 2020 presidential election. It is almost unimaginable to think that this Supreme Court would sign off on any effort designed to minimize the President’s maneuvers to undermine faith in the election. They handed him immunity for his role in undermining not only the confidence in the 2020 presidential election, but also its result and transfer of power.

In the event DOJ attempted to get its hands on actual ballots as part of a law enforcement effort, they would need to obtain a warrant to do so, which requires permission from a federal court. But getting that warrant would be difficult since DOJ has not been able to supply any real evidence that ineligible voters are actually voting or that state and local election officials are not determining voter eligibility.

Unanticipated challenges to election administration as an election is underway. Many issues with election administration arise once an election is underway, perhaps due to unforeseen circumstances that affect people’s ability to participate in the democratic process. Imagine there is a natural disaster that closes a bridge, which makes it more difficult for people to get to the polls, or a power outage at a polling location. Any of these or other issues potentially make it more difficult, sometimes prohibitively so, for people to exercise their right to vote even if they made arrangements to do so. When circumstances like this arise, there will occasionally be decisions by election officials themselves or by courts that obligate a particular polling location to remain open to compensate for these issues—to essentially ensure that voters are made whole.

Unfortunately, part of the Stop the Steal movement entailed the resurgence of a once-fringe legal theory that could potentially be used to impede election officials’ efforts as well as courts’ efforts to restore ballot access. The theory is known as the independent state legislature theory. At a high level of generality, it maintains that the rules regarding federal elections must be established by the state legislature, not any other organ of state government. Therefore, the theory reasons, state election administrators and courts couldn’t decide to keep a polling location open for an additional hour even if there was a power outage if the legislature did not provide for it to be open that additional hour.

Several years ago, the Supreme Court decided a case in which it rejected one especially extreme version of the independent state legislature theory which maintained that state courts could never enforce state constitutional limits against state legislatures’ rules regarding federal elections. But the Court’s opinion decidedly left the door wide open to other versions of the theory and several Republican-appointed justices have explicitly signaled their support for the independent state legislature theory. As a result, it is possible that some election officials’ attempts to adapt to unforeseen circumstances could be rejected on the basis of the independent state legislature theory.

The Supreme Court’s intervention in and resolution of the 2000 presidential election provides an illustration and a warning about how this might work. As the election was underway in Florida, ballot counting machines were not reliably processing certain kinds of ballots. State and local election officials initiated recounts and the Florida Supreme Court provided some guidance for how the recounts should work. The United States Supreme Court, however, intervened. It halted the recount before declaring it invalid and effectively ordered the state to certify George W. Bush, who was ahead in votes at the time, as the winner of the state’s electoral votes and therefore the election. A separate writing in the case by Chief Justice Rehnquist, joined by Justices Scalia and Thomas, argued that the Florida Supreme Court and state election officials ran afoul of the independent state legislature theory—because they would have counted and certified votes in a manner that the legislature had not provided.

Among the lawyers on the George W. Bush campaign’s legal team were a young John Roberts, Amy Barrett, and Brett Kavanaugh. There is a possibility the Republican appointees might deploy the theory in another federal election to stymie efforts at election administration.

Challenges to the election after the fact. The most extreme versions of judicial interference may also entertain the most extreme variants on the independent state legislature theory—challenges to an election after the fact. Recall that part of the argument in the Stop the Steal movement was that irregularities in the election allowed state legislatures to effectively throw out the results of the election and decide for themselves who the state’s electoral votes would go to. A similar theory undergirded the Trump campaign’s litigation efforts: They sought to throw out some votes on the ground that the votes had been counted in ways that had not been authorized by the state legislature. In the 2020 election, no court bought this; no court threw out any ballots. But since that time, Donald Trump has installed a slew of new nominees to the federal courts, almost all of whom have refused to acknowledge that Joe Biden was the legitimate winner of the 2020 presidential election. Would one of those possible election deniers embrace a more extreme version of the independent state legislature theory and throw out votes that had already been cast, and had been cast lawfully according to state election administrators and state courts?

That possibility is part of what people talk about when they refer to a “litigation-proof margin of victory”—a win so big that it is much harder to challenge in court. The idea is that if only 10-15 ballots decide an election, it may not seem so outlandish for a court to say 10-15 ballots were illegally cast. But once it gets to the prospect of courts saying thousands of ballots were illegally cast and can’t be counted, it would be a much more shocking decision.

The Supreme Court has not exactly covered itself in glory or acted as a reliable check on the Trump administration’s illegality. Still, I’m not (at least yet) staying up at night worried about the prospect that the Supreme Court would throw out the results of an election after the fact.\ \ Leah Litman is a Professor of Law at the University of Michigan Law School and the author of the New York Times bestselling book Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes.