A federal judge is weighing whether the Trump administration has acted unlawfully by sending letters demanding state and local officials remove specific voters from their rolls, withhold ballots from those voters, or segregate those ballots rather than count them — all actions alleged to be efforts to interfere in the upcoming elections.

U.S. District Chief Judge James E. Boasberg heard arguments Thursday over whether the Trump administration had violated the Constitution’s Elections Clause, which grants states the responsibility to oversee elections, and the anti-commandeering doctrine of the Tenth Amendment by deploying coercive tactics to order state and local election officials to comply with their demands.

The plaintiffs — a coalition consisting of Democratic party organizations, Democratic congressional leaders, and an individual voter — have argued the letters sent to states with alleged non-citizens on their voter rolls pose a threat, but lawyers for the government maintain that there is “nothing in these letters that coerces action.”

Boasberg pushed back, at one point noting he took the language to be stronger than the government argued. “I would have thought, ‘wow, we better act here or we’re going to be in trouble’ as opposed to the idea that ‘it’s nice to get this letter, but there’s nothing we need to do about it.’”

Christian Dibblee, a lawyer representing the Department of Justice, noted there was nothing in the letter indicating a state would violate the law if it didn’t comply.

At times throughout the hour-long hearing, Boasberg appeared skeptical of the ability of the plaintiffs to bring this legal challenge and whether their claims were speculative.  He declined to immediately rule on the plaintiffs’ request to block the Trump administration from sending any additional letters with these demands to any other states ahead of Election Day.

Instead, he ordered the Justice Department to hand over to the plaintiffs by noon on Friday a list of all the states to which the department and the Department of Homeland Security have sent letters.

That list could help the plaintiffs prove that the Trump administration has effectively coerced the actions of states, especially if there is proof that those states acquiesced to the demands of the federal government. Boasberg told the plaintiffs they could file an additional brief using this information to support their claims by the end of the day Saturday.

Boasberg further indicated he will issue his ruling on the plaintiffs’ request for a court order — which would block the Trump administration from sending similar letters to other states — by November 2, just one day ahead of the election.

He gave the government an off ramp by saying the action could go away if it affirms it does not intend to send more letters.

“But until you say that and the threat remains, I will continue to hear from the plaintiffs,” he told lawyers from the DOJ at the end of the hearing.

The plaintiffs in the lawsuit brought last week include a California voter, who has been a naturalized citizen for 20 years but fears he could be falsely labeled as a non-citizen and “unlawfully targeted” by the DOJ’s effort to remove voters from the rolls.

The coalition had asked Boasberg to block the Trump administration from interfering with the states’ rights to oversee elections.

“None of this is lawful,” the plaintiffs wrote in a court filing ahead of the hearing. “The Executive Branch enjoys zero authority to superintend state voter list maintenance, to supplant state determinations of who is qualified to vote, or to dictate who gets a ballot or whose ballot gets tossed aside. Congress has kept that duty with the States, subject only to modest federal voter list maintenance requirements, which the administration has declined to invoke as the basis for its actions.”

The Trump administration has argued it has a legitimate interest in combating voter fraud.

“This is an extraordinary lawsuit,” the government wrote in a court filing ahead of the hearing. “Defendants have identified evidence that non-citizens may have cast, or may be imminently casting, votes in the upcoming federal election in violation of an explicit federal law that prohibits such votes.

They also allege the plaintiffs’ claims are purely hypothetical.

“Any injury depends on a speculative chain of hypotheticals: that Defendants will send a future letter’; that a locality or state will comply (as opposed to declining to do so), that a court will order relief, and that the relief will somehow injure Plaintiffs’ electoral prospects,” they wrote.

The legal challenge comes after the Department of Justice demanded California segregate the ballots of 20,000 voters that the DOJ believed to be “likely” noncitizens. When California’s Secretary of State refused to comply with the federal government’s request, the Justice Department allegedly threatened the state’s election officials for “knowingly facilitating noncitizen voting” and warned they would face “significant” legal consequences. President Donald Trump later posted on Truth Social, warning, “They will all go to jail for a long period of time!!!”

