Set the rules. Hold the election. Let the voters decide.
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Voting ends next Tuesday, so I wanted to send you this bonus newsletter before everyone is done heading to the polls.
And even though no results are yet in, the Justice Department has already gone to court over what may happen.
On October 15, the DOJ sued California to stop it from counting mail ballots from roughly 20,000 people the federal government calls “likely noncitizens.” [1] The DOJ claimed that these individuals “were sent a vote-by-mail ballot from California to participate in the federal election.” [2] However, this doesn’t appear to be the case.
According to a declaration from Monica Flores, the Assistant Registrar-Recorder for the Candidate and Voter Services Bureau of the Los Angeles County Registrar-Recorder/County Clerk, the Registrar’s office did a spot-check of 200 records from the DOJ list: [3]
Registrar staff reviewed a sample of 200 records from the October List bearing Los Angeles County addresses. The review is preliminary and quality control is continuing, but it indicates that the [list provided by DOJ] is unreliable: 112 of the 200 records correspond to registrations that are canceled or inactive, so that no General Election ballot was mailed to the person.
But the federal case is already running into problems, and the definitions for the groups of voters DOJ is targeting keeps changing – from “likely noncitizens” to “highly likely to be noncitizen aliens” to “suspected noncitizens” to “likely noncitizen registrants” to “we’re not perfect.” [4]
The Ninth Circuit Court of Appeals recently rejected the Department of Justice’s attempt to bypass the district court, [5] so the California case is ongoing.
The same got started a week later in Alaska, where, on a Trump-directed order, the DOJ asked a federal judge to block certification of the U.S. Senate race – but only if incumbent Dan Sullivan loses. [6][7] The premise: a second candidate on the ballot named Dan J. Sullivan, Jr would confuse voters. If the incumbent wins, nothing happens. If he loses, the result must be suspect. Here’s the latest on the Alaska mess from New York Times reporting: [8]
The State of Alaska has asked a federal court to dismiss a Trump administration lawsuit that seeks to block certification of its Senate race if the Republican incumbent loses by a narrow margin.
The motion Monday came in response to the Justice Department’s complaint last week arguing that confusion over a candidate on the ballot with a name similar to that of the incumbent Republican, Senator Dan S. Sullivan, could taint the election result.
In its filing, the state detailed its moves to ensure that voters know the difference between Senator Sullivan and Daniel J. Sullivan, a retired teacher and political novice who Republicans have argued was planted on the ballot by Democrats to siphon votes from the incumbent.
The second Mr. Sullivan has said that he is not trying to trick voters but is simply running as a Republican dissatisfied with the incumbent.
The Justice Department’s lawsuit asks the court not to certify the election if the incumbent senator loses and he would have won if the votes for either Sullivan went to him. It also calls for an investigation into whether votes for Daniel J. Sullivan were meant for Senator Sullivan, though it does not detail what that would involve.
The state’s motion said that any open-ended investigation into the identity of voters “would gravely threaten the integrity of the electoral process.”
Part of this confusion was already addressed in the state courts – the ballot labels the incumbent appropriately, plus ranked-choice voting lets a confused voter rank both Sullivans, and, through the ranked-choice voting instant runoff process, the lesser Sullivan’s votes get redistributed.
UCLA Law professor Rick Hasen notes that DOJ is currently 0-for-26 in its voter list suits, referencing a deeper analysis from The Atlantic’s Quinta Jurecic. [9][10]
Georgetown University Law professor and author of the One First newsletter about the Supreme Court Steve Vladeck calls this “preemptive election interference,” [11] and I think he’s right.
In both cases, the evidence is thin. We’ve already seen a previous attempt at this in Nevada, which I wrote about in a previous newsletter: [12]
In July, DHS sent a letter to the Nevada Secretary of State Cisco Aguilar, alleging there may be nearly 16,000 noncitizens registered to vote in Nevada. [13] Aguilar stated at the time: "We can affirm that on its face, we refute these claims. These numbers are wildly speculative at best and the Department of Homeland Security hasn't shared anything that backs it up." [14]
DHS quietly walked back the allegations of nearly 16,000 noncitizens, revising their estimate downward considerably: “federal officials have only been able to identify 185 potential noncitizen voters so far.” [15]
This week, we learned that this number is actually lower: zero. [16][17] Every person identified by DHS to be a noncitizen – and therefore, in the eyes of the federal government, should be removed from voter rolls – are actually American citizens.
That said, losing in court may not be the point – the lawsuits don’t have to win the legal argument if the whole point is to put their thumb on the scale for the election outcome itself.
And it’s important to remind ourselves – while this is happening at a larger national scale, I’ve seen a flavor of this at the local level before.
The first episode of my book, Local Democracy in America, [18] is set in Thousand Oaks in 1994, where a lesson about the integrity of elections is discussed. Sixteen candidates were running for three city council seats, and the campaign had become a referendum on incumbent Elois Zeanah.
Councilmember Frank Schillo was running for county supervisor in the same election, and, depending on whether he won that race or not, there might be a resulting vacancy on the city council.
