The Legal Fight Nightmare Scenario for the US Midterms

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There is this understanding that there's going to be a race to court at the slightest hint of something that goes wrong.

I'm David Gurra, and this is The Big Take from Bloomberg News. Today on the show, it's Election Day in the U.S. Americans are voting for lawmakers in the House and Senate. and the midterms will have major implications for the next two years of the Trump presidency. A deluge of election-related lawsuits have already been filed, and Bloomberg's Zoe Tillman and Josh Wingrove are going to walk us through what those challenges could mean for the results. Josh, how is the White House, how are Republicans preparing for that race to court that Zoe just described?

Well, they're front-running it in one way with the Alaska situation. One of the weird things on the Trump beat You're like, man, it seems like the president is directing this. And then he comes out and says, no, I directed that. He says that he admits it publicly. No pretense. He said, right, exactly.

Say it in the open. So he has said that he directed sort of a preliminary case, essentially. Zoe will correct me. mercifully, I'm sure, on this, but getting ahead of this Alaska issue and the two Dan Sullivans on the ballot, the Dan Sullivan. Yes, well said, well pluralized, yeah. And subsequent, of course, New York Times reporting about involvement of Democratic officials, including up to the question of whether Mary Paltola, the Democratic candidate, was involved. Trump has called for her to be ripped off the ballot over this.

Of course, as we speak, no sign of that that will happen. But I think what is clear, of course, coming out of 2020 and now is the president is perfectly willing to go to unprecedented lengths to use the legal system and his own sort of apparatus to contest elections when he doesn't like the result. And we've seen that, for instance, of course, already with the involvement of the attorney general in the Alaska case saying, you know, pursuing whether a crime was committed there, the attorney general, of course, being recently the president's personal lawyer. So I think basically the expectation is anything's possible. And the president has been clear on that. On the flip side, though, he's also

already been distancing himself from the results a little bit. And I think that that raises the prospect that we don't see a 2020 type scenario.

I don't know.

But like, you know, Trump's reaction in 2020 wasn't his reaction in 2018. And so I think it's an open question where 2026 will lie in terms of does he just blame bad candidates on the ballot if they lose? And in some cases, you might see that. In other cases, I certainly expect at least some legal fighting.

I should note here that a federal judge dismissed that lawsuit over the weekend and the Department of Justice has appealed that decision. Zoe, I want to step back here for a moment and ask if there is a precedent for this kind of preemptive suit, the way that the Justice Department has approached the ballot issue in Alaska.

No, not really. I think it's a pretty extraordinary case on a lot of levels. And, you know, more broadly, to Josh's point, the wildcard really is the president and the federal government. Normally, there's a lot of litigation around elections since 2020, but it doesn't really involve the Justice Department.

So the fact that we just see the Justice Department being active and aggressive and present is itself unusual. So with that in mind, The case in Alaska, the fact that it's preemptive is just extraordinarily unusual. They've asked the court to stop the state, at least temporarily, from certifying the results if the Democratic candidate, Mary Peltola, if she wins, and if the current incumbent, Dan Sullivan, loses by a margin that could be closed by the alleged spoiler candidate, Daniel Sullivan. And then the final component that legal experts have really focused on is that they're bringing this case under what's called the National Voter Registration Act, which is a federal law that deals with how states should handle

voter registration, not ballot counting. And they're choosing language from the statute that generally says the goal of this is to ensure the integrity of elections. And they're saying this gives the federal government room to come in to enforce the integrity of elections. but that's not what the law does in practice. So, you know, a lot of legal experts across the political spectrum have said, I don't know what this is. I don't know how they put this together.

So there's a lot about this that is just very unusual, both in context and in substance.

We've seen these other kind of pre-election legal efforts, either to cast doubt over the integrity of a race or to enforce voter protections. I think of how much talk there's been about the prospect of immigration agents showing up at the polls. And with that, efforts that are underway to keep those agents away. Josh, can you talk through sort of how the White House sees this tactic or intends to use this tactic? I know it's something that Todd Blanch, the Attorney General, has been asked about and has commented on.

The administration is kind of distancing itself from the prospect a little bit. You don't really hear pledges of it. But to my ear, they haven't ruled it out entirely. Not only ICE agents, but the potential for National Guard deployments in particular are And these are things that when you say aloud sounds borderline conspiratorial. And so I don't want to give it too much air in some ways, but I think obviously the possibility is being prepared for in some circles, whether it's being pledged. And sort of more broadly, there are questions swirling, probably still in the more conspiratorial lane, but again, who knows, about whether there might be antics in Congress around seating certain lawmakers or

challenges therein within the congressional process, including with J.D. Vance potentially as the head of the Senate and the sitting vice president. Now, some, including Speaker Mike Johnson, have downplayed those series, saying, you know, let's live in reality. No one's going to do that, more or less. But it just gives you a sense of how wide people view this potential playing field, if you want to call it that, for disruption or dispute or contesting the results. And, you know, why could this matter? Why are so many eggs in the basket of Alaska, a state with three electoral college votes?

Because there's a very plausible scenario that it could decide control of the Senate, right? Like, if Susan Collins wins... North Carolina flips the Dems. Dems hold Michigan, hold Georgia. And the Republican vote actually does a little better than polls show. And, you know, maybe they pick up Ohio. That puts Dems at like, you know, 49 teetering on the question of 50. And if they get one more, like in Iowa, or if Collins loses, then it's 50-50 with 50-49, I guess, in that case with Alaska in sort of this decisive mode. And so it could all come down to Alaska plausibly. Maybe not. but plausibly. And so that's why all this attention on Alaska is, you know, raising so many eyebrows and people are paying close attention

to it.

