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‘Whether there’s fraud or not’: Trump allies map out post-election fights
Days before Election Day, the fight over the results is already underway.
In Alaska, the Justice Department is suing to block certification of the Senate race if the Republican candidate loses narrowly. In California, federal prosecutors issued subpoenas to force election officials to testify about alleged noncitizens on their voter rolls. In a northern Texas county, the local GOP party is suing to block certification of election results unless every ballot in the state is counted by hand.
That is likely just the beginning.
Republicans close to the White House, Democratic lawyers and senior Democratic congressional aides told MS NOW they expect the Trump administration and its allies to contest results and try to block certification in key counties and states after Tuesday.
Some Republicans, including some GOP lawmakers, have floated a last resort if that fails: refuse to seat Democrats who win.
President Donald Trump, who wages some version of this fight nearly every election cycle, has primed his base for it. The difference this time is that he has the full force of the federal government behind him, with loyalists in key posts — including his former personal lawyer, who now leads the DOJ.
Democrats are “great at cheating,” Trump said at a recent campaign stop in Iowa — a false claim he repeats at nearly every rally. “They cheat like hell. And if they didn’t cheat, they could never win.”
Two people close to the White House, including a former Trump administration official, told MS NOW that the DOJ is certain to file more lawsuits challenging results in other states, on top of its pending suits in California and Alaska. One of them said to expect Republicans to contest the outcome in states such as Michigan, where Democratic Senate candidate Abdul El-Sayed has become a target of Trump’s racist and Islamophobic attacks.
“Georgia will ultimately be in the crosshairs; Michigan always, especially if El-Sayed wins by less than 1%, and Wayne County is the last county that we get in,” said one of the people close to the White House, who was granted anonymity to describe the strategy. “Whether there’s fraud or not.”
But the same person acknowledged expecting the challenges to fail.
“We can be fired up, we can have great lawyers, but judges hate these cases, and they almost always go nowhere,” they said. “We’re not gonna win in a courtroom.”
Still, nearly everyone in both parties who spoke to MS NOW said they are bracing for the main battle to unfold in the states during the vote count and certification. Once all the votes are counted, local and state officials review and certify the results. They then send the official record of who won, known as certificates of election, to the House and Senate.
“We’re preparing for all manner of certification fights, which are not at the end of the day federal fights,” said a senior Democratic aide, who was granted anonymity to discuss internal war-gaming. “These are fights in county courthouses and state supreme courts, not in the halls of Congress.”
The DOJ and Republican law firms are expected to mount their challenges before the winners’ certificates ever reach Congress. If those challenges fail, some of Trump’s allies are already eyeing the next stage: January, when the new Congress is sworn in. Trump’s steady drumbeat of election fraud disinformation, including the false narrative of widespread voting by noncitizens, has once again emboldened them.
Ari Fleischer, who was White House press secretary under former President George W. Bush, suggested the Senate could refuse to seat Mary Peltola, the Democratic Senate candidate in Alaska, even if the state were to transmit the certificate of her victory.
“I don’t know if the Senate is going to seat her,” Fleischer said. “The Congress decides — has the ultimate say in who the members of Congress are.”
Trump himself hasn’t ruled it out. Asked whether Republicans should refuse to seat Peltola, he said, “Well, you’re going to have to see what happens.”
Under Senate rules, a losing candidate or a sitting senator can challenge the results of a Senate race. But among the 67 senators whose terms continue past Jan. 3, Democrats hold a one-seat edge: 34 caucus with Democrats and 33 with Republicans.
One of the two people close to the White House said that some members of the party are considering objecting to seating Peltola and El-Sayed if they win. In El-Sayed’s case, the person said, some GOP senators would cite claims — which have been debunked — about the Michigan native’s citizenship and accusations — equally false — that he has ties to terrorist groups.
Such objections around fabricated ties to terrorist groups is “not a valid objection,” said a senior Senate Democratic aide. “That is not constitutional.”
