As President Trump attempts to wield greater power over election administration ahead of the midterms, dozens of legal battles are currently underway across the country. Their outcomes could shape how elections are run this fall. Liz Landers discussed more with Ben Ginsberg. He has spent decades working as a Republican election lawyer, including on the landmark 2000 Bush v. Gore dispute.
Geoff Bennett:
As President Trump pushes for a greater federal role in election administration ahead of the midterms, dozens of legal challenges are moving through the courts. And their outcome could shape this fall’s elections.
Our Liz Landers has more on the constitutional questions now before judges.
Liz Landers:
In the last few days, there have been a number of judicial rulings related to election cases across the country. On Wednesday, a judge in Washington blocked the U.S. Postal Service from changing its delivery of mail ballots. This came after the president signed an executive order requiring states to provide lists of eligible voters that intend to vote by mail.
The judge this week said that order was not legal based on a 2021 agreement the agency struck with the NAACP.
I’m joined now by Ben Ginsberg. He spent decades working as a Republican election lawyer, including on the landmark Bush v. Gore dispute after the 2000 election.
Ben, thank you for joining “News Hour.”
Ben Ginsberg, Republican Election Attorney:
Thank you, Liz. Nice to be here.
Liz Landers:
Let’s start with that mail vote ruling yesterday about the president’s executive order that he signed in March, which that judge determined is not legal. The White House and the president keep losing when these election executive orders are challenged.
How much authority does the president and executive branch have over election administration?
Ben Ginsberg:
Well, according to the courts, not as much as they think they have.
The Constitution of the United States is very clear that the time, place, and manner, in other words, how to conduct an election, is up to the states. And there’s a provision in the Constitution that gives Congress the ability to do nationwide rules in some cases and rules for their own federal elections in others.
Nowhere in the Constitution is there any mention of executive authority, the president’s authority. And that’s why he’s losing so many of these cases in so many areas.
Liz Landers:
It seems possible that the Postal Service could try to skirt this in some way, based on statements that the postmaster general has made in recent weeks. What’s your advice to voters who prefer to cast their ballot by mail?
Ben Ginsberg:
I think that voters can rest assured that Postal Service overreach is not going to be tolerated by the courts.
The Postal Service is currently engaged in a rulemaking process, which they think will give them the authority to go ahead with what the president wants on mail-in ballots. However, that’s been enjoyed by a court. The rulemaking itself is, I think, on really weak grounds. And once the rulemaking is finalized, it will be taken to court.
So I don’t think there’s much of a chance of this being able to be done. Having said that, I think there will be an increased responsibility on voters who want to vote by mail to get their ballots in the mail early.
Liz Landers:
Turning to the Supreme Court, a majority of justices ruled this week that states must be allowed to receive and count ballots in an election up to five days after the actual Election Day. Does this ruling settle the mail ballot deadline question for 2026?
Ben Ginsberg:
Yes, I think that it does. I think that there is little room for any sort of challenge against that as a legal matter in court.
The decision you’re referring to, the Watson decision, also contains some interesting language about who has authority over elections. And like a lot of other lower courts have been saying regarding the cases brought by the administration, the president does not have authority over elections.
So the Supreme Court went and described that states do and Congress can, but it was silent about any authority for the president to determine policy on elections.
Liz Landers:
For months now, the attorney general has been asking individual states to turn over their voter rolls. Many have refused and have challenged this in court.
On Monday, the Department of Justice lost their 11th such case when a judge in New Hampshire struck this down, saying that the Justice Department did not prove why it needed that voter information. As a Republican election lawyer yourself, what do you think that the Department of Justice is getting wrong here legally?
Ben Ginsberg:
I think the Department of Justice is losing all those cases because their client, the president of the United States, is insisting on the Justice Department bringing those cases.
But the authorities we have been talking about before simply don’t extend to this sort of attempt to get massive voter lists. Not only is there a question about the authority of the president to ask for this information, in fact, these voter rolls include very sensitive private information about people, your most sensitive information, like Social Security numbers and date of birth.
And in this era of identity fraud and theft, states are particularly cognizant of needing to enforce the privacy rights of their citizens, so are opposing these attempts.
Liz Landers:
And what kinds of post-election lawsuits are you anticipating from both the Republicans and Trump world and also Democrats here now that we’re seeing a lot of this litigation and the groundwork for this being laid right now?
Ben Ginsberg:
I think that, if the elections are close, you will see a lot of attempts to challenge elections. Remember that, in 2020, supporters of President Trump brought some 64 cases, alleging all manner of fraud and irregularities.
And, as a factual matter, they were unsuccessful in 63 of those 64 cases, and the 64th was a fairly minor matter. So I think you can anticipate lots of suits if one side or another doesn’t like the outcome. But those suits are rarely successful, unless they can produce hard evidence of some sort of irregularity or fraud.
Liz Landers:
Ben Ginsberg, thank you for your expertise.
Ben Ginsberg:
Thank you, Liz.
