Jon Wiener: From The Nation magazine, this is Start Making Sense.  I’m Jon Wiener.  Later in the hour: The Supreme Court last Friday issued an order allowing states to use Trump’s SAVE database to purge their voter rolls of people that Homeland Security considers ineligible – it’s too late for the midterms, but not for the 2028 presidential election. Rick Hassen will explain – he teaches law at UCLA and he’s Director of the Safeguarding Democracy Project. But first: the next No Kings – Leah Greenberg explains, in a minute.
[BREAK]
Jon Wiener: Now it’s time to talk about the next No Kings Day. For the last one in March, eight million people joined protests in 3,300 places. For the next one, we turn to Leah Greenberg. She’s co-executive director of the Indivisible Project and co-host of the podcast “What’s the Plan?” Leah, Welcome back.

Leah Greenberg: Great to be here.

JW: The next No Kings National Day of Action is October 17th. What’s the plan for October 17th?

LG: Well, let me start by saying we’ve been on this journey right through the No Kings movement. The core theory of the No Kings protests at the beginning was we need to have large scale mass shows of defiance that shake American society out of compliance, out of fear, that demonstrate that there is a massive constituency of people who are collectively opposed to Trump and also serve as a hub for the ongoing organizing of local communities everywhere that are taking action every day in between these mass protests. And so that was really the core theory of the first three notes. So, let’s get, you know, we want to get bigger. We want to get bolder. We want to push more people into local action. And this one, I think is a really exciting evolution for us, because it is the moment where we turn that protest power into voting power. It’s called No Kings: Vote Early. This is the first time we’ve had an ask as part of the title, and it’s part of an overall shift in which what we are asking people is to think first and foremost about how your No Kings action is going to drive voting early.
This is for a really specific strategic reason. We are in an unprecedented election cycle. We are facing a tax on every facet of the voting and elections process, from an administration that has very clearly decided that they are more focused on stopping people from voting than they are on actually making a persuasive pitch for their own governance. And one of the most important tools for defeating a sabotage attempt is actually getting folks out to vote early, to vote collectively, to do so with joyful, powerful defiance and to make voting a season rather than just a single day that is vulnerable to sabotage or interference attempts. And so, this is a moment in which we’re going to ask people to do things a little bit differently. This is not just about showing up. We are going to have – they’re going to be some very big rallies. There’s going to be lots of folks out there. And also, what we’re asking people to do first and foremost is say, how are we turning our community out to drive the largest early vote turnout in American history? That’s the metric of success for us this time.

JW: Trump is the most unpopular president in history, especially at this point just before the midterms. But you say the fight is not just against Trump, not just against autocratic consolidation. It’s also against doomerism and cynicism. Let’s talk about doomerism and cynicism.

LG: Absolutely. Well, you know, we often talk about this in terms of kind of the immediate crisis and the long crisis. Right. The immediate crisis is authoritarians attempting to consolidate power over the federal government and reinforce power at the state government in order to wreak their will on American society. That is an immediate, urgent crisis that requires mobilizing and pushing back. But the longer-term crisis is the fact that people have lost faith in democratic society to meaningfully represent their interests, such that an authoritarian like Donald Trump can rise in the first place. Right? And fundamentally, fixing these conditions is not about a single election. It’s not about any single candidate or elected official. It is about creating the conditions in which people feel that democracy is responsive and accountable to them.
A core first step of that for us is getting as many people involved locally as possible, because one of the most important ways for people to have and feel that agency is to be involved with some kind of community that keeps them engaged, and that helps them feel what it is like when their work turns into a result, right? That helps them feel that sense of agency. But in the longer term, we also have to orient in order to make the kinds of large scale, transformative reforms that actually make our government feel responsive to people, that make people invested in democracy because they experience government as being accountable to them.

JW: Let’s talk a little more about what’s going to happen on October 17th. One of the great things about No Kings is that it channels protests in different ways. It allows people on the fence to see people in the movement they identify with. What are some of the different ways we’re going to see activity on October 17th?

