Will we actually have Midterm elections next year? That was the question posed to three veteran conservative election law experts last week and they unanimously agreed that there would be elections… and that they probably would not be free and fair. These aren’t crazies who thought 2020 was fixed by Venezuelan Jewish space lasers. These are sober-minded experts who believe America’s election procedures are historically among the best in the world, and they are telling us that they’re not sure we’re gonna stay that way. There’s really nothing that prepares you to hear serious people describe a dystopian sci-fi plot as a reality that could slam into the country like a wrecking ball by this time next year.
The election law panel at the Society for the Rule of Law summit was one of the most terrifying hours you can spend outside of a midnight Exorcist showing. All the more horrifying because nothing could be dismissed as anything but a calm recitation of the explicit and implicit threats to election integrity emanating from the darker corners of the White House.
Moderated by former Maricopa County Recorder Stephen Richer, who’s spent the last five years having QAnon boomers call him “traitor” on Facebook, the panel featured Campaign Legal Center and former FEC chairman Trevor Potter, former Scalia clerk Richard Bernstein, and Matt Germer of the R Street Institute, all calmly walking through the various 2026 midterms like hospice chaplains for democracy.
Democrats seem positively optimistic by comparison.
What a difference an election can make! Everyone agreed that the 2024 general election marked a resounding success. Bernstein noted that the only effort to steal an election in 2024 came from the Republicans on the North Carolina Supreme Court, and a Republican federal district judge shut it down. Local election infrastructure, having girded itself against the loony allegations after 2020, has become more professionalized, more networked, and more resilient. And yet, there’s a new posse in charge in D.C. and they have the motive and opportunity to wreak havoc upon 2026.
“The election deniers have profited,” Bernstein explained when asked about the worst case scenario of federal shenanigans. “Pam Bondi. Speaker Johnson. Basically, everybody in leadership at the Justice Department and the FBI, were prominent election deniers. They emerged from obscurity by being election deniers. Do I think they will do anything in their power?”
While we worry about Trump laying the groundwork to put cities under martial law in the lead up to elections, Bernstein warned that the threat isn’t limited to troops. “Do you remember when he fired the BLS commissioner because he didn’t like the numbers?” Bernstein asked. “A phone call to Ed Martin, Dan Bongino, and Kash Patel… ‘Put 200 people in vans, seize the ballots. We think it’s illegal to keep counting those ballots.’ Do we think that any of those three people would say, ‘Sorry, Mr. President, we don’t have the authority unilaterally — we can go to court and ask for a ruling, we don’t have the authority unilaterally on our behalf to go to seize the ballots.’ They will seize the ballots in my view.”
So far, the White House hasn’t taken any steps to set that up, but the panel feared that the administration’s early election law maneuvers amount to a canary in the coal mine.
It took until March 25th for the administration to issue its “Preserving and Protecting the Integrity of American Elections” executive order. That order took aim at the National Voter Registration Act by requiring documented proof of citizenship instead of attestation and prohibits states from accepting mail ballots postmarked on Election Day, which would impact a majority of states.
“This may be the rare instance when people drafting executive orders actually looked at the Constitution,” Potter explained. “And that may be why it took a while to produce a cobbled together order, because… the Constitution is pretty clear on this subject: There is no mention of a role for the president.” Still, the administration tried its hand with this order and Potter’s Campaign Legal Center, among others, immediately challenged it. Multiple courts have blocked it and, for now, the order itself is a “dead letter,” as Potter described it, but he warned that it could still end up working its way into the law through state action by local GOP government.
But here’s where things get dark. Potter was explicit, “I think it’s important to understand that this executive order is the first shoe to drop. This is a president who is clearly determined to affect the results of the midterm elections using the powers of the federal government, including powers he does not have.”
As for postmarking, Bernstein — who deadpanned that, as a Scalia clerk, he was “taught to read” — explained that the the word “choosing” means an election happens when voters cast their ballots, not when election officials receive them. He has 30 more pages of support for this in his back pocket too. And yet, the Fifth Circuit disagrees, setting up the most worrying sentence for the rule of law in 2025: “it’s teed up for the Supreme Court.”