More from my conversation with Zoe and Josh after the break. Zoe, I look at the Department of Justice and I see them employing a kind of entrepreneurial jurisprudence, if I can use the term. It seems like there's an effort to get something to stick. Maybe it's unconventional or not the way that lawyers would customarily approach a given case. What do they hope that these lawsuits are going to accomplish?

Is it to sort of gum things up or are they targeting some kind of solution here in the end?

What we hear from the Justice Department is that there are federal laws on the books that are intended to make voting secure, to make sure that only eligible U.S. citizens vote. to ensure that states are properly maintaining their voter rolls to make sure they're accurate and up to date so that people who aren't eligible to get ballots don't get them. And what this is, all of this is designed to enforce these laws. And they accuse past justice departments of falling down on the job. They say these laws have always existed. They're not new. And now they are just being enforced. No one disputes that they're being aggressive. And they say, this is enforcing the law.

We get discretion to decide policy priorities in how we enforce U.S.

Law.

And that's what all of this is about, that in Alaska, if there is fraudulent activity that leads to voters being confused about who they're voting for, why isn't it in the interest of the U.S. government to step in and help make sure that's a safe and secure election? I think the counter that we hear from folks is on the other side, that the U.S. government doesn't have the power to step into any election at once to try and steer things the way they want it using laws that are actually quite specific and not intended to give them broad remit to jump into any race and say, hey, this doesn't look fair. We think the U.S. government should play a role here. That's just not what these laws were meant to do, not to give them a broad

election portfolio. So, you know, that's what we hear from the Justice Department and that this is just about protecting the integrity of elections and that, you know, they accuse Democrats of fear mongering, of Saying, you know, all these doomsday scenarios that when you keep saying them, they're just going to intimidate people from going to the polls. And why are you, you know, no one said we're going to send FBI agents to polls. No one said we're going to deploy troops. And then again, the counter to that is because they haven't explicitly said we're not going to do it. Groups are still going to court to say they haven't said they're not going to do it.

They've just said we don't have any plans to do it. But if there are reasons we need a law enforcement presence for some specific reason, maybe, you know, the refusal, as Josh was saying, like to not explicitly rule out explicit you know, scenarios of the federal government stepping in has opened this door and left room for uncertainty.

Zoe, I want to go.

Back to an example that Josh brought up a few minutes ago, and that's what could happen here if Mike Johnson, the current Speaker of the House, were to refuse to seat newly elected Democrats. It seems like perhaps a more extreme example of what might happen or could happen. Can you talk about in the context of the way in which Democrats and election lawyers are thinking about extreme examples like that one and what they would do if that were to come to pass?

Yeah.

So it's again, we should say that Speaker Johnson has been asked about this recently and, you know, in the days leading up to Election Day has really tried to throw cold water on this. I think he called it nonsense narrative. publicly creating some space between that theory because he knows that it's being discussed. And in conversations reporting that I've been doing, talking to lawyers, Republican lawyers, Democrat lawyers, they've all looked at this. They all have floated the possibility of could it happen. So it's been discussed. And what I think it reflects is this sense that everyone needs to prepare for every possible contingency. So for Democrats, it's looking at every step along the way, to see

where are there potential vulnerabilities that could gum up the system, delay, if not outright, upend the law, you know, the normal democratic process.

Josh, I want to close by asking you about how much this is a Trump-era phenomenon, or you see it in that way, this uptick in election-related lawsuits. I guess put another way, do you expect to see this continue or this uptick to continue as we make our way to the next election, the one beyond that? Is this a pet project of President Trump's or is it just the new way that we do politics in this country now?

Look, I think with all things Trump, there's like a unique Trump scale to this. But the trajectory, I think, is going to be similar. If you talk to Biden administration veterans, maybe the one thing they regret most is is Merrick Garland and having this sort of hands-off notion of a Department of Justice and an Attorney General. I do not expect the next Democratic president to set up the system the same way they're going to want. more of a relationship between the White House and that. Now, that doesn't mean that they want to copy the current model of the president's former lawyer being the attorney general.

But I think we will see continued consolidation in this. But we just don't know what to expect. I mean, you know, while we're sitting, a happy six-year anniversary to four seasons total landscaping, right? Like Trump, when he lost in 2020, went away into a bunker for weeks. And in doing so, by the way, maybe squandered a Senate majority because they flipped the two Georgia Senate seats in the runoff. But, you know, I think there's basically anything is possible in the coming weeks. We'll see where it goes.

And by the way, the closer the election, the more this will matter, right? If you have five or 10 contested races in a majority of five or 10, then this is all going to be a nightmare for quite some time. But if Democrats win more than that, or if Republicans do better, and who knows, like, you know, then we'll see. But the sort of legal fight nightmare scenario is like a very closely fought House election with a margin that is equal to or less than the number of contested races, and a very closely fought Senate, including one where the Alaska question is determinative. That is the situation where this is just going to drag on and on and on and on and on.

I'm David Gurra, and this is The Big Take from Bloomberg News. We have rolling coverage of the midterms on Election Day and through the night on Bloomberg.com and on Bloomberg Radio and Television. That's where I'll be. My co-host, Sarah Holder, will be back here on The Big Take to update you on the results. Thanks for listening.

The Legal Fight Nightmare Scenario for the US Midterms

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