LG: Oh, we are seeing some incredibly creative stuff. We’re definitely seeing some of the big, large-scale protests and marches, but we’re also seeing folks who are thinking about concerts, voter mobilization hubs, festivals, activity, family-friendly activities that are really designed, first and foremost to entertain, to bring in parents with young children. I’ve seen multiple paws to the polls events literally like dog-themed events with like adoption mobiles and, bring your pets, have a pet contest. And also, it’s right near a local voting site, right? There’s all kinds of really creative stuff. Oh, car decorating parties is one. People are going to decorate their cars with clear “Vote Early” signs and then collectively caravan to the polls together. It’s really just like incredible to tap into the level of creativity that people have – a lot of Halloween themed things. There’s going to be just a very joyful and defiant vibe across the country. It’ll look different in different places, but I think it’s going to be an extraordinarily powerful demonstration of the fact that we are collectively defying attempts to attack the vote and showing up.

JW: Yeah. I want to talk about attempts to attack the vote. A poll came out this week Tuesday morning. By 30 points, voters oppose sending ICE agents to the polls. Pretty big majority. We’re not the only ones who care about this. What is the connection between the focus on early voting and the anxiety about ICE at the polls?

LG: Well, look, I think this ICE at the polls is one of a number of different ways that we are seeing this administration threaten the process of voting and the process of counting, right? And it’s not a new threat, right? Like this starts with the attempts to gerrymander states back in 2025. It starts with – it runs through the gutting of the Voting Rights Act, which is the Supreme Court’s decision. And it continues with these attacks that we have seen on mail-in voting and the threats to make voting in-person feel unsafe, either from the deployment of federal of ICE or the FBI or other federal agents, etc.
I think there’s a few things that we have to do here. The first is that we want to be real with people about the fact that this is an ongoing, genuine threat that the administration is making, right? Like we don’t want to in any way belie the existence of the threat. But we also really want to reinforce people in that they have a lot of power. Now, one of the things that there’s a lot of concern about within the pro-democracy world is not just about the deployment of ICE at the polls, but actually kind of heavy deployments of ICE in minority populations or districts designed not necessarily to directly enforce immigration status at the polls, but to create an overall atmosphere of racial profiling and threat that makes people not want to come out to vote overall.
And that is something that is both incredibly dangerous and also a thing that we actually have tools for, right? Like a lot of our focus over the last year and a half has been make sure that everybody in your network has taken a “Know Your Rights” training, make sure that you are plugged in with your local immigrant defense organization. Think in advance about what you need to do to be in community with the people who are under attack and do that in advance before ICE shows up. So, you know, in the most immediate sense here, my answer is do the preparation and the relationship building and the infrastructure development now so that if ICE is showing up in your communities, you are connected and flexible and nimble in order to have a community based response.

JW: Indivisible endorsed candidates in the Democratic primaries. But I understand from the last “What’s the Plan” podcast, you are not endorsing candidates in the general election. How come?

LG: Well, this is a little bit of a nomenclature thing, right? So, we have endorsements in the primary election and then we have target races in the general election. So, we’ve got races where we’re going hard to support folks in the general election there. It’s just a different program. So, it’s just categorized in a different way than the formal endorsements of the primary program in these. Like in an endorsement in a primary, we run an entire internal process, right? Because we’re not going to make an endorsement in a primary that’s not based in real deep support in that district. So, we work directly with the locals. We work directly with the state group. We send out a poll to make sure people are on board. We’re not really doing that in the general election, because our working assumption is that you guys are collectively going really hard here, right? And so, it’s a different dynamic where we really want to come in behind and support specific candidates. But it’s not so much about kind of the branding and the messaging and the framing of a primary program so much as it is literally what is helpful for folks on the ground.

JW: And related question, what’s the difference between No Kings and Indivisible?

LG: Well, Indivisible is a progressive nonprofit that supports a movement of local Indivisible groups around the country. We have an affirmative set of beliefs and strategies and programs that we do as Indivisible. No Kings is a coalition of hundreds of organizations with wide representation across the ideological ecosystem. I think it might be the first place where we’ve ever had a steering committee that includes both DSA and the League of Women Voters and a set of labor unions, right? Like this is – we try to bring together a really wide swath of folks. It is a nonpartisan coalition, right? It is not affiliated with a political party. It is designed to reach people who are not necessarily going to come along with everything that Indivisible says ideologically but is a big tent that extends to the left and to the right, and that welcomes people into a large-scale, anti-authoritarian popular front. It is affirmatively not an entity with like a policy platform, right? We’re not trying to say this is the No Kings set of ten policy demands. We are actually trying to say, everyone who can agree that fascism in this country is bad, and that we need to stand together and protect each other. Come on in.

