I’ve spent decades fighting for fair elections. Trump is setting the stage for a grim November | David Walbert

The first case I argued in the supreme court was in 1982. I represented African American voters from Burke county, Georgia, where no Black person had ever been elected to office even though 40% of the voters were Black. The reason was simple. All candidates were elected at large by the voters of the entire county, and the white majority could outvote Black voters every time.

Federal law banned many older methods of southern discrimination–the bogus literacy tests, “understanding” tests, and poll taxes, for example – but structural barriers like the one in Burke county were pervasive, and they suppressed Black politics across the south. In Georgia, fewer than one percent of the elected officials in the state were African Americans while more than a quarter of the state’s registered voters were Black.

I won the Burke county case in the trial court and court of appeals, but it was a different matter in the supreme court because it had just announced a new rule – contrary to two centuries of precedents – that election discrimination was legal unless the plaintiffs proved that the very purpose of the law was to discriminate.

While my case was pending in the supreme court, I was part of an effort to amend the Voting Rights Act to supersede the supreme court’s intentional discrimination ruling since that decision, left standing, would in effect end minority political progress in the south. I testified before both the House and Senate committees in support of legislation to prohibit election practices that “resulted in” discrimination regardless of their purpose.

One of the most rabid opponents of amending the Voting Rights Act was a young lawyer in the Reagan justice department, John Roberts. He lobbied members of Congress, wrote position papers, and drafted testimony deriding the amendment. He failed in that effort, and the legislation ultimately passed. I also squeezed just enough evidence of intentional discrimination out of the record to convince a majority of the justices to rule for my clients.

That same John Roberts is now chief justice of the supreme court, and he has led the court in erasing voting protections that Congress enacted over the past 60 years. As those protections disappeared, southern legislatures passed one new law after another to make voting more difficult, always justified under the guise of stopping “election fraud” though no supporting evidence of fraud ever surfaced. The real reason for these new laws was to reduce voting by people, mostly minorities, who vote Democratic. New voter restrictions were enacted, voting hours were shortened, early voting was curtailed, limitations were placed on how ballots could be delivered to election officials, mass purges were allowed that swept up legal voters, voting precincts were closed, and on and on.

Northern states controlled by Republicans followed the same recipe, and the effect was exactly what was intended: the rate of minority voting dropped compared to that for whites in both north and south.

As the 2026 midterms approach, the fervor to reduce Democratic votes makes those past efforts look temperate. Trump’s campaign to force already-gerrymandered Republican states to adopt even more extreme maps, in total disregard of who voters would elect under a fair plan, is an embarrassing chapter in the country’s political history.

Federal agencies controlled by Trump are doing everything possible to rig the midterms for Republicans. Trump wants to require voters to show documentary proof of citizenship even though dozens of studies show that non-citizen voting is a phantom issue that doesn’t occur in “detectable numbers”. The real reason for the requirement, of course, is that people who lack documentary proof of their citizenship are more likely to be Democrats; the loss of some Republican votes in the process is accepted as “collateral damage”.

While Trump himself votes by mail, he is trying to limit mail-in voting because more Democrats vote mail-in ballots. (The conservatives on the Supreme Court are likely to rule soon that a mail-in ballot that is delivered by election day to the post office, a federal agency, cannot be counted unless the post office delivers it to the election board by election day.) The justice department is also advocating voter purges that would remove a disproportionate number of qualified minority voters.

In actions reminiscent of southern states during the Civil Rights Movement, the FBI and Department of Homeland Security have issued search warrants to voting activists and to election officials in counties that vote Democratic. Just last Thursday, an astonishing 100 agents appeared without warning to serve search warrants and interrogate people associated with an Ohio voter registration organization. Ex-US senator Sherrod Brown of Ohio accurately characterized the raid as an effort “to intimidate eligible voters”. The Texas attorney general, Ken Paxton, has tried to intimidate Democratic-leaning Latino organizations and officials by bringing lawsuits and indictments under draconian state laws that criminalize innocuous political acts such as paying workers for their gas. Whether Paxton wins those cases is secondary; just bringing them frightens Democratic voters and organizers and reduces Democratic votes.

These perverse efforts to bolster Republican chances in the midterms are disgraceful, but something far more insidious is looming. Trump and other Republicans have used claims of fraud before to say that elections they lost were stolen. In the 2020 election, Trump tried to create a cloud of uncertainty over the results in a half-dozen states he lost in an attempt to fabricate a “reason” for those states to submit “alternate electors” and give Republicans in Congress a sham basis for disregarding the true electoral vote counts.

Applying Trump’s playbook from 2020 leads to a grim path in November. If an election for a House or Senate seat is in dispute and challenged, the constitution makes the House and Senate the ultimate judges of the election. Today’s false cries of fraud from Trump and his confederates – in California, for instance – are setting the stage for a repeat of the 2020 scenario. The next step would be to create some real uncertainty in close House or Senate elections. It is not far-fetched to imagine federal agencies interfering with elections in selected counties or precincts to that end. In 2020, Trump tried to get the Department of Justice to file lawsuits and seize election machinery to create confusion. That didn’t happen because the officials in charge refused, there being no legal basis for doing so.

The people who refused Trump’s requests then are gone now. The people in charge today are loyal to Trump, not the law. The FBI recently seized 2020 election records from Fulton county, Georgia, based on conspiracy theories that have been repeatedly debunked. Regardless, Kash Patel’s FBI might falsely say that their “review” of those 2020 records has “revealed” some “pattern of fraud” that is being repeated in 2026 as a justification for seizing ballots in Fulton county in November.

In a close election anywhere, not just in Fulton county, seizing ballots or election equipment from a few heavily Democratic precincts would prevent state election officials from declaring a winner. The House and Senate would then be the “judge of the election” of their respective members, and given the current membership of those bodies, the outcome is all too predictable.

This worst-case scenario would have been a dystopian fantasy just a few years ago, but with all that occurred in 2020 and since, it is no longer inconceivable.

• David F Walbert has litigated dozens of election cases, including landmark cases before the supreme court, taught constitutional law, testified before Congress on voting legislation, and most recently authored Stealing Elections, American Style, published by Bloomsbury on 3 September