In Part One of this three-part series, Pat Merloe explored the impact of the political environment, the need for constitutional defense against power-grabbing, and the malign effects of proof of citizenship on voting.
In Part Two, Merloe explored the harmful effects of Executive Orders, the reversal of the Justice Department on voting rights, and the effects of political retribution.Part Three: Attacks on the Courts, and the Need to Defend Universal and Equal Suffrage
As noted in Parts One and Two of this series, multipoint attacks against trustworthy elections are underway with just 16 months until 2026’s voting and less time before off-year elections this November. Awareness of the attacks – and those fortifying trustworthy processes – is crucial for defending democracy.
Unless we mount an effective defense of trustworthy elections and broader democracy, Donald Trump’s prediction that “We’ll have it fixed so good, you're not going to have to vote” could become reality. Determining how to join in that defense is a responsibility of democratic citizenship.
Increasing Belligerence in the Political Environment and Acquiescence to Overreach
Summer temperatures heated up in the last weeks, and so did belligerence in the political arena. President Trump referred to Democrats as evil, alongside other bellicose pronouncements, and the Defense Department withdrew from the Aspen Security Forum, which a Department spokesperson condemned as an “event that promotes the evil of globalism… and hatred for the president of the United States.” Such defamatory rhetoric vilifies political opponents and poisons the electoral environment.
The Administration is retaining 2,000 of the military troops it deployed to Los Angeles, despite the city’s mayor and the state’s governor wanting none, and is calling for all of them to be withdrawn. In the face of democratic socialist Zohran Mandani winning the Democratic Party mayoral primary in New York City, President Trump, in addition to making false claims about him, suggested at a Cabinet meeting that the federal government might take over the city if Mandani won the general election. That is yet another ominous indication that elections can be ignored if he chooses.
Following its passage of the MAGA One Big Beautiful Bill, Congress passed a bill rescinding $9-billion of previously authorized funds. It targets PBS and NPR, striking a blow to the integrity of information, which is vital to trustworthy elections, and it further undermines foreign assistance mechanisms. And, on July 17, Marco Rubio issued a memorandum severely restricting the State Department from commenting on foreign elections, further downplaying the importance of trustworthy elections in US policy.
Actions to implement Trump’s overreaching executive order on elections (EO 14248) also continue.
Predictably, the DOJ used the recent Supreme Court Decision in Trump v. CASA, which restricts lower court “universal” injunctions, to demand that the partial injunction against the EO be limited. Numerous “red states” are taking measures outlined in the EO, including at least 15 states using voters’ personal information obtained from the US Citizenship and Immigration Services, Social Security, DOGE, and other sources. And, some states are receiving requests for inappropriate access to voting technology under the guise of implementing the EO. Such developments underscore the importance of politically impartial and independent courts as a means to curtail illegal or otherwise inappropriate executive actions.
Attacks on the Courts Undermine Electoral Justice
Courts are a principal battleground in the arena of executive power-grabbing. Approximately 300 cases are currently active, and more than 180 rulings have limited the Administration’s actions in some respects. MAGA responses to unfavorable rulings include slow-walking court requests for explanations to the point of ignoring them, attacking the integrity of judges, and calling for their impeachment. MAGA proposals in Congress would limit judicial power, and the Supreme Court’s conservative majority has restricted lower courts and acquiesced to executive overreach.
Attempts to restrict judicial powers via the One Beautiful Bill were stymied when the Senate Parliamentarian determined that they were outside budget reconciliation rules. The House version of the bill would have retroactively limited courts’ powers to enforce judgments by holding an actor in contempt and imposing penalties for it. The Senate version replaced that with a draconian provision that would require plaintiffs seeking injunctions against the government to post a bond equal to the potential governmental “costs and damages” in the matter. Such multimillion-dollar bonds would block citizen groups, such as Democracy Forward and Protect Democracy, as well as civil rights organizations and pro bono law firms, from seeking injunctions against harmful governmental actions.
Similar attempts will likely be part of other proposed legislation. If such provisions become law, the ability of federal courts to constrain executive branch power-grabbing would be crippled. Nonetheless, recent Supreme Court rulings impede the ability of lower courts to contain power-grabbing.