JW: What’s the best way to convince people to vote, especially people who are undecided? I mean, it’s hard to believe there are any undecideds, but there are millions of people who tell pollsters they’re undecided. They’re tens of millions of people who are called “low propensity voters” who don’t vote in midterms, who just vote once every four years. What’s the best way to get them to vote in this election?

LG: Well, I think it’s a little hard to answer that in the aggregate. But what I would say overall is that we really encourage people to think about it in terms of both listening to the individual, understanding what moves them, what they care about, what their pain points are, what their values are, and talking to them in terms of those things like, there’s no one-size-fits-all for a low propensity voter or for a swing voter. And also, kind of like rejecting binaries, right? Like I think there tends to be a little bit of an ecosystem tendency to say, “oh, they’re the swing voters.” And “there’s the people who are reliable Democratic voters, but didn’t vote last time.” And for us, the decision of who to vote for and the decision about whether it’s worth your time to vote are actually more linked, I think, than it is helpful to differentiate, right? Because, fundamentally both, ‘do I vote for this candidate?’ is a combination of like, ‘do I share values and policies with this candidate?’ And ‘do I believe that this voting for this candidate is going to change anything about my future and my life?’ And you actually have to have both of those conversations at the same time, rather than suggesting that there’s one pool of people who only need to be activated on one axis and one pool of people who only need to activate another.

JW: On the one hand, we have people who don’t pay too much attention to politics. On the other hand, some of our friends say we need a lot more than voting. We need, like a society wide general strike to bring down authoritarianism. What does Indivisible think about that?

LG: Well, look, I think that we should absolutely be building towards the kind of collective power that is capable of large-scale mobilization and disruption. I think that is absolutely true. We’ve taken tests in that direction, for example, with the May Day, one day strike back earlier this year. Where I think I get off the bus a little bit is that I often see people frame it as, “we shouldn’t be doing any of this regular work. We shouldn’t be doing normal protests. We shouldn’t be working on voting. We shouldn’t be working on turnout. We shouldn’t be doing these community activations and local community support. What we need to do is go straight to the really impactful general strike.” And that, I think is a misreading of how power is built, because fundamentally, the actions that we take, they’re designed to ask, like they’re designed to build, local relationships. They’re designed to build local infrastructure. They’re designed to test new muscles and try new strategies, with the goal of ultimately building towards the collective infrastructure that’s capable of much bigger things. And also, it’s like training for a marathon, right? If you’re like, “I’m not going to, I’m not going to bother trying to run one mile or five miles or ten miles. I want to run a marathon.” Like you’re never going to successfully run a marathon, right? So, let’s try and get a really good 10-K before we talk about the marathon.

JW: So, all this has been focused on Election Day, November 3rd. This election may not end on November 3rd.

LG: Yes, absolutely. I mean, look, this is the third election cycle in which we have planned for both the possibility that the election is decisively over within the day or a couple of days as the votes come in. And also, the possibility that it extends in a long term way. Right? Because fundamentally, we’ve got every reason to believe that Donald Trump is not invested in a normal and functional transition of power. We have plenty of evidence of that from 2020. And so we’ve got to be prepared for all kinds of efforts on the back end to basically take advantage of the chaos and the confusion and the disinformation and the disruption they generate on the front end to generate legal challenges, to push back on certification to do all of the different kinds of shenanigans that the folks in Donald Trump’s inner circle have been thinking about and talking about for years. And so, we’re absolutely planning for what happens if there is a large scale effort to overturn or shift the results of the election. That will look like large scale mobilizations. We’re already talking to our folks across the host network about what we would need to do in that situation. We are dedicated to ensuring that the people who win this election take office, and we know that that might require mobilization on a scale that we have not yet done.

JW: So, we have the vote, but we also have the count. We have the certification, the official declaration of the winners. This election doesn’t really end until January 3rd, which is when the winning candidates are seated by Congress. What is the plan for day one after January 3rd? That is a real challenge too.