In 1969, the U.S. Supreme Court — in Powell v. McCormack — did weigh in on an effort by the House to not seat a member-elect on ethical grounds, not based on vote count or certification. The court ruled in a 7 to 1 decision that the House and Senate may only consider a member-elect’s age, citizenship and appropriate state residency when determining the “qualifications” of that individual to serve and take the oath of office.
The aide said the Senate has a “rare but normal process” for objecting to the seating of a newly elected senator. But bad-faith objections, the aide said, would set off a “mutually assured destruction” dynamic in which “everybody can start objecting to everybody’s certificate.”
Experts in constitutional law and congressional procedure say there is no path to using the January seating process to overturn the voters’ verdict in the midterms. That would take support from both parties or a majority united behind the effort.
Under federal law, states send their certificates of election to the vice president. He presents them to the Senate when it convenes at noon on Jan. 3, the moment outgoing senators’ terms expire. Some have floated the idea that Vice President JD Vance could use his role as the Senate’s presiding officer to try to block a newly elected senator from being seated. Most of the election law scholars and Democratic congressional aides who spoke to MS NOW said such an unprecedented move would be so far beyond the bounds of the law that they don’t expect it to happen.
Nothing in the Constitution, federal law or Senate rules expressly gives the vice president the power to reject certificates sent by the states, the experts said.
“The Senate as a whole is the judge of the returns of its members under the Constitution,” said Bob Bauer, a longtime legal adviser to the Democratic Party who is also involved in bipartisan election-protection programs this cycle. “The Vice President of the United States cannot undermine, single-handedly, the authority of the Senate to determine that that member is properly presented to take the oath and take her seat.”
“I don’t take as a granted that the Senate is inclined to overthrow the republic,” said Justin Levitt, an election law expert at Loyola Marymount University.
Still, the senior Democratic aides and lawyers responsible for war-gaming every scenario are prepared for it. Bauer said the preparation to protect against federal interference “has happened far earlier” this cycle and is “more extensive than ever before.”
There is even less ambiguity in the House.
Democratic lawyers are also preparing for a scenario they don’t expect to happen. In it, House Speaker Mike Johnson fires the House clerk and installs a loyalist who could slow or deny the seating of newly elected members. State election officials have raised that possibility, as has J. Michael Luttig, a conservative former federal appeals court judge. Johnson recently told MS NOW that “of course” he’ll follow the law when asked about the seating of members.
“We’re going to administer the ceremony on January 3 where one takes the oath … it’s a pretty simple process,” Johnson said.
Even if Johnson were to fire the clerk, the House has the authority to overrule the speaker.
Under the Constitution, the terms of every sitting House member expire on Jan. 3. The clerk then presides over the new House until a speaker is elected. The clerk’s first task is calling the roll of members-elect whose states have submitted certificates of election.
“As soon as that happens at noon on January 3, there is no Speaker Mike Johnson — there’s just Mike Johnson, presumably member-elect. Period,” Levitt said. “The people who receive certificates in the states are put on the roll by the clerk.”
And unlike the Senate, the House is governed by a clear federal law on contested races. Under the Federal Contested Elections Act of 1969, a losing candidate has 30 days after the state certifies the result to contest it before the Committee on House Administration.
Under the law’s timelines, the review can take months, but the speaker may swear in the certified winner to serve while it plays out. Only twice has a speaker opted to not temporarily seat such a member-elect during the review process.
The White House declined to say whether anyone there has discussed objecting to the seating of newly elected Democrats with Vance or with congressional Republicans. Instead, it pointed to the president’s recent comments baselessly casting doubt on the security and accuracy of American elections.
But Republicans’ willingness to follow Trump’s lead on false claims of a rigged election appears to be faltering as they calculate that the president is more unpopular than ever.
“He will be on an island all by himself,” a former Trump administration official said.
There is no appetite “to play Trump’s game” and block the seating of members in the Senate and House, the former official said. “Nobody is going to say let him vent the way they did in 2021, they will slam the door.”
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