Voting goes to court

As political candidates prepare to face off in the November midterms, lawyers around the country have been fighting on another important front — the election’s administration.

This month, a federal judge dismissed the Justice Department’s demand that Massachusetts turn over its voter lists, one of 30 such cases nationwide involving sensitive state voter data. Other election conflicts involve mail-in ballots and voter identification rules.

While these disputes are unlikely to radically change the midterms, they come at time when trust in U.S. elections is already weak across party lines, notes Bob Bauer ’73, an expert on presidential power and election law.

Legal adviser to Presidents Joe Biden, Barack Obama, and Bill Clinton, Bauer, who visited campus April 10 to meet with students at the Kennedy School’s Institute of Politics, now co-leads the Bipartisan American Election Project, which advocates for the nonpartisan administration of elections. He is also a professor of practice and distinguished scholar in residence at NYU Law.

In this edited conversation, Bauer discusses the legal landscape around voting rules.

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Where do things stand on this front?

Over recent years, there has been an extraordinary increase in lawsuits. What is distinctive now is this confrontation over assertions of executive authority to set the rules in federal elections and otherwise have an impact on the way elections are administered.

Under the Constitution, administrative responsibility for the elections is vested in the states unless Congress chooses to step in and specify rules for federal elections, in particular. Nowhere in the constitutional scheme is the president mentioned. President Trump is actively testing that, and that has produced a significant amount of litigation, particularly in relation to the Executive Orders he issued in March of 2025 and also in March of 2026.

There is a separate piece of litigation, initiated by the Republican National Committee, that is before the Supreme Court. That has to do with the so-called postmark voting rule. The court has to decide: May states provide that ballots have been lawfully received if postmarked by Election Day, even if the state provides a grace period for counting them for a certain number of days after Election Day? That case is distinctive because it’s about to be decided.

Which type of challenge could have the greatest effect on voting in the fall?

The voter roll cases. While the administration has met with no success in the courts up to now, that’s a very significant case. It represents an extraordinary and, I think, unconstitutional assertion of authority that somehow the federal government is going to create a national voter list and compel the states to use that particular list.

Congress has not passed the SAVE Act, a top legislative priority of the president that would require voters nationwide to produce not merely identification, but proof of citizenship. Could it still potentially factor into the midterms?

There is no indication that the Republican leadership in the Senate is going to do what Trump has urged them to do and cast the filibuster rules aside and permit the bill to be jammed through on a majority vote. So far, there’s no indication that that is going to happen. It will fail in the Senate.

What tools do states have to prevent or limit the federal government’s hand in their elections? 

They have the ability to bring their defense against these claims before the judiciary and they’ve done so. And then, throughout the electoral process, the state courts sit in judgment over disputes over election rules and the application of those election rules. Periodically, the federal courts will intervene. They’ll step in if there’s a federal constitutional claim. But for the most part, you have states setting up the rules under their codes and adjudication under state law. That applies throughout the entire process, from the registration period all the way to the post-election recount challenge period. So, there are multiple ways that the legal processes in these states can be invoked to defend against illegal claims or attempts in the aggregate to subvert the outcome of the election.

Is the Supreme Court likely to weigh in on more of these cases before the election?

No question, there have been attempts by the administration to use the emergency docket to try to get quick relief before the case can be heard in full. Now, sometimes that doesn’t work; witness the tariff cases. Ultimately, the court heard the entire case and disallowed the president’s exercise of tariff authority under the emergency statute that he was using.

I do think there are people who conflate the majority of the court’s conservatism as some desire to protect and help Trump. It’s a conservative court; there’s no question about that. But I also think that on some of the issues we’re talking about, he pushes so hard in a direction that the conservatives themselves cannot support, directions that I wouldn’t even consider classically conservative.

Many observers are worried about the confusion and distrust these challenges may create for voters. Is there some way to mitigate those effects?

Yes. The professionalization of election administration since 2000, in particular, has been extraordinary. There are a corps of administrators around the country, Democrats and Republicans, who know how to run elections, who are continually perfecting the way they run elections. Elections will never be perfect; mistakes will always be made. Then the question is, how do you learn from the mistakes and how do you correct them when they happen?

Yes, there is still a lot of suspicion. There’s much higher doubt about the integrity of the process than there was before Trump. But all that being said, civil society, the private sector, in many ways stands up and defends these officials when they’re under attack because the work that they do is really very good.

One other point: It is very difficult to reverse the outcome of an election that is not close. That’s true in an individual case, and that’s true in the aggregate. So, if the Democrats win by a significant number of seats, there’s no practical, legal, conceivable way that Trump, if he were so disposed, can reverse the outcome.