Actions possible in 2026 election

How will federal and state courts handle post-election disputes in connection with the closely contested 2026 midterm elections? Can the Speaker of the House simply choose not to seat members of Congress from the other party who have appeared to run the election? How have courts and Congress historically dealt with very close elections?

On Season 7, Episode 5 of the ELB Podcast, we speak with Ned Foley, Rebecca Green, and Derek Muller.

Welcome to the ELB Podcast. This is Rick Hasen of UCLA School of Law and the Election Law Blog. The following is a recording of a March 31st, 2026 Safeguarding Democracy Project webinar featuring Ned Foley of Ohio State, Rebecca Green of William & Mary, and Derek Muller of Notre Dame.

Opening Remarks

Welcome to you all. Thank you all for being here. There's a lot to cover. We only have an hour to do it. And so I've asked each of our panelists to address different aspects of the question of myths and facts about contesting elections in 2026. What might it look like?

We're going to go to Rebecca, Ned, and then Derek. After they've each given a short presentation, I will ask follow-up questions.

And with that, let me turn things over to Rebecca.

Rebecca Green — The Role of Courts in Post-Election Litigation

REBECCA GREEN:

Great. Well, thank you so much, Rick, for having us. And I'll jump right in. So my job today is to lay out some of the basics regarding the role of state and federal courts in post-election litigation as a foundation for the rest of the discussion.

But before launching into this, I thought I would stress a few points.

The Margin of Litigation

First, our host, Rick, coined this term "margin of litigation." Generally, post-election litigation doesn't even happen unless an election is close. And it has to be really close. So 20,000 votes, for example, in a U.S. congressional district is not close.

Candidates, attorneys will tell them that even when the spread is only a couple hundred votes, post-election litigation very rarely changes the result. It's extremely costly and a largely uphill battle. This is something that, of course, we all saw up close in 2020. The point is that results really dictate whether post-election litigation occurs.

More to the point, when it comes to congressional elections in 2026, large partisan margins in Congress will significantly dampen incentives for post-election litigation. In the lead-up to 2024, I'm sure everyone remembers, there was a lot of hand-wringing about post-election litigation in that election. It didn't materialize because the electoral college math wasn't there and because the sore loser won.

But I remember sitting in a studio the day after the election in D.C., I was supposed to talk about post-election litigation questions. And the producers switched topics at the last minute because of the results, the stories had sort of dried up. I guess the bottom line is that we should all be saying some U.S. congressional version of the election administrator's prayer, which goes something like, please Lord, let the spread in the U.S. House and Senate be large.

State Courts Handle Most Election Disputes

A second point is that when it does happen, state, not federal courts, manage the vast majority of post-election litigation. Of course, federal courts do play a role, as we'll be talking about in this session. But for the most part, state courts oversee post-election litigation in two primary contexts.

Recounts

First, of course, is recounts, which happen obviously when elections are really close. In some states, narrow margins will trigger an automatic recount and others, they are generated by candidate requests. In most states, recounts are administrative and don't involve courts.

In some states, like Virginia, courts will supervise recounts. And in other states, it's a hybrid approach where our courts may supervise some aspect of the recount.

Election Contests

A second form of post-election litigation, which is the focus, I think, of today's discussion, are election challenges, which are called different things in different states. Sometimes you'll hear contests, sometimes you'll hear protests, and they all have different technical meanings depending on how the state statute lays it out. But essentially, a challenge is a post-election allegation that there's been some aspect of the election that was improper or unlawful. And generally speaking, challenges are heard in state court, though

in U.S. congressional elections, as Derek's going to discuss, the House and Senate are the final arbiter of who each chamber will seat. So in challenges, state courts apply state law, state election law, and follow state timelines, making it a little bit difficult to generalize about how these processes play out. But what's important to emphasize about contests and recounts is that they're routine. We've seen lots of recounts and

challenges in this country over the years, as Ned and others have written lots about. Some make headlines, many do not. But state courts are well-versed in adjudicating post-election challenges, especially since Bush v. Gore, many states have revised their post-election litigation procedures and rules to ensure timely and accurate counts. ### When Federal Courts Become Involved

So when do federal courts get involved in post-election litigation? We all got a lesson on this question

in 2000 in Bush v. Gore. The federal court essentially will take jurisdiction if a federal question is raised. But there's a very complex interplay, of course, between state and federal courts in those circumstances.

Case Study: Griffin v. North Carolina State Board of Elections

So we saw a recent example of this in Griffin v. North

Carolina State Board of Elections. In November of 2024, Jefferson Griffin lost his state Supreme Court election in North Carolina by 734 votes to Alison Riggs. There were two recounts that confirmed the outcome. But Griffin's post-election approach was very aggressive. Some are looking at this case as a test run for what candidates could try in 2026.