Almost immediately after the Justice Department sued California, asking a federal judge to immediately set aside the ballots they deemed cast by likely non-citizens and to verify their citizenship status before tabulating their vote-by-mail ballot.

On Wednesday night, U.S. District Judge David O. Carter rejected the Trump administration’s demands. The Trump administration appealed that ruling and the case remains pending.

The coalition is concerned that these efforts could expand to other states beyond California. The Trump administration has already sent a similar letter with a list of alleged noncitizens registered to vote to Washington’s Secretary of State.

“The Attorney General stated just days ago that DOJ is ‘looking at’ a ‘number of States’ as additional targets, both in the run-up to election day and in the certification process that follows,” the plaintiffs wrote.

They have asked Boasberg to halt an expansion of the Trump administration’s efforts, blocking them from “exercising ungranted authority or injecting widespread chaos” into the election “before DOJ reaches the next State on its target list.”

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In a blue county in a red state — that could itself go blue for the first time since the early 1990s — Abbie Kamin has been preparing for months to make sure every vote counts.

“From Day 1, the No. 1 priority was ensuring that every eligible voter in Harris County, that their rights are protected and that they have the right to vote,” Kamin told MS NOW.

As the Harris County attorney in Texas, Kamin is overseeing the legal response to any potential election interference for the state’s most populous county, where record-breaking early voting is already underway. She and her team of almost two dozen lawyers, including some she recently recruited from the Department of Justice, are actively preparing to respond quickly to legal issues surrounding the election as soon as they may arise.

“We have everything that you can have drafted,” Kamin said. “We have attorneys assigned for every different scenario, who’s handling what — but also to ensure rapid response.”

While she declined to indicate the specific scenarios her team was watching, she signaled that the past might be a precedent.

“We’re watching other states,” Kamin said. “We have our own experience from past elections that we are using to prepare.”

Kamin pointed to the federal government’s attempts to interfere with ballots, including the search and seizure of ballots from the 2020 election in Fulton County, Georgia, earlier this year, as well as the Justice Department’s recent lawsuit to segregate the ballots of 20,000 alleged noncitizens in California who were registered to vote.

She also noted the attempts and refusals to certify the 2020 election results, as well as President Donald Trump’s public comments about his intentions around the elections, including a call to send federal law enforcement agents to the polls.

In Travis County, another heavily Democratic county in Texas, County Attorney Delia Garza told MS NOW her office had hired election law experts as outside counsel to assist her team and had already obtained proper authorization to file litigation to protect the vote should the need arise.

“In this important election, we have consulted with our counterparts in local jurisdictions and taken extra precautions to plan and anticipate scenarios that may impact a voter’s protected right to cast their ballot,” Garza said.

A county attorney in a key battleground state — who wished to remain anonymous in order to speak about sensitive litigation planning — told MS NOW that their office is working around the clock to get ready for Election Day on Tuesday, and beyond.

“Every case will be fact-specific, but we do have pleadings drafted, everything ready,” that county attorney said. “We have a team of attorneys with the intent to protect the integrity of the elections and prevent interference, as we have seen these attempts play out in other states.”

Preparations like these are underway at the statewide level, too.

A spokesperson for one state attorney general told MS NOW they had a “brief bank” with motions ready: to have seized ballots or equipment returned, to stop immigration enforcement officers if they show up at polling sites, and to prevent the Justice Department’s election monitors from deviating from the law should they talk to voters, carry weapons into a polling location or interfere in any way with the casting or tabulation of votes.

Secretaries of state are having similar conversations. A source familiar with the planning of several Democratic secretaries of state, who was granted anonymity to discuss the sensitive plans, told MS NOW that those offices also have “draft filings ready to go” and that the plans “include being ready and willing to sue.”

Their biggest priority is ensuring that voters get to vote — and that those votes are counted. They are preparing to respond to challenges quickly so there is minimal disruption to the voting process.

“Time is absolutely of the essence,” the person said. “Secretaries of state and attorneys general have done everything in their power in preparation for this moment to ensure that if something happens, they can react as quickly as possible.”

Several law firms and legal organizations are also preparing to intervene if necessary.

