Top election lawyer says Trump has already rigged the 2026 midterms

U.S. President Donald Trump attends an event to honor Angel Families at the White House in Washington, D.C., U.S., February 23, 2026. REUTERS

President Donald Trump has repeatedly said that he will do everything in his power to prevent Democrats from reclaiming either chamber of Congress in the upcoming midterm elections. Now Marc Elias, an election attorney who founded the voting rights organization Democracy Docket, is warning that Trump has already guaranteed the 2026 election will be historically unfair — even if Democrats do ultimately prevail.

"It is easy to look at the individual pieces," Elias told MS NOW host Nicolle Wallace on Tuesday. "We have a big victory, as you mentioned, in the Supreme Court, preventing an illegal gerrymander from going into effect in Missouri. There was a setback involving the ability of the SAVE database to be rolled out, halted in the Supreme Court. There was a victory you mentioned in the trial court. There have been other cases that have been filed, right? There's just a lot going on, but what it's doing is building and building and building toward Election Day. And there is no sign that Donald Trump is de-escalating. All the signs are that his administration is escalating and that his allies are escalating."

He added, "And I expect that that, Nicolle, is just what we are facing over the course of the next five weeks, and then, frankly, in the two or three weeks afterwards."

Wallace replied to Elias by asking, "What is the best-case scenario, then? Is the best-case scenario that the courts can handle the volume of frenetic garbage he throws at them, or what? You tell me. What's the best-case scenario?"

Elias replied, "The best-case scenario is that we are able to keep up with the vote suppressors and election deniers. We're able to bring litigation fast enough. We're able to get favorable results from the courts in enough cases that we have free and fair enough elections. There's no on/off switch there. It's a continuum."

He continued, "And I've said this before: I think the 2026 elections are going to be less free and fair, by relative standards, than the 2024 and 2022 elections. But we win enough of these cases that we are able to protect democracy, and then, frankly, Democrats sweep the House and the Senate in such convincing fashion that it demoralizes the post-election subversion efforts. It's one thing to try to steal a seat or five seats. It's another thing if they've lost five or six Senate seats and a couple dozen House seats. At that point, one hopes that it just becomes a big demoralizing factor, and that we're able to move forward."

Speaking to AlterNet earlier in September, constitutional law professor at Loyola Law School constitutional law professor and former deputy assistant attorney general Justin Levitt countered the view among critics like Elias that Trump can rig the 2026 midterms.

"He is trying to project power that he does not have," Levitt told AlterNet about Trump. "He would love the American public to believe that he actually has operational control of forces able to execute on any of those five things or others, but he doesn't. He's not in charge of the systems that govern the election process. As much as he thinks he is, he's not."

He added, "And so I have firmly believed for a while that the single biggest risk to the '26 elections is that the American public falls for the marketing stunt and bestows magical wizard powers on a tired old man. That we do it to ourselves. That we get so spun up and freaked out thinking that he's got a magic ring that lets him do whatever he wishes that we decide to stay home, or we decide to trim our own sails, because we imbue him with an aura of invincibility that he has not earned and does not have."

Levitt concluded, "So I'm convinced the biggest risk — and I don't think it's actually going to happen; I think we're smarter than this — but I think the biggest risk is that we do it to ourselves, pretending he's got power he doesn't have because he desperately wants to convince us that he's got this power."

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