By Neil H. Buchanan
On November 3, 2026, United States citizens are expected to go to the ballot and vote in the “midterms.” As the country faces an unprecedented authoritarian threat, this year’s elections might be the most consequential in its history. Yet even if the American people vote for democracy, their voices might remain ineffective. In the 21st century, elections and authoritarianism often work well together. In two op-eds, Neil H. Buchanan analyzes different reasons why the threat of the Republican Party undermining the people’s democratic choice should be taken seriously. While the first part considered strategies that might be employed to hinder citizens from voting, this second part focuses on how cast votes might be prevented from counting.
An attempt by Donald Trump’s Republican Party to stay in power against the will of the electorate might not stop at preventing people from going to the polls and casting ballots. Viktor Orbán’s recent loss in Hungary has shown that impressive voter mobilization is possible even under severely compromised conditions. Against this background, the Trump Administration might go to great lengths to prevent votes that have been cast from counting.
Stop Votes From Mattering
The Republicans under Trump have made a big push to increase “gerrymandering,” the practice by which district lines are drawn to make elections non-competitive. Once again, the Supreme Court’s conservative majority has played a decisive role. In a 2019 judgment, the court held that while partisan gerrymandering might be “incompatible with democratic principles,” it presents so-called political questions that are beyond the reach of federal courts, effectively giving malevolent political actors a free hand. Texas already “gerrymandered” for 2026, and smaller states are doing it as well. Florida’s governor even called a special session of the state legislature to intensify that state’s already extremely gerrymandered congressional map. While California’s Democratic-led legislature has responded in kind, the numbers do not favor the Democrats nationwide, because gerrymandered Republican state legislative majorities control too many states. Therefore, a much bigger swing of voters against the Republicans would be needed to retake the House.
When I wrote in part 1 that the Republicans are “radicalized,” I meant that in the very specific sense that they are actively undermining democracy. Notably, many states permit limited forms of direct democracy through “ballot initiatives” (also known as plebiscites). This allows the citizens of a state to undo the handiwork of their gerrymandered, unrepresentative legislatures. For example, in 2018, Floridians voted by nearly a two-to-one margin to reinstate voting rights for one million of their fellow citizens who had been stripped of the right to vote due to criminal convictions, even after those people had served their sentences. In response, the state’s hard-right Republican governor and legislature promptly passed a new law to keep those citizens off the voting rolls, nullifying the citizen-led ballot initiative. Given what we know about the disenfranchised citizens, Florida would still be a swing state today rather than firmly in Republican hands if they were allowed to vote.
More generally, as The New York Times reported recently:
“Voters frustrated by one-party control in Republican states over the last decade have increasingly turned to citizen-sponsored initiatives to enact policies that their legislatures won’t. They expanded Medicaid, adopted paid sick leave, raised the minimum wage and safeguarded access to abortion.
Now, the legislators are striking back (…)
The legislators argue that the nation’s founders never intended a pure democracy, and that in a representative democracy, elected legislators are entrusted to carry out their own judgments.”
This is all rather rich, because the whole point of these initiatives is to allow citizens to intervene on their own behalf precisely when they see that they no longer live in a representative democracy. The people in such states have very good reasons not to trust the judgments of legislators, because those legislators do not trust the voters enough to allow them to vote in fair elections.
With such an anti-voter track record, it should be no surprise that Republicans plan to challenge election outcomes this year. They hope to hinder votes from being accepted by sending party operatives to strategically selected polling places to challenge every potential procedural flaw they can make up. And even if that does not work, the challenges themselves will make voting more time-consuming. Stopping people from voting (see part 1) could thus occur up to the point where they are waiting in line and ready to cast their ballots.
Refuse to Accept Results
The last potential strategy is to refuse to accept the results. The familiar version of this tactic is to challenge every close election in court. This was Trump’s approach after losing to Joe Biden in 2020, when he claimed that massive voter fraud had cost him the election. The courts unanimously disagreed, but that is no longer guaranteed this time around.
The nightmare scenarios, however, go far beyond a blizzard of litigation. In a hint of what might come, Mike Johnson, the Republican Speaker of the House, refused for seven weeks to seat a Democrat who won a special election last year. As The New York Times explained in November:
“For weeks, Mr. Johnson had justified his refusal by saying he could not and would not seat Ms. Grijalva while the House was out of session. There is no such rule in the chamber that would block the swearing-in of a duly elected member of Congress. Though Mr. Johnson had so far kept the House out of session, the chamber can operate even in the event of a government shutdown, and he swore in two Florida Republicans who won special elections earlier this year while the House was in recess.”
This abuse of power was, moreover, “merely” intended to block the release of the Epstein files. The Republican Party sought to prevent information about the role Trump might have played in the commission of horrific crimes from becoming public, and it is still blocking the release of about half of the files today. If Johnson is willing to ignore the law to prevent one new member of the House from being seated, which did not even flip the Republicans’ majority in the House, what might he do after an election that could lead to him being voted out of the Speaker’s office? This question seems even more salient when considering that a new wave of Democrats in Congress would likely try to hold Trump and others accountable.
As bad as all of this is, a further nightmare scenario would have the Republicans allowing the Democrats to retake control of both houses of Congress but then simply ignoring anything that Congress does. Trump Administration officials are already failing to comply with court orders by the dozens – in immigration-related cases, by the hundreds – and they have been openly disdainful of any attempt to rein in their actions.
Thus far, Trump has not had to worry about Congress because his people control it. This made it relatively easy for him not to bother defying the nation’s legislative body. The obvious exception is the Epstein files, where the Administration has flouted a bipartisan law (which Trump even signed) and brazenly refused to answer questions during congressional hearings.
What is most ominous of all is that this has been happening in situations where Trump’s power was not in existential peril. When the stakes go up, will there be any limits to what he might do?
To be clear, all (or nearly all) of the things that I have described here are illegal, and they are unquestionably abnormal. That, however, is no longer the guarantee that we have always taken for granted.
None of this is to say that Trump is not politically toxic or that the polls do not strongly favor the Democrats. The problem is that such facts might no longer matter. Other than my confidence that the US will not officially cancel this year’s midterms, I have no way to assess what is yet to come. But what is obvious, at the very least, is that the party in power is trying on multiple fronts to ensure that it never loses it.
Neil H. Buchanan, Emeritus James J. Freeland Eminent Scholar Chair in Taxation and Emeritus Professor of Law at the University of Florida, is a Senior Research Fellow at the Institute for Austrian and International Tax Law, WU Vienna. Prof. Buchanan is an economist and legal scholar whose writing has increasingly focused on threats to the rule of law in the United States and around the world. He writes at Dorf on Law and Verdict.
This article is published under the sole responsibility of the author, with editorial oversight. The views expressed do not necessarily reflect those of the editorial team or the CEU Democracy Institute.