LG: Yeah, well, we think that the core of what Democrats need to do is really send the message that they are going to fight for us and do it across the things that people are really activating. We’ve done a bunch of polling this election cycle around, how do you tell a story that both really links people’s very real material needs? And what has the ravages that have been happening under the Trump administration? What we really think it comes down to is this linked story about cost of living and corruption, right? There has been enormous, staggering, shocking levels of corruption emanating out of Washington at the same time that it is not delivering on anything related to regular solutions for regular people. And we got to figure out a bunch of different ways in which we go hard on investigations, hard on legislation, hard on the things that reinforce for people that Democrats are the party that cares about your costs and cares about taking a fire breathing approach to corruption across the board.

JW: Trump says he will be a blocker if the Democrats win majorities in Congress. And he has the constitutional power to do that, to veto whatever Democrats propose.

LG: Yeah. Well, I think we should be real first off, that we’re not going to be able to pass transformative legislation during this window. This is a window where we can mitigate some harm by taking control of the House and potentially the Senate. This is a window where we can get the ball rolling on the investigations and the evidence gathering that can ultimately be used to hold these people accountable. And we can tee up what a vision looks like for transformative change. But we should be real that there will still be a veto in the presidency. And so I think that the way that we reconcile that is we’re focusing on what is the democratic proposition that feels genuinely meaningful to people, that convinces folks that Democrats do have real solutions that will actually make a difference in your life, and that they’re serious about taking on corruption in a way that puts them outside of the current discourse. Now, what we’ve seen in the past over and over again, is that part of the reason that the corruption arguments don’t hit is because people kind of think that everybody is doing it, and the Republicans are just better at it. And so you need to just take a really aggressive anti-corruption approach that is both about your own approach to money and about the massive, horrifying depredations that we have seen from the federal government over the last couple of years and drive that as a consistent theme throughout the next two years, in order to set up for the kind of transformative change that we hope to see in 2029.

JW: And the states, the states where Democrats win trifectas can set an example of what Democrats can do if they have power.

LG: 100%, 100%. And I think there’s a lot of reason to be optimistic – that in addition to candidates who are running really strong races for governorships, the attorneys general, the key state offices, there’s also a real set of opportunities to make inroads at the state legislative level. Right? We’re seeing forecasts of potentially flipping a large number of legislative chambers that would allow for Democratic trifectas in unexpected places and a real opportunity to deliver at the state level.

JW: One last thing. You open your podcast. “What’s the Plan?” By reminding us, “Be good to each other.” You don’t hear that a lot these days, but I think it’s really important. Please explain why that’s your own.

LG: Well, I mean, “What’s the Plan?” for folks who have not joined before is a live Zoom that has usually somewhere between 4 and 10,000 people on depending on the week. And a very, very active chat box. We are full of people who are figuring out what to do locally, who are trying to apply strategies, who are thinking about, what does this mean for my local Indivisible group and often who are very personally, dealing with the threats and the harms of the Trump administration, right? This is an extraordinarily personal fight for a lot of people, either because they’ve got family who are on the line, they themselves are on the line, their health care, their safety, their jobs, their – all their dignity. Like everybody has a huge personal stake in what’s happening. And that can lead us to lean into each other, or it can lead us to fight with each other. And so, what we really try to emphasize to folks is, we’re all here. We came to this work for a reason. It might not always even be the same reason, but we are collectively invested in holding each other up and fighting together and in building solidarity. And we’re going to try to model that in our relationship with each other, because we do not get to the kind of scale and power that we need in this country if we are busy ripping each other apart.

JW: So, October 17th, No Kings National Day of Action: Vote Early. If you’re not already part of a No Kings group, you can find an event near you at NoKings.org. Look at the map at NoKings.org – that map always makes me happy because it shows, once again, we are everywhere. And be sure to listen to the podcast “What’s the Plan?” It’s terrific. Leah Greenberg is co-executive director of The Indivisible Project. She’s one of my heroes. Leah, thanks for talking with us today.