What happened was that Griffin immediately filed hundreds of protests in North Carolina State Board of Elections, and the state board rejected all of them. He then went directly to the state Supreme Court, challenging the board's decision, and he was seeking to invalidate more than 60,000 votes. The votes that he was challenging were in three broad categories. One was voters with allegedly incomplete voter registrations. Another was certain absentee voters from a handful of counties who failed to include a copy of their photo ID with their ballots.

And finally was a group of voters who were never North Carolina residents, but they were children of residents or dependents born abroad. And so in all of these cases, the voters had followed official state instructions, but those instructions were, Griffin argued, not consistent with state law.

So Justice Riggs and the state board of elections argued that those voters had relied on state election official instructions, and so their ballots should count. And the case ended up spanning from just after the election in November until May of the following year.

And it involved a really complex interplay between state and federal courts. The state board tried to remove the case to federal court. The Fourth Circuit ultimately decided to let the state litigation proceed, and the state appeals court ended up issuing an opinion that would have allowed a cure period for some of the effective voters to cure their ballots, but it put hundreds if not thousands of ballots at risk.

The state Supreme Court then narrowed that lower court ruling, but at that point, Justice Riggs filed an emergency motion in federal court seeking to enjoin the North Carolina Supreme Court's decision. And on May 5th, about six and a half months after the election, the federal district court finally ended it. So the federal court in that case held that the North Carolina Supreme Court's remedy violated the federal constitutional rights of those challenged voters.

Lessons from Griffin

And just to read from the opinion, this case concerns whether the federal constitution permits a state to alter the rules of an election after the fact and apply those challenges retroactively to only a select group of voters, and in so doing, treat those voters differently than other similarly situated individuals.

And I hope as this setup implies, the federal court found that invalidating those votes would violate the equal protection clause and the due process rights of those voters.

So Jefferson conceded. And I think the takeaways from that dispute was that first, the sheer number of ballots challenged in North Carolina could signal a new strategy.

Maybe there's now an appetite to cast a wide net to hunt for election irregularities after the fact. But I think the outcome in Griffin should give pause to that strategy because courts generally don't look favorably on losing candidates who wait till after an election to try and disenfranchise large numbers of voters on technicalities. And second, federal courts are very likely to stay out of it unless a state outcome disenfranchises a substantial number of voters or a state process is otherwise patently unfair. So I think I'll leave it there and get to the more gritty questions next. Thank you.

Rick Hasen — Transition

I should note since you talked about the margin of litigation that we just had a primary also in North Carolina involving Phil Berger, who was arguably the most powerful legislator in the state, and he lost by 23 votes in the primary. And that was not challenged. And so the margin is often very, very narrow indeed. Contrary to what I said earlier, we're next going to go to Derek and then we'll turn to Ned.

Derek Muller — How Congress Seats Members

So Derek, thank you for joining.

DEREK MULLER:

Of course. Thanks for having me.

Why the Margin Matters

So I want to echo Rebecca's point on the margins here. As we think about, especially control of Congress, there will be other races we care about, state Supreme Court elections, gubernatorial elections, whatever it might be, but we'll spend some time thinking about Congress.

I think this conversation looks very different if it looks like one party is going to win by a margin of 10 to 12 seats in the House of Representatives, as opposed to winning by a margin of one seat. If it's one seat, kind of all bets are off in some respects, and especially if that one seat is by a margin of six votes, as happened to one seat in the House of Representatives in 2020 in Iowa.

So I want to operate at least at first with an anticipation there's going to be some margin. Maybe that's not the case, but we'll think about what that margin might look like.

And the bottom line is as we think about the role of Congress or seating members in Congress, my bottom line at least is that you can kick some sand in the gears and maybe slow things down, but I think the opportunities for actually subverting election results are probably less than many would anticipate.

These are famous last words, of course, but we'll see if I can convince you about that. So as Rebecca indicated, there are lots of post-election mechanisms to adjudicate disputes, to file recounts, to audit the results, to file contests, whatever they might be.

Certificates of Election

When that's all done, and sometimes even before it's done, an earlier stage in the process, the state issues a certificate of election. It's a formal process required by federal law for members of the House of Representatives, for senators, and that essentially is your entry ticket into the new Congress.

What Happens if an Official Refuses to Certify?

And there has been discussions in the past about what happens if an election official or the secretary of state or the governor refuses to sign the certificate of election? Can you somehow undermine the election if that happens? And that's probably not the case.

Again, you can slow things down, but we've seen, not only in the last few years, but we can go back 130 years, and maybe Ned can talk about some of those examples about where individuals attempt to subvert the results of an election by refusing to sign certificates, and courts step in and intervene, and petitioners show up and say, hey, all this person has to do is put his name on the certificate, put her name on the certificate.

And as a result, courts issue what's called mandamus, ordering officials to do it. If the official still refuses, which hasn't happened many times these election boards in recent years, including a 2022 dispute in Otero County, New Mexico, the election officials comply after the lawsuit. If that doesn't happen, federal courts can order someone else to do it. State courts can order someone else to do it.