Elisabeth Frost, a lawyer with Elias Law Group who specializes in election litigation, knows firsthand about the legal challenges. She served as former President Joe Biden’s counsel during the postelection litigation in 2020 and litigated more than 60 lawsuits against Trump and his allies.

Frost declined to speak about specific legal work she is involved with now, but told MS NOW her team had “an incredible bank of knowledge” and “battle plans” for specific scenarios as they emerge.

She said her team was prepared to respond within a matter of hours to circumstances even her team of veteran litigators had never seen before, likening her job to that of a chef.

“You have to be ready to put together the dinner for the diner that comes in the door,” she said. “If you don’t, if you are just like, ‘no, I’m going to serve the thing I serve’ … you’re going to miss the mark.”

“One of the things that’s actually crucial in this moment, to be able to meet this historical moment, is to have a real deep understanding of all the things that could go on the table, but be nimble and able to arrange them properly and to put together the right bespoke response for the moment as it arises, and to be able to do that, frankly, on a breakneck schedule and get it right,” Frost said.

Another lawyer at a national legal organization, who was granted anonymity to discuss sensitive litigation matters, told MS NOW they had been preparing for the possibility of federal interference in the election that would require emergency litigation for months.

The person said they had a variety of legal pleadings and briefs drafted and ready to address issues such as the presence of armed Immigration and Customs Enforcement or FBI agents at the polls — or even to respond to attempts to seize ballots, voting machines or other election equipment, and for the possibility that the federal government could use “spurious claims of election fraud” to justify these seizures.

National political party organizations are preparing to enter these legal battles, and some already have. A group of Democratic party organizations and leaders filed a lawsuit last week, alleging that the Trump administration has been systematically seeking to erode confidence in the elections by asserting the right to dictate how states can administer their elections and bolstering their interference efforts through persistent threats and intimidation toward state and local election officials.

These organizations asked a federal judge to block the Trump administration from directing states to remove registered voters from their rolls, withhold ballots, or segregate or refuse to count ballots. They are also asking the judge to block the Trump administration from threatening state and local election officials. The judge has not yet ruled on their claims.

The Democratic National Committee, which was not a party to that lawsuit, is also preparing to respond to any issues that arise. In some situations, they have already filed the suits, including a challenge to possible federal agent deployments, so they can quickly file emergency motions to situations as they arise.

Dan Freeman, litigation director for the DNC, told MS NOW that the committee is also drafting template lawsuits for a variety of situations and expects to have them finalized by the end of this week.

“It is standard practice to develop template pleadings — ‘Mad Libs’ pleadings, if you will — and we will be prepared for the full range of contingencies that could arise next week,” Freeman said.

Preparation for potential election litigation is not a partisan issue. The Republican National Committee has established a robust “election integrity” program to respond to potential issues on and around Election Day.

While the RNC would not address whether it had litigation already drafted, Ally Triolo, the RNC’s election integrity communications director, told MS NOW its goals were consistent: “ensuring the rules enacted by each state are followed uniformly.”

Triolo said any legal response would depend on the facts and applicable state law, but potential issue areas could involve observer access, polling hours, electioneering, ballot counting and compliance with requirements governing voter identification and mail ballots.

“The RNC has attorneys, election integrity staff and trained volunteers monitoring developments and preparing to respond to specific issues as they arise,” Triolo said. “Any action would be based on the facts, the applicable state law and the available legal remedies.”

The Department of Justice did not immediately respond to MS NOW’s request for comment on these preparations for potential election-related litigation.

Back in Harris County, Kamin is concerned that the concept of following the law could become subjective.

Aaron Reitz, the U.S. attorney for the Southern District of Texas, which includes Harris County, posted a video earlier this month, warning election officials, “If you violate the law, I will hunt you down and prosecute you.”

That announcement prompted Kamin, who insists that her team is “following the law to a T,” to hire another type of lawyer to support her election work: an expert in criminal law.

Still, she said she wouldn’t be deterred in her work.

“Our democracy is sacred, and we are going to continue to follow the laws of our state and our country rigorously,” Kamin said. “And we are going to defend those laws.”

Lisa Rubin contributed to this report.

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