In recent days, Trump officials have sued to potentially block the certification of a Senate race in Alaska, threatened election officials in California with jail time, and implied that the outcome in a Senate race in Minnesota couldn’t be trusted if the Republican didn’t win. Trump’s allies have also been urging the President to potentially take drastic measures, including declaring martial law to seize ballots.
Election officials in dozens of states are preparing for a wide range of possible interference on Tuesday when millions of voters will cast ballots, as well as in the days that follow as the votes are counted, the final batches of mail-in ballots come in and the election outcomes are certified.
Over the past few months, officials from the Trump Administration have given vague answers when asked if the Administration might try to deploy federal agents to the polls. Federal laws explicitly prohibit military or federal officials from stationing troops or armed men where elections are held in an attempt to interfere with a federal election. Joint Chiefs of Staff Gen. Dan Caine assured a Democratic senator in late August that the military had “no plan” to be deployed to polling locations during the midterm elections. Yet Trump has declined to rule out measures such as declaring a federal emergency on Election Day or sending ICE agents to the polls, telling TIME in an interview in September that he didn’t “rule anything out” at this point.
At least three lawsuits have been filed to preemptively block ICE agents from being deployed to polling sites on Election Day. According to one of the lawsuits, at least one county sheriffs’ office in Colorado has already been cooperating with ICE and conducted “warrant checks at polling locations” this year.
Along with the prospect of ICE agents conducting immigration enforcement, election officials have also expressed concern that the federal government might try other ways to disrupt polling places, citing voter fraud allegations as a premise. For months, the Administration has been involved in a legal fight with dozens of states over allegations that noncitizens are on their voter rolls. Election experts say voter fraud is incredibly rare.
In some local communities, there are indications that federal agents showing up at polling locations could sow chaos at the polls. Virginia’s Arlington County stated in its preemptive legal filing against federal agents at the polls that the county had developed plans regarding “whether and how to make arrests, and any prosecutorial response or civil legal actions that might be necessary.”
“Arlington has never before needed to prepare for these threat scenarios,” the filing adds. When reached for a statement, the Arlington County government says the local police department remains in contact with election officials and is prepared to respond to any reported incidents.
As polling stations close Tuesday evening, local election officials and voting rights groups are bracing for the prospect of federal officials possibly seizing election materials and voting machines. In January, the FBI raided the Fulton County election office in Georgia and seized election materials in connection with the 2020 election. In May, a federal judge ruled that the federal government could continue to retain the ballots. The FBI has not announced any wrongdoing stemming from the investigation.
“The lesson of Fulton County was that you have to be ready to be in court literally in minutes,” Norm Eisen, the executive director of Democracy Defenders Action, tells TIME. Eisen has been working closely with voting rights groups as well as local and state election officials in multiple states to prepare for any federal interference in next week’s elections. That includes being ready to immediately file lawsuits as soon as any federal officials try to seize any ballots or voting machines.
Other legal scholars are also encouraging judges to consider alternative solutions if federal authorities seek to retain election materials. Rick Hasen, a law professor and director of UCLA’s Safeguarding Democracy Project, published a white paper urging judges who might see warrant applications for ballot seizure to consider ordering copies of the ballot to allow the election certification process to continue.
Many mail-in votes won’t arrive until days after Election Day. Some will be from members of the military stationed overseas. The fight over who can receive mail-in ballots, and which mail-in ballots should be counted, has been underway for most of Trump’s second term.
In March, President Trump signed an executive order requiring states to work with the United States Postal Services to establish lists of verified voters and asking USPS to withhold mail ballots from anyone not on the lists. The executive order was quickly met with a flurry of lawsuits, which resulted in a preliminary injunction blocking the USPS from enforcing any new rules in response to Trump’s order.
But election officials are still preparing for the possibility that some federal officials may try to get in the way of mail-in ballots being counted. On Monday, the DOJ asked the state of Washington to not count ballots from more than 400 voters whom it suspects to be noncitizens, as more than 1 million ballots have already been cast.
Even with the federal effort on hold, state governments have pressed ahead with new rules that are already pushing ballot rejection rates higher. In North Carolina, the State Board of Elections implemented a new rule that requires voters to use at least three different envelopes to deliver their ballots and copies of their ID. Failure to seal any of the three envelopes would result in the ballot being rejected. So far, the state is already seeing an uptick in the ballot rejection rate compared to the previous election cycle, from 2.6% to 3.1% statewide, according to local media outlets.
After all the votes are tabulated, county officials will begin certifying the election results. Although each state has its own rules on raising and resolving a challenge from county officials, certifying the election results is a mandatory duty. According to the Campaign Legal Center, if an official delays or refuses to certify results, state officials and courts can step in to compel certification. State officials can also pursue criminal or civil penalties to hold local officials accountable.
On Thursday, the Justice Department preemptively sued the state government of Alaska to block the certification of its closely-watched Senate race if Republican incumbent Sen. Dan S. Sullivan loses to Democrat Mary Peltola. The department accused the state of failing to “protect the integrity of the election” by allowing independent candidate Dan J. Sullivan on the ballot.
“The DOJ attempting to intervene at this late stage is entirely against department policy, as there is no legitimate enforcement of federal law here, and it raises serious concerns about political interference,” said David Becker, executive director of the nonpartisan Center for Election Innovation and Research. “I cannot recall an administration ever attempting to stop the certification of an election — and certainly not 11 days before polls close.”
Various election officials expect that Alaska won’t be the only state that says a certification challenge. During the 2020 election, President Trump sought to pressure Georgia Secretary of State Brad Raffensperger to undo the state’s certification of Joe Biden’s win and “find 11,780 votes”—the number needed to overturn his loss in Georgia. Trump’s allies also led a pressure campaign, meeting with lawmakers in Michigan, Pennsylvania, Georgia, and Arizona in an attempt to overturn the election results, according to the investigation by the bipartisan January 6 committee.