And it has the same effect under law as if it were done by that governor or secretary of state or whoever is supposed to do it. So there are very quick mechanisms in the law to allow this sort of order of ministerial, non-discretionary duties, boring stuff, like signing certificates, that allows you then to have that entry ticket to get into Congress. And then we think about how Congress handles these things. I'll focus mostly on the House for now because I think that's where a lot of the consternation or discussion has happened in recent months.

January 3: The Old House Ceases to Exist

So on noon, on January 3rd, the House of Representatives ceases to exist. There is no Speaker Johnson. He is no longer Speaker. He is no longer a member of Congress. Neither are any of the 434 other members of Congress. Congress is dissolved. So any thoughts about subversion from an old Congress to a new Congress just simply can't happen. The old Congress is gone as a simple matter of the constitutional structure under the 20th Amendment. So now you have to create a new Congress.

And so these new members show up with these certificates of election. They present them to the clerk. There's been discussion about what happens if the clerk just doesn't accept the certificates. The clerk has. The clerk historically has done so. The body can actually

vote to overturn the decision of the clerk. The clerk is also not in the House of Representatives. And while there are sometimes political question challenges about what the House does, I would think courts would have no problem ordering somebody who is not the House of Representatives to accept certificates of election.

The Clerk's Role

So the clerk takes these certificates and sort of identifies who's in the audience there and says these people can participate in what's called the Speaker's election.

Election of the Speaker

And so they get together and they vote for Speaker. And as we saw very recently, that can be very dramatic maybe

sometimes in many previous years. It's a fait accompli, but this could last for days potentially if there's a dispute. But suppose Democrats control the majority of the delegation. They will elect Hakeem Jeffries as the Speaker. And he will sort of take over then sort of this ministerial task as having the majority of votes to now preside over the session.

Swearing in Members

And then he will swear in the members of the new Congress and everyone will stand up and they'll be maybe not 435, 434, 433. It depends on how many have finished their disputes or if anyone's died or resigned or whatever it might be. And they'll all be sworn in. Now sometimes some members will object to the swearing in of members. And then typically the members then vote whether or not to seat that person. No one has been excluded

since 1985 after a very disputed election in Indiana. Since then everyone who's been challenged has been seated. Traditionally those people whose credentials have been challenged in recent years have stood aside. But you can imagine if this is a mischievous objection that there's other precedents that would suggest those contested members can actually participate in the election. And so if it's a majority Democratic Congress, you would think a majority would permit them to be seated and then we would sort of move on from there and they would all be seated and we would move on.

Contested Elections in Congress

And then if you want to,

you can file a contest which happens regularly in Congress, usually three or four a year, where somebody, a loser of an election, files a petition under the Federal Contested Elections Act. It says, hey, I think I'm the rightful winner of this seat and I want the House of Representatives to be the final adjudicator of this. And they'll hold hearings and they'll evaluate the evidence. And this has not happened since, I think, the 1960s or might be one of the 1970s, has not happened in 50 years that there's been a contested election through this mechanism that has thrown out an election. Usually the evidence is just not there. And while this challenge is churning, the seated members are

still in Congress. Those who presented their certificate of election are the ones who are there. They're provisionally certified or they serve until there's some adjudication that would otherwise oust them. And again, because the majority in the Congress is going to have the control and the decision-making authority about whether or not to eject those members, if that's the result. ### Bottom Line

So there's a pretty normal process. And in most years it moves

kind of without much of a hitch. There are these points that show up, whether it's the certificate or speaker election or the stand aside for seating or election contest, they happen. They've happened in recent years. They have not resulted in anything that's been particularly dramatic since 1984. And so my anticipation is those things would continue to happen. Although if there are objections or attempts to throw sand in the gears,

you might see some things slow down. But again, it's very hard to overturn those results or subvert the outcome of the election as a bottom line matter. Maybe we get some more questions as we get forward, but that's sort of the basic structure from the end of litigation up through how that new Congress is seated.

Rick Hasen — Transition

Thank you. I've got a lot of follow-up questions, but I'm going to hold myself back and turn to Ned, who's going to give us a bit more of the historical perspective. Great. Yes. Thanks, Rick, for organizing this.

Ned Foley — Historical Perspective

NED FOLEY:

And I'm going to pick up where Derek left off by talking about a couple of examples. Back in the 19th century, so you have to go far back in American history to see things that got ugly. And hopefully we won't see these kinds of things this year, but it's useful to know what has happened in the past because it could happen again. And like Rebecca and Derek, I want to emphasize that the scenarios that I'm discussing only apply when control of the House of Representatives is at stake. In other words, there's enough disputed specific seats that might make a difference whether or not one party or the other party is the majority party in the House.

If there's just a single seat at issue and it doesn't affect partisan control, that seat obviously matters to the candidates and to the voters in that particular district, but control of the House as a body is not at stake. And as Derek said, the House is special in that it doesn't exist until it reorganizes itself. And that's why the moment at which the House reconstitutes itself at the beginning of the new Congress on January 3rd is a special moment in law because it has to recreate itself with each new Congress. And if there's a dispute as to which party is the majority party for voting on speaker, that is where things can get a little dicey.