The Supreme Court’s recent decision in Trump v. CASA severely restricted lower federal court powers to restrain executive branch abuses by issuing preliminary injunctions that have “universal” application, which apply throughout the nation for the benefit of all affected persons, even if they are not parties to the suit. While avenues, including class action cases, remain to challenge executive misconduct, the decision will likely encourage the MAGA practices of power grabbing and executive overreach. Judicial processes may be hampered by the need for multiple suits and/or elevated demands on the Supreme Court’s emergency docket. Improper federal actions in the elections arena – and many others – could consequently become much more difficult to constrain.
The July 14th Supreme Court ruling in McMahon v. New York allowed President Trump to mass-furlough Department of Education personnel while 21 states pursue their lawsuit against eliminating the agency. The one-paragraph order undermines the lower courts' ability to prevent harm. It would have devastating effects if applied to MAGA actions that hinder election administration and/or block the certification of election results.
The Court’s rulings and legislative developments are taking place amidst a barrage apparently aimed at destroying public trust in the judiciary. Attacking the credibility and patriotism of judges who rule against the Administration, possibly even baiting courts to rule against them to generate further ammunition to use against them, has electoral implications. Following the 2020 presidential election, the Trump campaign lodged more than 60 cases before state and federal courts, winning just once. There were, nonetheless, very few MAGA attacks on those courts, perhaps in part because the ground had not been prepared for such attacks.
The current environment is very different, including direct threats to the security of judges. Chief Justice John Roberts highlighted violent threats against judges in his December 2024 annual report. Ominously, hundreds of unsolicited pizza deliveries to judges' homes in at least seven states are under investigation, one of which included the fatal shooting of a judge's son by a fake pizza deliverer.
A significant effort to bolster public trust and appreciation of the crucial role of the independent judiciary, the Article-III Coalition, was recently launched by Keep Our Republic (KOR). The Defending the Judiciary initiative of Duke Law School’s Bolch Institute provides what-to-do resources, and the ACLU is sponsoring a letters-to-Congress effort. However, much more is needed to defend impartial and independent courts.
Defense of Universal and Equal Suffrage Is Key
A crucial arena of electoral defense is securing genuine opportunities for eligible people to register to vote. MAGA drives seek to deny that through overly burdensome ID requirements (including those less onerous than proof of citizenship). They also seek to block civic groups from conducting voter registration initiatives, and they propose mass voter list purges to stifle those opportunities. The pitched battle over North Carolina’s 2024 Supreme Court election demonstrates the comprehensive MAGA approach of challenging losses by attacking voter registration after election day.
Equal suffrage also includes trench warfare over the drawing of fair election districts at the congressional, state, and local levels. Equivalent ratios of voters to representatives and drawing district lines that do not divide and dilute the voting power of various population groups are key to equal suffrage. The DOJ filed a brief on June 20 in federal court, siding with Alabama, which is defending its congressional maps against allegations of racial gerrymandering. The DOJ action is significant in itself and a clear indication of the Administration’s hostile stance as fair maps are being fought for in multiple states. Organizations dedicated to ensuring fair electoral maps, like All On The Line and the Election Reformers Network, are mobilizing a defense on that front.
Universal and equal suffrage is more than just an electoral catchphrase. It embodies the democratic maxim that all individuals are entitled to an equal voice in choosing who represents them in government. It is a manifestation of the Declaration of Independence’s precept that all are created equal and endowed with certain unalienable rights. And, it is the foundation for genuinely democratic elections.
Honest elections are a sovereign act by the people, and the authority of democratic government derives from them. Like universal and equal suffrage, elections are much more than complex administrative processes of registration, voting, counting, and honoring the electorate’s will.
To be freely expressed, the people’s will must be free of administrative hindrances and subterfuge – and from interference in forming political choices. Intimidating, including: creating fear of political retribution for voting, properly administering elections, and providing impartial, independent electoral justice; portraying opponents as “enemies from within” and failing to condemn political violence against them; arresting those who speak out against policies; and fabricating false states of emergency – all bash the ramparts that protect free political choice, free and fair elections and democratic governance that is to flow from them.
The bombardment of genuine election processes is an attack against the democratic heritage of all Americans. Reinforcing the bastions of trustworthy elections, including aiding those who are taking up the front lines and enlisting those we can help mobilize, is crucial for our defense. Determining how to contribute to that should be part of contemplating our commitment to democracy.
Pat Merloe provides strategic advice to groups focused on democracy and trustworthy elections in the U.S. and internationally.
