This Is Where the Courts Come In

Susan Estrich on Oct 29, 2026

"It is one of the weakest election lawsuits I've ever seen," Professor Richard Pildes, an NYU professor who has seen them all, said of the Justice Department's preemptive lawsuit attempting to block the Alaska Senate results -- if the Republican loses. "It should have no realistic chance of success in the courts," he told The New York Times.

"It's the worst complaint I've ever seen," UCLA's election law expert Richard Hasen added. "No federal statute gives DOJ the right to sue over these things. The Constitution doesn't give it standing, either."

Or, as Republican election law expert Ben Ginsburg told Politico, "Boy, they are scraping the bottom of the barrel. It feels like a real desperation play to me, because it has got zero basis in the law."

Here come the frivolous lawsuits.

Here come -- I trust -- the courts to save us.

Will President Donald Trump's Justice Department try to take steps -- which is to say, bring suits -- to reverse the results of the midterm?

Of course. They've already started. The Alaska lawsuit is the most brazen example. It's a contingent lawsuit that assumes that if the incumbent Sen. Dan Sullivan loses, and the other Dan Sullivan on the ballot gets enough votes to have made the difference, the court should do what? Invalidate the results? There are so many things wrong with this lawsuit that it floored even those accustomed to this administration's brand of election denials.

So we will see more suits like Alaska. If the elections are close, there will be lots of noise about illegal voting. And if history is a guide, not much proof. So far, the administration is striking out in its efforts to purge voter rolls. As well it should. The problem this time around is very different from what it used to be when we looked to federal officials and federal law to enforce the rights of all Americans to vote.

Now, by contrast, the problem facing local election officials is facing down federal interference with the rights of all citizens to vote.

How things have changed. For the worse.

What hasn't changed -- I trust -- is the bulwark of our democracy. The courts. The other half of the 2020 denial story is, of course, that it didn't, in the end, work. The courts stood up to multiple challenges to the election results. It took time. But the challenges failed. As will this Alaska suit.

Meanwhile, in a California courtroom, Los Angeles' top federal prosecutor (whose appointment was found to be illegal the same day by another federal judge) was arguing to a "skeptical" Judge David Carter that local officials should refuse to count some 20,000 ballots that had been identified as suspect. According to the Los Angeles Times' coverage of the three-and-a-half-hour hearing, U.S. District Judge David O. Carter questioned how the administration had derived its list of suspect voters, worried about disenfranchising eligible voters, said the demands would represent a "monumental change" to California elections and suggested federal prosecutors bringing the case had other means of holding illegal voters accountable. Judge Carter is one of my very favorite judges. He will leave no stone unturned. "What are these systems? What are the algorithms? How was this derived?" he asked. I could not wish for a better choice for a judge to hear such a trumped-up case.

And so it will go. I hope. We used to trust prosecutors to screen cases, not to bring suit for purely political reasons. Those days are gone. These prosecutors are different. The courts must stand up to them, as Judge Carter is doing. This is where the courts must step in to protect our democracy.

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