Why January 3 Matters

And to that point, before I discuss these two specific examples, let me emphasize the need

for speed. The idea that things could be slowed down in the state court or federal court litigation such that as they're not resolved by January 3rd, that's something to be aware of. Again, if that's a seat that could make a difference as to which party is the majority party. Rebecca mentioned a dispute that lasted until May of the following year. It wasn't a congressional dispute, but there are congressional disputes that last until May or June or July. And again, if it's just one seat that doesn't affect the partisan control,

that district is not represented for a period of time and that's unfortunate, but it doesn't really affect the body as such. But if one or two or three seats would make a difference as to which is the majority party and those disputes are not resolved by January 3rd, that could be significant. So I would encourage states to really make sure that they could resolve disputes if at all possible if they happen by January 3rd. So we have 435 people showing up with the kind of certificates that Derek mentioned and Congress can simply organize itself based on those 435 certificates.

The Broad Seal War (1838)

Okay, let's go all the way back to 1838 in an episode that got the name the Broad Seal War. Fortunately, no guns were fired, although there was some talk of military conflict if the situation couldn't be resolved. So it was an ugly moment in American history. And what happened was that there were five house seats from New Jersey that were all disputed. And I won't go into the details of the dispute at the state level. When it got to the House of Representatives, the problem was that there were two sets of certificates that came from New Jersey to the House clerk. One set was signed by

the governor of New Jersey with the so-called Broad Seal of the state. That's why it was called the Broad Seal War. And that was thought to be the prima facie, more authoritative set of certificates, because it was coming from the governor. But the secretary of state, who was from the opposite party, sent competing certificates saying that the other party's candidate had won. And the best evidence was that the truth of the matter was that the voters in the relevant districts had supported the Democratic candidate, whom the secretary of state was certifying, so that even though the governor's certificate was the truly authoritative one from the state, the other certificates was the more substantively correct one, if you will.

So both sets came to the House, with the clerk receiving them, and the issue was what was the clerk going to do. The clerk happened to be appointed by a Democratic majority in Congress from the previous Congress. And although an argument was made that the clerk should have simply accepted the governor's certificates as the legally valid one and rejected the secretary of state certificates, what the clerk did was said he was going to refuse to accept any of them and call for the vote for the speakership without any seating of members from these five seats. Well, then the House kind of exploded in a commotion in terms of what to do.

Ten people actually showed up on the floor of the House claiming the five seats. Were ten people going to be allowed to vote on who was eligible to vote for speaker, or only five, or zero, or some combination? And it was like a cat trying to chase its tail. There was sort of a chicken and egg problem. There was sort of no first principle or first procedure for the House to resolve itself, because the first thing the House was supposed to do was elect a speaker, but they couldn't elect a speaker until they could figure out who could vote on a speaker, and they couldn't figure out who could vote on a speaker until they figured out who was the majority party to control the outcome.

Ultimately, what happened was that John Quincy Adams was an undisputed member of the House, having previously served as president, the only time a former president had run from the House and was elected to the House. And he simply walked to the front of the room and said, I'm going to act as chair of the body temporarily to resolve things, and he managed to get away with it. He had no legal authority, but he sort of by force of personality and force of will said, you know, make your motions and I'll rule on them, and he did, and he managed to break the logjam after about 11 days of complete turmoil. So, you know, that's one episode in American history to think about. We don't really have a John Quincy Adams at the moment, I don't think.

The 1863 House Organization Crisis

The other one that I'll mention very briefly is 1863. So this is after the congressional midterms in 1862. It's a crucial midterm because Lincoln and the Republicans need to control the House in order to fund the Civil War, which is not going well at the moment. The Democrats at the time are the Peace Party wanting to stop the Civil War and cut a deal with the secessionists south. So Lincoln's determined to keep control of the House, even to the point where he's worried that he might have to send troops onto the floor of the House, which would be an amazing move for a president of the United States to do. Thankfully,

it didn't come to that. There were about 16 seats that were disputed or potentially disputed from border states because there were allegations that the military had interfered with voting in the border states, and there was a fear that the clerk of the House, who had been appointed by Republicans, a Republican majority, but had signaled that he was leaning to supporting the Democrats because he didn't like Lincoln's Emancipation Proclamation, that he was going to deny the seating of these 16 supposed elected members who were Republicans or supporting Lincoln from the border states. He actually did that, much to the Lincoln's objection, but it didn't end up affecting the partisan balance of the House. The Republicans still controlled because several Democrats refused to go along

with the plot and broke with the plan that the clerk and the Democrats had hatched to by denying the seating of these 16 people, that that would give the power of the House to the Democrats. They would elect their own speaker and then refuse to seat the other 16 people permanently. So it was thought to be an attempted coup by the Democratic party that failed because not every member of the Democrats went along. So let me stop there, Rick, and turn it back to you.

