What Would "Nationalizing the Election" Look Like, and Could It Be Stopped?
It has not been at all difficult to predict what Donald Trump would be willing to do when it comes to dismantling constitutional democracy in the United States. Anyone listening to him for the past ten-plus years could easily see that he was willing to do anything -- obviously including breaking the law -- to obtain and hold onto power.
The only reason so few of us have a nearly perfect record when it comes to Trumpian predictions is that we have not been deterred by the idea that "he couldn't possibly try to do that." Yes he could, and he has. All of which means that the difference between people who have predicted his actions correctly and incorrectly is the difference between people who are realistic and those who are too scared to say what they see with their own eyes.
The one true outlier was Trump's temporary departure from the scene on January 20, 2021. Those of us who correctly predicted that he would never leave peacefully were proved right on January 6th of that year, but we were pleasantly proved wrong when he did in fact fly back to Florida two weeks later. It required a truly botched operation for him to be sidelined, but even so it was a surprise to see him leave at that point.
Five years later, the smear "alarmist" has become synonymous with "realist" (or even merely "conscious human being"), so we need to think about how the inevitable destruction of what remains of the rule of law in the US will play out. Next stop: sham elections.
I have honestly admired the giddy optimism of those who have consoled themselves with the idea that the Democrats can ride the anti-Trump wave of public sentiment to victories in this year's midterm elections, so much so that I have occasionally allowed myself to imagine that such a thing could happen. But a clear-eyed pessimist is still a clear-eyed pessimist.
In the last sentence of my December 3, 2024, Dorf on Law column, I breezily (but glumly) predicted --certainly not for the first time -- that "there will be no meaningful elections for the foreseeable future." The only surprise is that it took until the 13th month of Trump's second presidency for him to go there: "The Republicans should say we want to take over. We should take over the voting in at least many - 15 places. The Republicans ought to nationalize the voting."
Again, why would anyone be surprised? Although only a naif could have failed to see this coming, hearing Trump say it out loud -- and seeing his most extreme supporters immediately jump on board -- requires us to think about this in concrete terms. "He will not allow elections to stop him" is an accurate prediction, but it lacks specifics. How would this play out on the ground?
To be clear, the predictable response of feigned dismay from establishment Republicans arrived on cue, with not merely a faux-gadfly like Senator Rand Paul but even the fully Trumpist Senate Majority Leader John Thune saying that they would not want to take elections away from the states. These are, however, the same people who initially rejected Trump's candidacy but quickly fell in line when it became uncomfortable to oppose him. Similarly, we should never forget that, among too many examples to count, Senator Mitch McConnell once blamed Trump for the insurrection, only to come around and endorse him three years later.
What about the Supreme Court? Even before Trump came along, the challenge to the Affordable Care Act that led to the NFIB v. Sebelius Supreme Court ruling exposed the opportunism of the Court's supposedly principled conservatives. Leaving aside the unexpected tax issue that ultimately decided the outcome of that case, the core Commerce Clause claim was based on the so-called broccoli argument, which said that if the government could penalize people for not buying health insurance, it could also force them to eat healthy foods like broccoli. Very cool-headed people at the time were predicting that the Court might reject that claim on a 7-2 or even 8-1 vote, based on what was then known about the Republican-appointed justices' views. But in the end, all five (including John "balls 'n' strikes" Roberts) invented a completely ahistorical, atheoretical, and atextual action/inaction distinction to reach the outcome that they wanted to reach.
So as far as the other branches of the federal government go, we can expect all opposition to evaporate. Republicans in Congress will end up endorsing (or at least passively allowing) Trump to do whatever he wants regarding elections and everything else. The process is all too predictable, as we saw again last year when supposed fiscal hawks on the right made loud noises about never voting for debt-increasing budget bills but then meekly went along in the end. To go further back in time, everyone was uniformly appalled by Trump's slander of the late Senator John McCain, and by the "Access Hollywood" tape, only to get back on board after only the most superficial reboot.
And the Court will do what it did in the Muslim ban case, the presidential immunity case, the racial profiling case (Noem v. Perdomo), the insurrection clause case, and on and on. Indeed, given their track record, it would not be beyond the Republican Six's collective imagination/chutzpah to declare that they should not rule on a case having to do with elections at all, because to do so would be to meddle in political questions. After all, even before the most recent Republican appointment to the Court, the other five conservatives announced that they were content to treat elections -- elections! -- as non-justiciable for being political questions. The illogic has always been stunning: Unelected judges must not intervene in issues that are left to the political branches, because those are the people's representatives, so we cannot think about intervening even when someone presents a claim that the system is not in fact representing the people. Those who hope that the Court's Republican bloc would stand in the way of their patrons' holding onto power are kidding themselves.
In some sense, however, I am going at all of this in the wrong order, saying that Republican partisans in both Congress and the Supreme Court will not prevent "it" from happening? But was is that "it"?
Republicans in Congress might or might not end up passing their SAVE Act, which is a somewhat less aggressive way to rig the elections that would impose onerous and unnecessary voter registration requirements. Or the Court might or might not eviscerate what remains of the Voting Rights Act and allow more gerrymandering in the South (and elsewhere). But what if those things do not happen -- or are not enough to guarantee that Republicans will hold onto power?
The two most obvious "its" here are to go all in on authoritarianism by (a) intimidating potential voters to suppress turnout, and (b) simply refusing to accept any negative results. On the former, the hyper-Trumpist political provocateur Steve Bannon happily said out loud what any sentient being knew that he and his fellow travelers have been thinking all along. As Politico reported:
"We’re going to have ICE surround the polls come November. We’re not going to sit here and allow you to steal the country again,” Bannon said Tuesday on his podcast. “And you can whine and cry and throw your toys out of the pram all you want, but we will never again allow an election to be stolen.”
The conservative influencer reiterated his response a day later, calling for Trump to go even further and send U.S. Army troops to voting locations. Federal law prohibits the president from deploying military troops “at any place where a general or special election is held,” and it is a crime in several states to carry a firearm at or near a polling place.
“President Trump has to nationalize the election. You’ve got to put — not just, I think, ICE — you’ve got to call up the 82nd and 101st Airborne [Divisions] on the Insurrection Act,” Bannon said Wednesday. “You’ve got to get around every poll and make sure only people with IDs, people … actually registered to vote and people that are United States citizens vote in this election.”
As always, the Right's accusations are confessions: "We're not going to let you steal the election" means "We're going to steal the election." But it is also interesting to recall that many people worried in 2020 that rightwing paramilitary groups would try to intimidate voters by showing up with weapons of war at polling places. In 2026, we could see that very thing happen nationwide, but worse, because the people who used to try to pull such stunts as outside agitators are the guys who have now signed up to wear tactical gear and government uniforms (without identifying insignia). And this time around, they will be allowed to drag anyone who looks or sounds "not American" away for deportation.
Will mass public protest be enough to stop this? After all, we are seeing some very encouraging changes as a result of the impressive resolve of the people of Minnesota, who continue to peacefully protest against Trump's lawless invasion of their state. Would a similar or greater reaction on a national scale against a sham election be enough to force Trump and his supporters to relent? One hopes so. The problem is that not only is hope not a plan, but it is difficult to imagine an actual plan that would overcome the power of all three branches of government and the threats of targeted violence. Without such a plan, nothing could stop the people's voice from being trampled.
- Neil H. Buchanan