Ultimately, the White House might not even need to fiddle with the election process itself in order to undermine the midterms. Mike Johnson continues his refusal to seat Adelita Grijalva, who was elected to the House over a month ago. The immediate impetus for this move is to stave off adding the final vote that would put a demand to release the Epstein files over the top — something Donald Trump seems curiously obsessed with preventing — but the panel worried that it could set the stage for a doomsday option. After midterms, the outgoing House is not, theoretically, the judge of who gets seated. But if the incoming House remains narrowly under Johnson’s control, he could employ this tactic to keep duly elected Democrats out of their seats.
And should that elevate to the Supreme Court, Germer gamed out what happens, “Imagining that scenario where the lawsuit takes place, and the solicitor general comes forward and says, we agree that these results in California can’t be trusted. We don’t think that these people should be seated. And you find the Chief Justice and his colleagues sitting around looking at each other and thinking, ‘If we write an order, saying that you must see them, and it gets ignored, what is that going to mean for our institution?’”
In response, Bernstein warned that if the Supreme Court sits that out, there’s really nothing they won’t they sit out. “If they [the Supreme Court] allow people duly elected, certified in their states, not to become members of Congress, then the game’s over. The game’s over. Then, then we’re not at the opposition. We’re the resistance. And I’m too chicken to be the resistance,” he said. It got a big laugh, but it was the sort of laughter you offer when you’re too beaten down to cry.
The panelists did offer some hope. Germer feels the appeal to Americana that will coincide with the nation’s 250th anniversary might trigger an upsurge in respect for civic duty. “In general, Americans do not like post-election day subversions,” Bernstein said. “I think that was true in 2020. And I think there will be broad pushback across the society. If some of the things that I’m worried about, like seizing ballots start to happen.” Meanwhile, Potter took advantage of the last word to say that we are all better off understanding the nature of this threat now, a year in advance.
Which is all to say, even the hope didn’t do much to make the panel any less scary. Happy Halloween.
Earlier: Rule Of Law Conservatives Awkwardly Embrace #Resistance
District Judges Fight To Save The Rule Of Law While DOJ And Supreme Court Snicker
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
The post Election Law Experts Calmly Describe End Of Democracy appeared first on Above the Law.
Will we actually have Midterm elections next year? That was the question posed to three veteran conservative election law experts last week and they unanimously agreed that there would be elections… and that they probably would not be free and fair. These aren’t crazies who thought 2020 was fixed by Venezuelan Jewish space lasers. These are sober-minded experts who believe America’s election procedures are historically among the best in the world, and they are telling us that they’re not sure we’re gonna stay that way. There’s really nothing that prepares you to hear serious people describe a dystopian sci-fi plot as a reality that could slam into the country like a wrecking ball by this time next year.
The election law panel at the Society for the Rule of Law summit was one of the most terrifying hours you can spend outside of a midnight Exorcist showing. All the more horrifying because nothing could be dismissed as anything but a calm recitation of the explicit and implicit threats to election integrity emanating from the darker corners of the White House.
Moderated by former Maricopa County Recorder Stephen Richer, who’s spent the last five years having QAnon boomers call him “traitor” on Facebook, the panel featured Campaign Legal Center and former FEC chairman Trevor Potter, former Scalia clerk Richard Bernstein, and Matt Germer of the R Street Institute, all calmly walking through the various 2026 midterms like hospice chaplains for democracy.
Democrats seem positively optimistic by comparison.
What a difference an election can make! Everyone agreed that the 2024 general election marked a resounding success. Bernstein noted that the only effort to steal an election in 2024 came from the Republicans on the North Carolina Supreme Court, and a Republican federal district judge shut it down. Local election infrastructure, having girded itself against the loony allegations after 2020, has become more professionalized, more networked, and more resilient. And yet, there’s a new posse in charge in D.C. and they have the motive and opportunity to wreak havoc upon 2026.
“The election deniers have profited,” Bernstein explained when asked about the worst case scenario of federal shenanigans. “Pam Bondi. Speaker Johnson. Basically, everybody in leadership at the Justice Department and the FBI, were prominent election deniers. They emerged from obscurity by being election deniers. Do I think they will do anything in their power?”