So, a month before Election Day, the council majority, who opposed Zeanah being re-elected, passed a resolution that “endorsed and encouraged” appointing the fourth-place finisher to any vacancy, but only if the fourth-place finisher wasn’t an incumbent. [19]
The Council moved forward with their complicated election influence scheme; Councilmember Zeanah objected, saying that the city should just hold a special election if that occurs, calling an election “the purest form of democracy.” [20] Zeanah was re-elected and a special election was held anyway, but only because a 2-2 tie could not be overcome to fill the vacancy by appointment. [21]
The lesson is the same over these decades – set the rules beforehand, leave them alone, hold the election, and let the voters decide. Challenge what actually goes wrong, but with evidence, not based on fear or guessing.
One last lesson: go vote!
Notes and Sources
[1] United States v. State of California, 2:26-cv-12025, (C.D. Cal.), Document 1, October 15, 2026, https://storage.courtlistener.com/recap/gov.uscourts.cacd.1043513/gov.uscourts.cacd.1043513.1.0_2.pdf
[2] United States v. State of California, October 15, 2026.
[3] United States v. State of California, 2:26-cv-12025, (C.D. Cal.), Document 32-4, October 20, 2026, https://storage.courtlistener.com/recap/gov.uscourts.cacd.1043513/gov.uscourts.cacd.1043513.32.4.pdf
[4] Yunior Rivas, “‘Likely’ noncitizens? ‘Confirmed’? ‘Suspected’? ‘Verified’? DOJ keeps changing how it describes California list,” Democracy Docket, October 22, 2026, https://www.democracydocket.com/news-alerts/doj-keeps-changing-how-it-describes-california-list/
[5] Yunior Rivas, “Trump DOJ’s bid to stop California ballot counting returns to federal judge after 9th Circuit dismissal,” Democracy Docket, October 27, 2026, https://www.democracydocket.com/news-alerts/trump-dojs-bid-to-stop-california-from-counting-ballots-heads-back-to-court/
[6] Devlin Barrett and Kellen Browning, “On Trump’s Order, Justice Dept. Seeks to Block Alaska Vote if Republican Loses,” New York Times, October 23, 2026, https://www.nytimes.com/2026/10/23/us/politics/justice-dept-alaska-senate-race-sullivan.html
[7] United States v. State of Alaska, 3:26-cv-00376, (D. Alaska), Document 1, October 22, 2026, https://storage.courtlistener.com/recap/gov.uscourts.akd.80263/gov.uscourts.akd.80263.1.0_2.pdf
[8] Billy Witz, “Alaska Asks Court to Halt Trump’s Effort to Block Votes in Senate Race,” New York Times, October 27, 2026, https://www.nytimes.com/2026/10/27/us/alaska-election-doj-trump-lawsuit-sullivan.html
[9] Richard J. Hasen, “The DOJ Just Telegraphed Trump’s Biggest Election Target,” Slate, October 23, 2026, https://slate.com/news-and-politics/2026/10/2026-midterm-news-doj-alaska-trump-fraud.html?gift_token=eTi6jUaJRB2os0SnVj_-uA
[10] Quinta Jurecic, “0 for 26: The Trump Administration’s Astonishing Losing Record,” The Atlantic, October 15, 2026, https://www.theatlantic.com/ideas/2026/10/doj-lawsuits-voter-rolls-losing/689003/
[11] Steve Vladeck, “259. DOJ’s Preemptive Election Interference,” One First, Substack, October 26, 2026, https://www.stevevladeck.com/p/259-dojs-preemptive-election-interference
[12] Mic Farris, “Bad Match,” Decisions, September 26, 2026, https://www.micfarris.com/articles/bad-match
[13] Isabella Aldrete, “Feds say 15K noncitizens are on Nevada voter rolls; SOS calls it 'wildly speculative',” The Nevada Independent, July 17, 2026, https://thenevadaindependent.com/article/feds-say-15k-noncitizens-are-on-nevada-voter-rolls-sos-calls-it-wildly-speculative
[14] Ibid.
[15] Tabitha Mueller, “Trump admin quietly walks back claim of 16K noncitizens voting in Nevada,” The Nevada Independent, August 21, 2026, https://thenevadaindependent.com/article/trump-admin-quietly-walks-back-claim-of-16k-noncitizens-voting-in-nevada
[16] Eric Nuegeboren, “185 noncitizen voters flagged by Trump admin in Nevada are likely citizens, state says,” The Nevada Independent, September 24, 2026, https://thenevadaindependent.com/article/185-noncitizen-voters-flagged-by-trump-admin-in-nevada-are-likely-citizens-state-says
[17] Nick Corasaniti, “From 16,000 to 185 to Zero: Trump’s Claims of Illegal Voting in Nevada Fizzle,” New York Times, September 24, 2026, https://www.nytimes.com/2026/09/24/us/politics/nevada-voters-homeland-security-trump.html?smid=nytcore-ios-share
[18] Mic Farris, Local Democracy in America, Amazon Kindle Direct Publishing, 2025, https://www.amazon.com/Local-Democracy-America-Elections-Self-Governance/dp/B0FQ65XSVB/ref=sr_1_2
[19] Resolution 94-207, Thousand Oaks City Council, adopted October 4, 1994.
[20] Stephanie Simon, “Council, Candidates to Debate Plans to Fill Possible Vacancy,” Los Angeles Times, October 4, 1994.
[21] Minutes of the Thousand Oaks City Council, December 13, 1994, January 3, 1995, and January 17, 1995.
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