Rhetoric and red lines. Where will Trump’s legal offensive end?

The mid-term election on 3 November leaves one issue unresolved: the use of the Department of Justice in the electoral contest. Trump’s actions highlight the pressures on the system, but also the limits imposed by the courts. In Alaska, the government had requested that the certification of the result be blocked if Republican Senator Dan S. Sullivan were to be defeated and the votes for his namesake, Daniel J. Sullivan – whose candidacy had been upheld by the state Supreme Court – proved decisive. An investigation by The New York Times has uncovered attempts by figures close to the Democrat Mary Peltola to recruit candidates to siphon votes away from the Republican.

Peltola denied any involvement. On 1 November, Judge Sharon Gleason dismissed the case on the grounds of lack of standing: the government had failed to propose a feasible remedy to ascertain voters’ intentions whilst respecting the secrecy of the ballot. The department lodged an appeal. In California, the government had requested that the counting of postal ballots from 20,000 registered voters, identified as possible non-citizens, be separated and suspended. On 28 October, Judge David Carter refused the application for urgent relief, questioning the reliability of the list and the risk of excluding legitimate voters. This was followed by rejections from the Court of Appeal on 30 October and the Supreme Court on 2 November: these were interim rulings, not final decisions on the merits of the case. Such actions may fuel allegations of electoral fraud and pave the way for challenges to unfavourable results.

Judicial rulings show, however, that institutional safeguards have worked. For Carter, setting aside votes on the basis of unproven allegations can irreparably damage trust in democracy. This principle applies after the vote, whoever the winner may be.