February 6, 2026

When I was in law school, conservatives were obsessed with expanding the concept of federalism — in particular the power of states’ rights. They would talk excitedly about an earlier case that denied Fair Labor Standards Act protections to workers in state and local government. And, of course, they wanted Roe v. Wade overturned so that abortion rights would be left to the states.

Long before it became fashionable for Republican pseudo-intellectuals to smugly insist that the United States is a republic, not a democracy, they would slyly correct anyone who referred to “federal elections.” 

“We don’t have federal elections,” they would confidently insist. “We have state elections for federal office.”

Their point was a simple one dressed up as clever jurisprudence — the Constitution gives states the power to set “Times, Places and Manner of holding Elections for Senators and Representatives.” While Congress can overrule these state decisions, it may only do so through legislation.

Notably absent from the power to set rules for elections is the president. As a federal judge recently wrote in an opinion striking down Donald Trump’s executive order setting election rules, the Constitution gives “no role at all to the President.”

Unsurprisingly, this is not how Trump sees it.

Earlier this week, he told the media from the Oval Office,“The state is an agent for the federal government in elections.” 

Standing behind him as he misstated the law was a group of high-ranking elected officials, including so-called moderate Susan Collins, who was clutching a red MAGA hat for dear life. 

Also, there was Speaker Mike Johnson, who claims to be a constitutional law expert. No one corrected him. 

Trump’s declaration was not a slip of the tongue. Last August, he wrote the same thing on social media: “The States, are merely an ‘agent’ for the Federal Government in counting and tabulating the votes. They must do what the Federal Government, as represented by the President of the United States, tells them … to do.”

Trump is spreading this constitutional lie at the same time that he is saying that Republicans need to take over the voting and nationalize control over the elections. His plan is clear, and his motivation is simple.

His effort to rig the election through gerrymandering is failing. The Department of Justice is 0-3 in court cases to obtain state voter files. We recently defeated his anti-voting executive order in court. But Trump doesn’t give up that easily. 

In 2020, we witnessed Trump’s willingness to escalate his attacks on free and fair elections without regard for the rule of law or Constitution. He is repeating the same pattern now.

And, sadly, the same skeptics who urged caution and calm are again warning that people like me are exaggerating the risk. The legacy media has proven itself captive to both-sides’ coverage. The professional pundit class benefits from ongoing arguments rather than conclusive resolution.

As a lawyer, my job is to win – not perpetuate disputes or sugarcoat threats. 

Trump is not just laying out his strategy for the midterms: He is actively executing it. He has granted a MAGA prosecutor in Missouri nationwide jurisdiction to criminally investigate election-related activity. That prosecutor has already seized ballots in Fulton County, Georgia.

A separate prosecutor in Florida is reportedly conducting a wide-scale investigation of the 2016 election — yes, the election held 10 years ago.

Vice President JD Vance recently announced that a new senior prosecutor will work out of the White House and will report directly to Trump and him. His mandate is “fraud” – again on a nationwide basis.

Meanwhile, Steve Bannon, the intellectual leader of MAGA, said earlier this week that “we’re going to have ICE surround the polls come November.” In Minnesota, ICE is targeting U.S. citizens exercising their constitutional right to free speech. There is little stopping them from doing the same this fall when it comes to the right to vote.

In the effort to hand Trump the midterm elections, conservatives are willing to throw out the rule of law, along with an entire belief system. Their view of the government does not matter if it interferes with Trump’s electoral ambitions. The Constitution simply doesn’t apply if it stands in the way of a Republican majority. 

I’m sure some of the conservatives I attended law school with stepped away from the Republican Party as it descended into MAGA-ism. But I’m just as sure that many of them did not. I would love to hear about their thoughts on federal elections now — they would likely have very different answers.