While we worry about Trump laying the groundwork to put cities under martial law in the lead up to elections, Bernstein warned that the threat isn’t limited to troops. “Do you remember when he fired the BLS commissioner because he didn’t like the numbers?” Bernstein asked. “A phone call to Ed Martin, Dan Bongino, and Kash Patel… ‘Put 200 people in vans, seize the ballots. We think it’s illegal to keep counting those ballots.’ Do we think that any of those three people would say, ‘Sorry, Mr. President, we don’t have the authority unilaterally — we can go to court and ask for a ruling, we don’t have the authority unilaterally on our behalf to go to seize the ballots.’ They will seize the ballots in my view.”
So far, the White House hasn’t taken any steps to set that up, but the panel feared that the administration’s early election law maneuvers amount to a canary in the coal mine.
It took until March 25th for the administration to issue its “Preserving and Protecting the Integrity of American Elections” executive order. That order took aim at the National Voter Registration Act by requiring documented proof of citizenship instead of attestation and prohibits states from accepting mail ballots postmarked on Election Day, which would impact a majority of states.
“This may be the rare instance when people drafting executive orders actually looked at the Constitution,” Potter explained. “And that may be why it took a while to produce a cobbled together order, because… the Constitution is pretty clear on this subject: There is no mention of a role for the president.” Still, the administration tried its hand with this order and Potter’s Campaign Legal Center, among others, immediately challenged it. Multiple courts have blocked it and, for now, the order itself is a “dead letter,” as Potter described it, but he warned that it could still end up working its way into the law through state action by local GOP government.
But here’s where things get dark. Potter was explicit, “I think it’s important to understand that this executive order is the first shoe to drop. This is a president who is clearly determined to affect the results of the midterm elections using the powers of the federal government, including powers he does not have.”
As for postmarking, Bernstein — who deadpanned that, as a Scalia clerk, he was “taught to read” — explained that the the word “choosing” means an election happens when voters cast their ballots, not when election officials receive them. He has 30 more pages of support for this in his back pocket too. And yet, the Fifth Circuit disagrees, setting up the most worrying sentence for the rule of law in 2025: “it’s teed up for the Supreme Court.”
Ultimately, the White House might not even need to fiddle with the election process itself in order to undermine the midterms. Mike Johnson continues his refusal to seat Adelita Grijalva, who was elected to the House over a month ago. The immediate impetus for this move is to stave off adding the final vote that would put a demand to release the Epstein files over the top — something Donald Trump seems curiously obsessed with preventing — but the panel worried that it could set the stage for a doomsday option. After midterms, the outgoing House is not, theoretically, the judge of who gets seated. But if the incoming House remains narrowly under Johnson’s control, he could employ this tactic to keep duly elected Democrats out of their seats.
And should that elevate to the Supreme Court, Germer gamed out what happens, “Imagining that scenario where the lawsuit takes place, and the solicitor general comes forward and says, we agree that these results in California can’t be trusted. We don’t think that these people should be seated. And you find the Chief Justice and his colleagues sitting around looking at each other and thinking, ‘If we write an order, saying that you must see them, and it gets ignored, what is that going to mean for our institution?’”
In response, Bernstein warned that if the Supreme Court sits that out, there’s really nothing they won’t they sit out. “If they [the Supreme Court] allow people duly elected, certified in their states, not to become members of Congress, then the game’s over. The game’s over. Then, then we’re not at the opposition. We’re the resistance. And I’m too chicken to be the resistance,” he said. It got a big laugh, but it was the sort of laughter you offer when you’re too beaten down to cry.
The panelists did offer some hope. Germer feels the appeal to Americana that will coincide with the nation’s 250th anniversary might trigger an upsurge in respect for civic duty. “In general, Americans do not like post-election day subversions,” Bernstein said. “I think that was true in 2020. And I think there will be broad pushback across the society. If some of the things that I’m worried about, like seizing ballots start to happen.” Meanwhile, Potter took advantage of the last word to say that we are all better off understanding the nature of this threat now, a year in advance.
Which is all to say, even the hope didn’t do much to make the panel any less scary. Happy Halloween.
Earlier: Rule Of Law Conservatives Awkwardly Embrace #Resistance
District Judges Fight To Save The Rule Of Law While DOJ And Supreme Court Snicker
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