Panel Discussion

Thank you. I have so many questions. We have about a half an hour. I thought you were going to hit on the bloody eighth, which I'm going to want to come back to, which was the dispute that Derek briefly alluded to when he talked about 1984. But I first want to start with just a very basic question. I know we have a number of journalists who are watching this webinar.

Where Should Journalists Watch?

When we have a presidential election and it's close, we kind of know which states it's going to be close to. We have those battleground states.

It's going to be Pennsylvania, it's going to be Wisconsin, Ohio, Florida. These have changed over time. But if we have a close House race, do we have any sense of where this might happen and how good is the election administration in those places? Where are the competitive seats going to be if it's close? I don't know if any of you have any sense of that. Where should

people be watching over the next few months? Cook Political Report. They rate how competitive each House seat is. Even if you don't subscribe to their paid newsletter, it's publicly available what seats they consider genuinely contested versus what they consider safe. You can tell what states the truly competitive seats are from.

Election Administration in Competitive Districts

I'll just add that this is what makes election litigation so difficult is that it's like lightning after you don't know where it's going to strike. It can strike in places where a judge may not have heard an election case before or it may not be like one of the swing states where it's very routine to see these kinds of fights. It is important that state judiciaries ensure that their members are up to date and have access to resources to hear those kinds of cases. But I will say that I think since Bush v. Gore, states have been on notice, state judiciaries have been on notice, and it's sort of a different situation than I think it was prior to that election.

Mike Johnson and Seating Members

So my whole impetus for wanting to do this panel was some popular writing about Mike Johnson, the speaker, somehow not seating Democrats if it's really close. And I think Derek has told us why that's not the case given that there will be no Speaker of the House come January 3rd.

Discussion: Ballot Seizures and Chain of Custody

But let me tell you about my fear. My fear now has to do with attempts to seize ballots. We saw recently the Department of Justice go and seize ballots in Fulton County, Georgia, purportedly to investigate some potential criminal activity related to the 2020 election. So these are not live ballots. We've just seen a sheriff

in Riverside County, California, seize ballots, supposedly looking for crimes related to the recent statewide election over a proposition that changed the district lines for electing members of Congress. How does the potential for federal or state or even local interference play in with kind of a that's not something we normally see in election litigation. If something like that is attempted, how does it how could it potentially affect the outcome of elections? And maybe we'll start with you, Derek.

DEREK MULLER:

Yeah, I mean, I have two, two initial responses to this. One, I wrote a piece in the conversation, which I think is linked somewhere in the sacred democracy files about how courts need to be cautious when you're dealing with live ballots, you're dealing with a chain of custody. And I want Rebecca, I hope I'm triggering Rebecca to think about chain of custody in a moment. That is states have these extensive procedures they put in place on the books that go from well before election day when they're printing ballots and they're bringing them in and putting them in secure facilities before they mail them out or use them on election day to distributing them at polling places, collecting them and then maintaining them. And then under federal law, they have to hold those for 22 months after the election. But, you know, there is that period where people are worried. Well, what if it's not

a five or six year old election? And frankly, it seems the administration is really obsessed about the 2020 election and nothing else. So we'll see if they care about 2026. But what if they step in in November and want to try to intervene? First off, the FBI is required a warrant. I think federal courts are going to look at this much more differently to say,

look, seizing things in the middle of a canvas is very different. You're disrupting chain of custody procedures. You are potentially interfering with the ability of Congress to adjudicate disputes. You are undermining the ability of the states under existing law to count these things. If you want to investigate things after all this and you want to issue a preservation hold for the state to hold on to everything until after we've resolved all the disputes, maybe we can do that. And I think county attorneys,

state attorneys need to be cognizant of these things and prepare to challenge them, especially if an FBI agent tries to show up without a warrant. And if there is a warrant to be able to contest it and challenge it. So I think that's the first thing to recognize that I think courts will recognize or there is a separate interest when there's an ongoing dispute that I think is going to reduce the likelihood of stepping in and intervening. The second concern, though, is, you know, let's say it's not a or let's say it's a rogue FBI agent or election official who actually wants to help the FBI agent or somebody who is sort of subverting the results of the election. Again, we saw Tina Peters in Colorado

who sort of tampered with voting machines, again, well after the election, but sort of gave access to these voting machines. And again, now that the voting machines had to be thrown out and essentially we had to replace them because they were, what if you did that during the process? Some sort of essentially state terrorist actor who's who's doing these things. I think courts have kind of equitable power in those circumstances to ensure that rogue actors can't thwart the choice of the people. As much as if a fire were to destroy the ballots in a warehouse on November 17th before the end of the canvas.

