In the face of Donald Trump’s non-stop, increasingly desperate efforts to bully state and local officials and undermine confidence in free and fair elections, we see courageous lower court judges — as well as voting rights activists and their litigation teams— have stepped up to preserve the sanctity of our elections. While diligence is always advisable, Trump’s shameless campaign to prevent the normal, free, secure, and fair process of voting under the auspices of local and state officials has largely been a colossal failure. But it has not been without a struggle.
Recent litigation stemming from the unprecedented, wholly illegitimate seizure of ballots in Fulton County is a case in point. In a stellar, searing rebuke of Trump shenanigans, U.S. Judge William M. Ray II of the North District of Georgia, a Trump appointee, quashed an absurd subpoena the Trump gang tried to issue through the auspices of a grand jury. It sought the “name, position/function, residential and email addresses, and personal telephone numbers” of every election official who:
[R]eviewed Mail-in Ballots, were assigned to the Voter Review Panel/Board, assigned to any Mobile Voting Location, were involved in the transferring of results or transportation of ballot stock or media, worked in or for the Fulton County Board of Registration and Elections generally, worked or volunteered on election day to review or tabulate ballots, worked or volunteered in the Risk Limiting Audit, worked or volunteered for the Recount, and/or served as precinct managers and assistant managers, for the November 2020 General Election in Fulton County.
Ray refused to play along with one of the higher-profile efforts to intimidate local officials and sow the seeds of chaos in advance of the midterms. Trump never came up with evidence to prove his cock-and-bull theory that he had been robbed of re-election — failing to get local officials to “find” 11,780 votes to make up the popular vote deficit — since, as Ray stressed, the election was long over and certified.
Even if these records led to the DOJ finding individuals who worked for Fulton County in the 2020 Election who support the theory that it was not free and fair, they would not yield “information that could be used to charge anyone with anything, at least not any viable charge,” Ray found.
Judge Ray also highlighted the authoritarian nightmare that awaits should courts permit this sort of fishing expedition: “Anyone in power (perhaps the next administration of a different party) could use the Grand Jury process similarly to subpoena personal information of citizens (perhaps that of their political opponents) with no legitimate law enforcement purpose,” Ray wrote. Were a private company to allow such information to be released, “such company would most likely be sued in a data breach class action lawsuit.”
Ray concluded that “everyone, whether you support the President or you do not, or whether you believe the 2020 Election was fair or believe that it was not, should be concerned about the DOJ’s ability to utilize the power of the Grand Jury to appropriate your private information without a legitimate purpose.”
He thus refused to become a handmaiden to Trump’s scheme to “investigate a time-barred crime, indict a defendant or defendants, and allow pretrial procedures to begin, when the conclusion is inevitable—the statute of limitations on the relevant crimes has run.”
For months, the Trump Justice Department goons have tried to create a phony, error-filled national voter roll, meddle with the U.S. Post Office’s delivery of ballots, and force states to turn over unredacted voter rolls (losing to date 0-11 in lower courts, 0-1 in appeals courts). Tenacious lower court judges have diligently defended the constitutional system in which states and localities have primary responsibility for the operation of elections.
This crucial work is all the more critical given the slim thread by which election law sanity hangs at the Supreme Court. Yes, it struck out at the Supreme Court in Watson v. Republican National Committee, allowing states to set their own rules regarding the deadline for receipt of mail-in ballots. But the closeness of the decision was beyond alarming. As Rick Hasen explained, Mississippi’s argument that it had the right to count ballots arriving soon after Election Day may have seemed “obvious,” but the four dissenters did not think it so obvious. In other words, we are one MAGA Supreme Court justice away from “a bonkers reading of a federal statute on the basis of voter-fraud fantasies… [that] would have signaled that the court would avoid text, history, and precedent to further constrict voting.”
Trump will not relent in his ever-more desperate scramble to find excuses for discrediting midterm elections that are threatening to wipe Republicans from power. He continues to bully, threaten, and extort local officials by, among other things, vowing to prosecute hardworking public servants and withhold funds for FEMA and other urgent purposes unless authorities turn their voting procedures upside down.
Given all this, John Keller and Chelsea Rice at Just Security point to the critical role federal magistrates now play in holding the line in defense of free and fair elections. It’s these judges who will review and, if common sense and the rule of law prevail, provide the “last meaningful check before a federal investigation can disrupt an election.”
As in so many other cases, the Trump regime should have forfeited the presumption of regularity (i.e., the benefit of the doubt that the government acts in good faith) through repeated, cynical, and outrageous maneuvers to disrupt the ordinary operation of elections. Keller and Rice advise judges “to apply heightened scrutiny: to ask whether the seizure is truly necessary, whether less intrusive means would serve the public’s interest, and whether approving a warrant without limiting the means of execution to copying and/or inspection would strip election officials of materials they need to count votes and certify results.”
When the MAGA regime is out of power, there will be ample opportunity to review and hold accountable Trump Justice Department flunkies’ gross illegality, professional malfeasance, and reckless disregard for democracy. In the meantime, Americans are in debt to judges such as William Ray, whose undaunted and courageous decisions have held the line against the most ludicrous attempts by any president to subvert elections and cling to power. They deserve our gratitude for serving as a critical line of defense for the most important elections of our lifetime.
Good news again on the judicial front!
It's good to hear that there are still those with access fighting for democracy. All of us must do the same!