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Why There’s a Real Risk of a Replay of the 2020 Election Come Tuesday

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This is Executive Dysfunction, a newsletter that highlights one under-the-radar story about how Trump is changing the law—or how the law is pushing back—and keeps you posted on the latest from Slate’s Jurisprudence team. Click here to receive it in your inbox each week.

The midterm elections are now underway across the country and as voters decide who should hold the levers of power in Washington, all eyes are on President Donald Trump. He’s spent the last decade baselessly questioning the integrity of U.S. elections—despite plenty of evidence finding they are safe and secure—with things coming to a violent head on Jan. 6, 2021. This year, as more and more polling is suggesting Democrats will sweep Republicans, even in solidly red districts, it raises the question: Will the president accept the results of critical House and Senate races, or won’t he? “I will, if they’re honest elections,” Trump ominously responded when asked this very question on Tuesday.

Since Trump began his second term, he’s been laying the groundwork to try to nationalize U.S. elections and go after “voter fraud” through executive action and lawsuits against states, though most of these efforts have been struck down in court. Yet, the Justice Department has not given up. In fact, in recent weeks the agency filed at least two more dubious election lawsuits against California and Alaska, plus a series of cases against immigrants for alleged noncitizen voting. The legal challenges suggest the administration is planning ahead this time around, planting lawsuits that might create a foothold in the courts for the GOP to seize on if the midterms don’t end up going their way.

To Charles Stewart III, a political scientist and professor at MIT who has spent decades studying American congressional politics, elections, and political development, the current situation created by Trump is a test of America’s democracy. “Not primarily because of fundamental shortcomings in American election administration, but because political actors associated with the Administration will attempt to delegitimize or overturn its work,” he wrote in a newly published paper, “The Day After: Threats and Guardrails in the 2026 Election.”

Stewart believes that Trump’s efforts to thwart this year’s midterms should be viewed in three distinct phases: Before Election Day, during the vote counting and certification process, and when the new Congress convenes on Jan. 3, 2027. In practice, this looks like Trump beginning to seed baseless claims that losing Republicans can make after Election Day: mail ballots are suspect, voter rolls are contaminated with noncitizens, slow ballot counts are evidence of fraud, and any Democratic victories in close races shouldn’t be accepted. After Election Day, the lawsuits begin, harkening back to the days and weeks following Trump’s 2020 loss to Joe Biden, and finally things might culminate at the Capitol, where lawmakers could be pressured not to certify election winners.

I spoke with Stewart to understand how this framework can help us see important red flags in the hours immediately following Election Day, plus the chances that Trump incites yet another angry mob to take over the Capitol. And is there any silver lining to hold on to?

Here’s our conversation, lightly edited and condensed for clarity.

Shirin Ali: In your paper, you drill down on the president’s efforts to undermine the midterms into three flashpoints: Before Election Day, during the vote counting and certification process, and when the new Congress convenes. Can you explain what each of these are?

Charles Stewart III: The ideas behind those flashpoints come from what we’ve seen the Trump administration working on in the second term: two executive orders, activities at the Justice Department and Homeland Security, actions that are beginning to nibble around the edges of the election administration process. Particularly before Election Day, putting pressures on mail voting, highlighted by the executive order from this past March that basically directed the U.S. Postal Service to create a new series of procedures for handling mail voting, marrying that together with directives to DHS to create these lists of citizens.

The second flashpoint has to do with pressures on election administration, especially election administrators and the institutions themselves. There, I think the pressures go beyond even what the administration has been doing. Certainly, a lot of the activity of the administration has been focused on the possibility that if election officials don’t do what the administration wants, they will not only bring civil complaints against them, but they may very well bring criminal complaints against them. Then after Election Day, that’s where we’re thinking about getting the final count in. We shift into the formal process of canvassing the vote, certifying it, and making sure that we’ve named the winners. I’m thinking broadly about a potential........

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