LG: A pleasure, always.
[BREAK]

Jon Wiener: Last Friday, the Supreme Court said that states could use Trump’s SAVE system, temporarily, to purge their voter rolls of people the federal government considers non-citizens. For comment, we turn to Rick Hasen. He’s a distinguished professor of law at UCLA, and he’s director of the Safeguarding Democracy Project and editor of the Election Law Blog. And he’s an election law analyst at CNN. He’s the author of many award-winning books. His writing has appeared in The New York Times, The Wall Street Journal, and The Washington Post, and he’s a 2026 Guggenheim Fellow. Rick Hasen, welcome back.

Rick Hasan: Good to be back with you.

JW: Before we talk about the court’s order, we need to understand the SAVE system, which Trump wants to use to purge voters from state rolls. SAVE is a Homeland Security database that states have used since the 80s to check the immigration status of non-citizens living in the United States and applying for public benefits, but it was transformed last year when Homeland Security Secretary Kristi Noem and Elon Musk’s DOGE responded to an executive order of Trump by merging Social Security numbers with the database. Have I got all that right?

RH: That sounds right from what we know is actually happening. Although things may be happening that we don’t know about behind the scenes.

JW: So, tell us about Friday’s Supreme Court decision, what it does and what it doesn’t do.

RH: Just to put it in perspective, I would say on a 1 to 10 scale, my concern about that Supreme Court ruling is a 2, where my concern about the earlier ruling about the US Postal Service was a 9-plus. So, just not everything the court does, even if it’s bad, is consequential. And this seems a little bit less consequential. But I have to get into the weeds a little bit to explain why. You know, we have this decentralized system. States are the ones that keep their voting rolls. They have to clean those roles and provide voter registration opportunities under a federal law called the National Voter Registration Act, or NVRA, sometimes known as Motor Voter, that was passed in 1993 under Bill Clinton. Okay. And one of the provisions of the NVRA says that a state can’t engage in a systematic purge of voters, removal of voters ,from a database within the 90 days before the election. The purpose of this provision is to make sure that eligible voters are not inadvertently kicked off, which can happen when someone is inappropriately flagged as a non-citizen or dead or a felon or whatever. Okay. So, states use different databases and different sources of data to figure out whether people are citizens in this country. We don’t have a national identity card. There’s no single proof of citizenship. And non-citizens are not allowed to vote in federal elections and in state elections as well.
And so, states do different things to figure out if someone’s a non-citizen. One of the things that states want to do is to be able to send queries to this federal database, the same database in order to find potential non-citizens. The states were sued by voting rights groups saying this database flags as non-citizens, people who are actually citizens, most importantly, people who are recently naturalized citizens. And if you do this, you’re going to disenfranchise people. Okay. So, the Supreme Court in the ruling said that the lower court was wrong in blocking states from having access to this information. States can send what are called bulk queries. Like they could send a list of a whole bunch of people to this database and get back some answers. And they could potentially use that to remove non-citizens. But the court said this 90-day rule prevents systematic removal of voters. So, if a state has an individualized suspicion, it can query the database, and see, is this person listed as a citizen or not? But they can’t engage in wholesale purges of non-citizens because of that, that 90-day law and that 90-day law itself is subject to a different Supreme Court case being heard, not on an emergency basis in December called RNC v. Mi Familia Vota.

JW: You say at the election law blog that although states can still use the database for individualized determinations, you say a few bold states might try mass purges of purported non-citizens. Texas comes to mind as one possibility where the attorney general, Ken Paxton, is having a hard time running for Senate. What would happen then?

RH: Well, first of all, Texas has a lot of trouble, this particular election with their election administration. That was recently a report that Texas officials, because of a software glitch, mistakenly failed to transmit 200,000 voter registrations to counties to register voters. So, they’re already playing catch up. And it’s kind of egg on the face of Texas election administrators that they’ve got this problem with this backlog. It would surprise me under those circumstances if Texas, of all places, despite the lack of scruples of someone like Ken Paxton, is going to try a mass purge. But let’s say a state did. Well, then the argument would be, well, that’s illegal under the NVRA and a court would probably enjoin the state from doing that. And that could work its way to the Supreme Court. And then the Supreme Court would have to kind of give a sneak preview of the answer it’s going to give in that December Mi Familia Vota case as to how it’s likely to read the NVRA.