There are multiple stages throughout the process where we've tried to tabulate the results as best we can. In most precincts on election night, and I've been a precinct election official many times, we have a tape that we print and put up in the front of the polling place and we have a copy and then we send off the ballots. And the point being, if something gets destroyed, we at least have the next best evidence, which is the tabulation we took on election night. It would be ideal to do it in the care of the county over the next two weeks, but we have something in the event that disaster strikes. So I think courts are going to be able to adjudicate these things just to ensure that if there are attempts to subvert the election, that doesn't mean

the election goes away, that there will be attempts to sort of equitably determine, maybe we can determine the actual result and the actual winners of the election. Again, it's a messy process. It's not a situation we want to be in, but to point out that as if it were a terrorist attack or a fire or a flood destroying ballots, we would try to figure out alternative ways of adjudicating the winner. And likewise, I think there would be ways that courts could move forward and ensure the will of the voters is carried through.

Constitutional Protection of Congressional Authority

And if I can piggyback on what Derek said, his piece in the conversation is a great piece and I relied on it for a piece that I wrote for the SCOTUS blog, because both of us mentioned an important Supreme Court case called Roudebush v. Hartke that came out of Indiana that I think establishes the proposition that because Congress has the power to be the ultimate judge of its own elections, each chamber of Congress, this is article one, five.

That Supreme Court case said that any state procedures, recount procedures, judicial contest procedures and so forth, can't interfere or deprive Congress of its ultimate authority, including by, you know, manipulating the ballots so much that their integrity is lost, for example. So I think it would be a perfectly appropriate injunction for a federal court to issue either against rogue state officials like Derek's contemplating or a rogue FBI agent to say, you don't have any authority under the Constitution to interfere with the article one, section five power of the House or the Senate to be the final arbiter of its own election. And we've got to preserve the integrity of the election materials so that can happen. That's why timing is very, very important and why, you know, the custody of the ballots can't be compromised that it would interfere with this ultimate article one, section five power.

https://www.senate.gov/about/origins-foundations/electing-appointing-senators/contested-senate-elections/136Roudebush_Hartke.htm

Legal Support for Local Election Officials

I'll just add, you know, I wrote a little bit about legal support for local election officials. And my conclusion was that, you know, in cities and in place, populace places, you know, election officials have quite a bit of support, but in less populated areas, you know, there is, you know, they're relying on their county attorney who does a lot of land,

you know, land use law and isn't as familiar with maybe election rules and regulations. And so I think there's a sort of spotty in other words. And so I feel like, you know, states around the country are gearing up and thinking about the legal support that they offer to local election officials, which I think will be really important if there is federal interference of any kind.

The 'Bloody Eighth' and Congressional Partisanship

Ned, I want to come back to you on the Bloody Eighth. Seems to me that when we think about real nastiness in how the House might resolve a really close election, that's the most recent example of a really pitch battle. I'm wondering

if you could just give us one or two minutes on that and what you think that might portend, because I think we are actually more polarized now. And from my read, it was the fight over the Bloody Eighth that actually contributed to the current polarization by raising the profile of Newt Gingrich and creating more animosity between Democrats, Republicans in the House.

NED FOLEY:

Yeah, that's absolutely right. The Bloody Eighth was very ugly. Again, bloody is a metaphor. No one, blood was actually not spilled, so that's good.

But it was very ugly partisanship. And by my analysis, the Democrats were the majority party in the House at the time. It was a close election. Absentee ballots were disputed. It was before Bush v. Gore. It was sort of a precursor of Bush v. Gore.

There were plausible arguments on both sides. But ultimately, what the Democrats did in the House was they switched the counting rule that they used in the middle of the counting process once they went ahead. In other words, they used one rule for how to treat the absentee ballots, and that got them to be slightly ahead. And then they switched to the opposite rule so that no more ballots could be counted. And so the Republicans really thought that it was a completely unfair process. And they were right about that, in my judgment.

And the sad truth is, I mentioned that the House under the Constitution has the power to be the judge of its own elections. That's constitutional law. That's correct. And that could be used to good effect in the way that I just said. But it's also true that we have to be accurately cynical in that once the majority party is in control of the House, it's very unlikely to give up majority control. And in the case of the Bloody 8th,

it wasn't even willing to give up one seat that the other party really won, according to the most impartial analysis possible. And so the Bloody 8th is an indication that partisanship can take over in the process. But the reason why I didn't emphasize it in my opening remarks is because it was only one seat. Yes, the Democrats treated the Republicans unfairly in that example, but it was undisputed that the Democrats were going to be in the majority party before and the majority party after. The dispute was just over that 8th congressional district in Indiana.

Audience Questions

So I'm going to turn to some audience questions after I ask this last question. And it's to Derek about something you put to the side, which is the Senate. I think it's maybe more likely that control of the Senate hinges on one vote than control of the House. I think that's some kind of statistical something that would indicate with a body of a hundred and how many are at stake. The House dissolves the Senate's continuing body. How does that impact what happens in the event that we have a very close election for control of the United States Senate?

