Losing in Court, Keeping the Ballots

The numbers that have held up are small. A 103-vote bookkeeping gap in a Riverside County, California, election — a gap Sheriff Chad Bianco had advertised as a 45,800-vote discrepancy — has kept roughly 650,000 ballots in his custody since February ^[1][2]. In Georgia, 130 tabulator tapes that Fulton County poll workers never signed — the printed counts from ballot scanners — helped send FBI agents into an election warehouse on January 28; about 700 boxes of the 2020 election, ballots, tapes and voter rolls together, remain in Justice Department hands ^[3][4][5]. And about 340 ballots in New Jersey really were cast by noncitizens, a margin the state itself found and fixed ^[6]. The national claim, 250,000 noncitizens on the rolls of four states, collapsed to 185 potential cases when Nevada demanded the underlying data, but it had already sent hundreds of federal agents to work cross-referencing voter lists ^[7]. No state has certified any of these numbers as changing an outcome. Each has been enough to put hands on something physical. Against that inventory, the administration's record in court runs perfectly the other way. Federal judges have dismissed its wholesale demands for unredacted voter data on the merits — on the substance, not a technicality — eight times, in Arizona, California, Maine, Massachusetts, Michigan, Oregon, Rhode Island and Wisconsin. In Maine, the judge found the claim barely pressed and an insult to the traditional workings of federalism, and a judge in Wisconsin threw the case out with prejudice, meaning it cannot be refiled ^[8]. On September 14 the administration lost again, this time at the Supreme Court, which blocked the Postal Service's barcode-and-portal system for mail ballots, 7 to 2. Even that ruling was decided on the clock: the majority did not hold that the Postal Service lacks the power to screen mail ballots, only that launching the system 49 days before an election was arbitrary and capricious, the legal term for an agency acting without a defensible reason ^[9]. The Postal Service says it will play no role in deciding who can vote or counting ballots, and Attorney General Todd Blanche said the department will comply with the ruling while its investigations of ineligible voters continue; on Friday it charged sixteen noncitizens with election fraud across seven states, the largest single case one man accused of voting nine times in sixteen years ^[9][10]. The pattern's hinge was a ruling in May. Judge J.P. Boulee reviewed the Fulton raid and found it without real precedent, its premise troubling, resting in part on conspiracy theories that had already been debunked. The election in question had been counted three times, once by hand, and affirmed for Joe Biden every time. Boulee let the Justice Department keep every box its agents had taken ^[5][11]. The reason is the warrant standard. Probable cause, the threshold for a search, asks whether there is reason to believe a crime may have occurred, not whether it would have mattered. A 103-vote gap is a real discrepancy, and tapes that were never signed are genuinely unsigned. Either one justifies a warrant at any scale, and once the boxes are gone, winning them back takes a court order that no judge has yet issued ^[8][5][2]. Debunking a raid's premise does not empty the warehouse where the boxes now sit. Where the fight is over data, the administration has lost every round so far. Where the fight is over boxes, it has not lost once. The Fulton investigation, meanwhile, has outlived the crimes it was opened to prosecute. In July a federal judge quashed a grand jury subpoena for the home addresses and phone numbers of nearly 3,000 county election workers and volunteers, noting that the statute of limitations on 2020 election crimes — the deadline for charging them — had already expired ^[12]. The 260 analysts the FBI surged to Atlanta, each carrying roughly 708 records, are still at work, hunting for material to build a case ^[11]. The one box fight that could still break the pattern is pending in Michigan, which refused in full a Justice Department demand for every ballot, receipt and envelope from Wayne County's 2024 election; the department answered that it would seek a court order within fourteen days. That was April, and the standoff is still open ^[13]. And the method is traveling. Bianco defied the California attorney general's direct orders to stop and kept the investigation going after the state supreme court halted it, and he says officials from other states and counties have been contacting his office about starting their own ^[2]. The Justice Department runs its own itinerary; it announced Minnesota as its next stop on a nationwide election effort ^[14]. The paperwork reaches even friendly territory: the Department of Homeland Security has served administrative subpoenas on all 254 Texas counties, seeking registration applications, signatures and voter histories, some of them open-ended, and the association of Texas county election officials is advising its members to consult counsel before responding, to keep the process within its proper constitutional bounds ^[15]. State governments are writing law against what has already happened to them. On Saturday, Governor Gavin Newsom signed thirteen bills prompted by the Riverside seizure: physically taking ballots, records or voting technology before certification is now a felony carrying up to four years, arrests within 200 feet of a polling place are barred on Election Day except for violent crime, and directing election workers to interfere with mail-ballot delivery is a felony as well ^[16]. Minnesota has inverted the observation game. When federal election observers arrived for the August primary, Hennepin and Ramsey counties kept them outside the hundred-foot line, and Attorney General Keith Ellison assigned state officials to observe the federal observers, to make sure they and everyone else respected state law ^[14]. With the midterms six weeks out, the officials who run elections are drilling for what shows up in person. In California, Michigan and Wisconsin, administrators are gaming out federal agents at polling places, demands for voting machines and the seizure of records, treating it as a live scenario rather than a hypothetical ^[17]. Other democracies rehearse, too; Israel's election authority recently wargamed foreign disinformation with Shin Bet, its domestic security service ^[18]. The difference between the exercises is the adversary. In Israel's drill, a foreign hand. In the American drills, the officials' own government. None of this has required an emergency. No election emergency has been declared, and the White House has declined to say whether one is coming ^[19]. The options stay warm regardless: a leaked Homeland Security memo outlines deputizing National Guard members as immigration officers, and Secretary Markwayne Mullin has said immigration agents could serve warrants at polling places ^[19]. On that last idea, he is unmoved by the objections.

I don’t understand what the concern is about enforcement of immigration at polling places anyways, because honestly if you’re not a citizen you shouldn’t be voting anyways. — Markwayne Mullin

The disposition runs to the top. Trump said in April that he regrets not sending the National Guard to seize voting machines after the 2020 election ^[20], and asked this month about an emergency declaration, he said he would do anything necessary for honest elections and that stranger things have happened ^[19]. The uniformed chain is a softer barrier: General Dan Caine, the chairman of the Joint Chiefs, says there are no plans to send troops to the polls, but General Gregory Guillot, who leads Northern Command, the military command responsible for the homeland, has said that given such an order he would look at it very closely ^[19]. One fact has held from Fulton onward: nothing seized has come back. Not Fulton's boxes, held long after the presiding judge called their premise debunked; not Riverside's 650,000, held over a state supreme court halt the sheriff has defied ^[8][5][2]. The preparation started almost immediately. By January 30, three days after the raid, Minnesota's secretary of state had already settled on the comparison ^[21].

We have to treat this like a bomb threat. — Steve Simonsen