JW: When the appeals court ruled against states using the SAVE database there, they did this on the basis of a right to privacy. But I can imagine people arguing you can’t have a privacy right to conceal from your state’s registrar of voters the fact that you entered the country illegally. Or am I wrong about this?

RH: You’re wrong about this. It’s not a generalized privacy argument. Like there’s a right to privacy contained in the penumbras of the Constitution. You know, like we’ve heard this about sexual freedom and things like that. There’s a federal statute called the Privacy Act that makes it illegal to share certain information about individuals, including their Social Security numbers, unless you jump through a certain amount of hoops. So, the argument that is that this is technically not allowed. And in fact, similar arguments are appearing. As the Department of Justice has sued 30 states and Washington, D.C., to get their voting rolls, their unredacted voting rolls, which contain this information. One of the arguments against it is, “No, that would violate the federal laws protecting privacy.” So that’s the kind of issue that is appearing here. And I should say in those other cases, so far, the federal government has gone zero for 25, which in any normal administration would be a good clue to probably abandon the rest of this litigation. But so far, no, not this administration.

JW: I have to ask about the evidence that Trump is right here. His picture is these rapists and murderers and drug dealers are crossing the border and then voting Democratic. Is there actually any evidence for that?

RH: Well, first of all, let’s talk about them actually registering and voting. Department of Homeland Security issued a press release saying they had found 250,000. This was about a month ago, 250,000 noncitizen voters in four states. California was one of them. In Nevada, they said there were 16,000. And so, Nevada election officials came to DHS and said, well, give us the list, because they didn’t release the actual list. And so, the 16,000 got reduced to 185. And then when the 185 were investigated. It went down to zero.
So just so we know now to give a counterexample in New Jersey just like in California, when you go to the DMV, you register, you get your driver’s license. You also have to be offered registration opportunities, voter registration opportunities. That’s also in the NVRA. And that – it’s only offered to citizens. So, one of the questions, are you a citizen? If the answer no, you don’t get that registration opportunity. Well, New Jersey hired a private vendor to help them with their software at the DMV. That vendor made a mistake and caused the registration of 6,000 non-citizens, 400 of whom actually voted. Now, you might call that voter fraud. It’s probably not voter fraud because of the lack of intent.
If the government sends me a form, let’s say I’m a permanent resident alien. You know, you have a green card, not a citizen. Government sends me a voter registration form, and I say, “oh, I must be eligible to vote, otherwise, the government wouldn’t be sending this to me.” So, I don’t think we’re going to be able to prove criminal intent. But occasionally you do see non-citizens voting. In 2016, Donald Trump claimed that there were 3 million non-citizens who voted in the election. Not coincidentally, the margin by which Hillary Clinton beat him in the popular vote. So, there were investigations in 42 states, and they found at most 30 possible cases not 3 million. Right. 30 possible cases. So yeah, non-citizen voting occasionally happens.  If you’re a non-citizen and you knowingly vote, knowing that you’re not eligible, not only could you face felony charges, you could be deported. So that’s why non-citizens tend to not vote. And in the past, we’ve seen efforts to register non-citizens. Most recently was in the late 1990s in the Loretta Sanchez, Bob Dornan race down there in Orange County, California. But it’s extremely rare these days.

JW: All of this followed because Trump issued an executive order at the end of March calling for the creation of a national citizenship list, listing the eligible voters in every state. Now, the idea of a national list of citizens qualified to vote. That’s not a crazy idea. That’s not a Trump idea. In fact, you argued for something like that a while ago, a federally run national voter registration system. You even wrote a book about it. What’s the difference between the system you proposed and what Trump is trying to do?

RH: Well, mine doesn’t suck. So, if you’re going to do it, you have to do it right. Which means that the government would be systematic about it. They would pay all the costs of verifying citizenship. Now, think about it. Now, if you’re in Arizona and you want to vote in state elections in Arizona, you cannot do so unless you can produce a birth certificate or a naturalization certificate, passport. There are very few documents in the United States that can show you’re a citizen. Unlike in most other advanced democracies, when you’re born, you’re assigned a number and you’re a citizen. As long as you remain a citizen of that country, you have that number for life, and you can use it. A national identity card that documents who you are to do all kinds of things. If we had a system like that, it would be no problem to require people to prove citizenship because we’d have a reliable database. The devil’s always in the details in these things. I also don’t think voter ID is a problem in theory, but if you say, as in Texas, student IDs are not good, but concealed weapons permits are good. You know, then you’re choosing the rules in order to try to shape the electorate. And that’s where the problem is. If we wanted to kind of rationally address the question of establishing voter eligibility through some kind of federal database that would be accurate and could be used by the states in a fair way with room for people to be able to object. If they’re kicked off the voting rolls, then I don’t think there’s anything wrong with it.