Yeah, so because it's a continuing body, right, there's going to be six between 65 and 67 senators there on January 3rd, just a third have lost their seats and then a new crop will be sworn in. And frankly, it's probably less about the continuing body points, which can lead to these challenges with respect to the clerk or the House election and all that additional drama. I mean, they could, in the Senate, refuse to seat members if they so desired, if there was some drama with respect to that. But again, as an institutional matter, it seems that the Senate is more, I don't want to use the word functional, although I'm going to say it now for a moment, institution oriented and thinking about these things at the moment.

That is, you can imagine plenty of Republicans agreeing to seat a Democrat or plenty of Democrats agreeing to seat a Republican, even in a very close pitched battle when it comes to sort of that divisive control. So some of the scenarios that we're talking about when it comes to stand aside measures, if everyone is lockstep partisan in a very close pitched situation, it could be really problematic. And you could, in theory, have the same situations arising in the Senate.

I just think it's much less likely simply because of some of the dynamics that are operating in terms of the likelihood that senators are going to agree to seat those members without the same kinds of contests. Additionally, because it is a continuing body, you don't have, again, that friction that happens in the organization, which might lend itself to more mischief. It's just sort of routine. New senators show up all the time and help, and they replace ones that are outgoing. It's just happened in Oklahoma, so in theory it won't be as pitched. But I think you're right. In terms of odds and make or break, which matters greatly for judicial nominations and executive appointments, very well much of that control could turn on the Senate. All right. I'm going to turn to some audience questions. I think this first one, I'll start with Rebecca, which is a question I asked about the attrition of state and local election officials, meaning that they're less experienced.

Election Official Experience and Attrition

The questioner asks, you know, is that true? Like, have we lost a lot of institutional knowledge? But let me add, does that increase the chances of something getting messed up and thereby raising the likelihood that we're going to see more contested elections in 2026 than say we saw in 2024 or 2022? Yeah, so I've seen reports and reporting that there's been increased attrition of election officials. They've certainly been under the microscope for years now, and it's a difficult job with the microscope focused on them.

But I guess my feeling about it is that with so many eyes on the election, it's a bad thing in the sense that it puts a huge amount of pressure on election officials, but it's a very good thing to the extent that observers and other lawyers and others are paying close attention to make sure that rules are followed. And so if there is some inexperience that is causing an election official not to follow the rules, they'll be set straight quickly. It relies on this sort of adversarial election process where you have members of both parties with eyes on the process at every stage. And so the kinds of errors that you might expect to come from an experience aren't happening in isolation in that sense.

So I think that the system is built to try and keep it in check, not just inside election administration, but also, as I say, from outside observers and attorneys. So we have some questions about the period before tabulation. We've been focused on after everyone has voted. This question is about the potential for ICE at the polls. And so federal law bans, quote, civil, military, or naval service troops or armored men at a place where an election is held. In the event that there is an attempt to send federal troops, I don't think that's likely, but in the event that it is, is this the kind of thing that we would expect federal courts or state courts to adjudicate? And how might that go on election day?

And I'll let any of you weigh in on this because I get asked a lot about this potential. Two potential things to think about. The first is the Supreme Court's decision in Trump versus Illinois, I think really clamps down on the ability of the executive to sort of send troops into states unchecked, at least with respect to the National Guard. ICE might be different. We might think about other officials that look a little bit different. I think that's going to put a real damper on the ability to do so and swift reprisals from courts in the effort that there's an attempt to do so.

And so I think Trump versus Illinois is an important precedent, at least ahead of the election. The second is a practical question, which is, if there's an effort to send ICE to polling locations, and I think this gets back to the question about when elections are going to be close or where to send people, is there the potential risk of sending some law enforcement in places as a show of force? It's possible. But you have to realize there are tens of thousands of polling places distributed across the United States. If you're trying to influence the election, you probably don't know which of those places you're supposed to be going to, even if you're narrowing it down to those places where you think it's supposed to be close in terms of the control of Congress.

That's not to say that it's a good thing that if executive officials are going there or ICE officials are trying to intimidate polls. There are challenges on that front, too. But I think in terms of a voter suppression tactic, to me, I think it is deeply challenging to think about what that might look like as a practical matter. As a show of force, it's getting public relations, getting media up as a fear tactic.

There are those kinds of concerns as well. But I think there are real practical concerns about thinking about how that might play out, too.

Avoiding Fear-Based Voter Suppression

If I can just add, I feel like there's a real danger. I absolutely believe in being prepared and thinking through various scenarios and all of that. But I think there's a real danger to the hype in the sense that people will be scared to vote. And that can have a hugely suppressive impact in itself.

So I think there's something to be said for being careful in how you communicate about that concern. And some might say that's a feature, not a bug.

National Emergencies and Elections

So let me broaden this a little bit and bring Ned back in. There's been a lot of reporting of, I think, attempts to try to convince President Trump to declare some kind of national emergency which would give him some kind of authority over elections. I'm not sure what the mechanism would be, given how the Constitution is written. But Ned, is there a historical perspective? We had a civil war. Were we holding elections? What do we know about holding elections during emergencies?