JW: This ruling last Friday was an interim emergency order, not a fully briefed Supreme Court ruling on the merits, although it does not apply to the 2026 election. It could apply to the 2028 presidential election. So, first of all, we need to know, will we get a ruling on the merits soon? And in that case, wouldn’t it apply to 2028?

RH: Yeah. So, this was one of those cases that came up on the so-called shadow docket on an emergency basis of the Supreme Court. There are still proceedings in the lower court. They’re going to eventually issue a ruling on the merits, and that could eventually make it back up to the Supreme Court. I should say I’m much more concerned, again, to come back to where I started – the USPS rule that was put on hold for mail ballots. That too, is going to be subject to further litigation. That too could be put into effect for 2028 and the stay order that the government requested and didn’t get was of a preliminary injunction against the use of the federal mail ballot rules only for the 2026 elections. So, there’s a lot more that’s yet to be done. But in comparing these two cases in the SAVE database case, the Supreme Court suggested that the states are likely to win, that they should have access to this database. Whether they use the database for bad purposes is kind of a separate question. But in the mail ballot case, the Supreme Court, ever so obliquely in a single sentence, said, yeah, “the government’s likely to lose on the merits.” So that’s a big signal from, we think, six justices on the Supreme Court that on the merits, that USPS rule is probably going to go down. But yeah, it’s still going to go. I should tell you my hope and dream for post January 2027 is that Donald Trump loses interest in elections. Because he’s not really going to have a personal stake in them anymore. He has a personal stake now in terms of what his last two years are going to be like, but he may not have anything to care about. And so maybe some of these things get abandoned or just never get pursued. We’ve seen the Trump administration abandon – think of DOGE. They start something and then they stop it. So, we’ll see.

JW: So, mass purges of state voter rolls are unlikely to take place in the weeks before the midterms in November. What do you consider the most significant threats to free and fair elections this year? Of course, we have to think not only about voting, but about counting, about the certification of the official winners and then about the seating of the winners in Congress on January 3rd.

RH: My biggest concern is only likely if we have a very close race for control of either the House or the Senate, so control of the House could come down to some late called California races, because California takes a while to process all those ballots and figure out who’s won, or if it’s the Senate, it could come down to Alaska. It’s really close. And they use ranked choice voting there. And they are also very slow because they’ve got a very far-flung electorate in Alaska. I’m worried about the period after voters have finished voting, but before we have official results, that there could be attempts to try to interfere by the federal government in the tabulation or certification process. One of my biggest fears there is that DOJ could try to get search warrants to seize ballots or to seize voting machines. We have seen a seizure of voting machines in Puerto Rico over the summer, by Tulsi Gabbard. We saw the seizure of Fulton County ballots from the 2020 election by the Department of Justice. These were not in-doubt elections. The elections were over. There was no more litigation over them. There was no question about what the results were.
In a live election, in modern times, we don’t have a seizure like that. So that would be really worrisome. And so worrisome, in fact, that here at the Safeguarding Democracy Project at UCLA, we issued a white paper for judges, emailed it to 3,000 judges, and sent it to 26 judicial organizations, saying, “here’s what you should do if you face one of these, because you could do irreparable harm to the integrity of the election if you allow ballots to be taken out of the custody of election officials before an election is fully called and completed.”

JW: Rick, your final thoughts on the upcoming midterms?

RH: Well, you know, the election administrators’ prayer is, “Lord, let this election not be close.”

JW: Rick Hasen – he’s director of UCLA’s Safeguarding Democracy Project. You can read him at the Election Law blog. Rick, thanks for all your work, and thanks for talking with us today.

RH: Thank you. Let’s hope for a very quiet November.