NED FOLEY:

Yeah, that's exactly right. We did hold elections during the civil war, both the midterms in 1862 that I mentioned and presidential election of 1864. There is no national emergency exception to the Constitution. And there is no national emergency power to suspend elections. The Constitution mandates that the elections take place.

And as Derek said, the 20th Amendment gives these fixed dates to the congressional term. So you can't stay in office beyond the end of your term just because somebody's declared a national emergency. So the Congress will cease to exist and needs to be reconstituted based on the elections that have to be held. The civil war does show that it is challenging to hold elections in times of war, or even elections during the tail end of the Revolutionary War when states had declared independence.

There's some examples there of it being difficult, but elections were still held and victories declared and candidates seated. So I think we can be confident that the law requires that these midterms take place and that there's no power on the part of a president to suspend elections or to interfere with them. Again, Congress has two different roles.

You see a lot of media talk now about the states handle elections. That's true as a practical matter historically for the most part. Congress does have the power to write the rules for congressional elections. They've largely not used that power, but what the Constitution is telling us there is that if there was to be rules for suspending elections or dealing with national emergencies, those rules would have to come from Congress. And if they don't exist, they don't exist and the president can't make them up. And again, Congress under Article I, Section 5 gets to be the ultimate arbiter and nothing that the president can do or anybody else can do can interfere with that ultimate arbiter power. So I think history tells us that we should be confident that our democracy is robust, at least in this respect.

The Supreme Court's Bost Decision

For a final question, and maybe Derek is the first one to weigh in on this, this case the Supreme Court decided not too long ago called BOST that seemed to suggest a channeling of election, make it easier to sue early. I think there's some language in there that would make it harder to sue later. To what extent do you think something like the BOST case will help us to have election rules clarified before election day so we don't run into the kind of problems that Rebecca was describing as in the 2024 state Supreme Court in North Carolina after the election?

DEREK MULLER:

Yeah, I think it will channel election litigation earlier in the process. I mean, that was already happening with some of the parties. I think after 2020, Republicans realized they were suing way too late. Obviously after election day on some of these things, they were trying to bring some of the challenges earlier. BOST is an invitation to say candidates, if you're grieved by a rule that could affect tabulation of votes in your election, you have standing to challenge it before the election.

And if you bring those challenges too late after the election in particular, the doctrine of latches would essentially say you're barred because you waited too long. And now that there's this pretty robust standing doctrine in the federal courts to let you bring these challenges earlier, I think it's going to put a lot more pressure on the back end or relieve some of the pressure of courts to say, look, you have this ample opportunity to challenge it before the election, you failed to do so. It used to be that maybe you'd say, well, I didn't know if I would be affected by this rule, so it was a wait and see.

Now that excuse is gone from the Supreme Court's decision of BOST. So I do think it's going to channel more of that litigation up front. One of the points that Ned talked about with the bloody eighth is that at the time, there wasn't much of an opportunity for the kinds of election litigation that we see now, whether it's a post Bush v. Gore world or whatnot. There are many, many more opportunities now to challenge things. And it's a reason why we challenge them in advance.

The election is certified and Congress typically respects that judgment because we've had sort of an ample airing of the grievances well in advance of the election.

Why Election Litigation Can Be Beneficial

I'll just add, you know, I asked my students, is election litigation a good thing or a bad thing? And I think, you know, the class was kind of divided, but there are good reasons why election litigation is a good thing to the extent that it sets the rules in place before elections happen.

Closing Thoughts

Ned, I'll give you the last word. If there's something you'd like to add on this point.

NED FOLEY:

You know, I've been talking about scenarios that are very unlikely to happen.

One of the things we do is there. I do is in risk assessment is worry about, you know, the killer asteroid that causes the dinosaurs to go extinct. You know, the good news that only happens one after every 65 million years ago. So, you know, I mentioned these historical examples because we need to know about them. But the best assessment is the kind that Derek and Rebecca gave, which is that it's most likely that things are going to go fine in the sense that we're going to be able to trust the outcomes of the elections and feel confident that democracy worked.

Closing

Well, on that positive note, I think I better end the webinar because, you know, I think part of, as Rebecca suggested, part of what's going on is a lot of fear of the unknown and what might happen. And so thanks for bringing us back down to earth, the three of you, and for this very useful and, I would say, calming discussion.

The ELB Podcast is produced with the assistance of the UCLA School of Law, but I'm solely responsible for its content. The producer of the ELB Podcast is Melody Rowell. The theme music for the ELB Podcast is a composition jazz by the band Beat FN, used under Creative Commons license. I'm Rick Hasson. Please join us again next time.

Metadata

Title	Actions possible in 2026 election
Publisher	Election Law Blog
Author	Rick Hasen
PubDate	2026-04-09
RemoteLink	https://soundcloud.com/rick-hasen/elb75
Note	2026 Elections
Keywords	ElectionIntegrity, ElectionAudits