David Walbert, who argued his first Supreme Court case in 1982 representing Black voters in Burke County, Georgia, detailed in a Guardian opinion piece published Wednesday how he believes the Trump administration is preparing to contest 2026 midterm results. In that early case, Walbert said, no Black person had ever been elected to office in Burke County despite Black voters making up 40% of the electorate, because all candidates were elected at large and white voters could consistently outvote Black voters.
Walbert noted that John Roberts, then a young lawyer in the Reagan Justice Department, was “one of the most rabid opponents of amending the Voting Rights Act” when Congress sought to supersede a 1982 Supreme Court ruling that required plaintiffs to prove intentional discrimination. Roberts is now chief justice, and Walbert wrote that he “has led the court in erasing voting protections that Congress enacted over the past 60 years.”
As those protections disappeared, Walbert wrote, Southern legislatures passed new voting restrictions “always justified under the guise of stopping ‘election fraud’ though no supporting evidence of fraud ever surfaced.” He said the real purpose was to reduce voting by people who vote Democratic, especially minorities. He cited shortened voting hours, curtailed early voting, mass voter purges, and precinct closures, adding that Northern Republican-controlled states “followed the same recipe” and that “the rate of minority voting dropped compared to that for whites in both north and south.”
Turning to the current election cycle, Walbert wrote that federal agencies “controlled by Trump are doing everything possible to rig the midterms for Republicans.” He said Trump wants to require documentary proof of citizenship, despite studies showing non-citizen voting is a “phantom issue,” because people who lack such documentation “are more likely to be Democrats.” Walbert noted that Trump himself votes by mail while trying to limit mail-in voting, and that the Supreme Court’s conservative majority may soon rule that mail-in ballots delivered to the post office by Election Day cannot be counted unless the postal service delivers them to election boards by the same day.
Walbert highlighted what he described as aggressive law-enforcement actions. Last Thursday, he wrote, “an astonishing 100 agents appeared without warning to serve search warrants and interrogate people associated with an Ohio voter registration organization.” Former U.S. Sen. Sherrod Brown, D-Ohio, characterized the raid as an effort “to intimidate eligible voters,” according to Walbert. Walbert also cited Texas Attorney General Ken Paxton’s lawsuits and indictments against Democratic-leaning Latino organizations under state laws that Walbert said “criminalize innocuous political acts such as paying workers for their gas.”
The FBI’s seizure of 2020 election records from Fulton County, Georgia, Walbert wrote, was “based on conspiracy theories that have been repeatedly debunked.” He expressed concern that FBI Director Kash Patel’s bureau “might falsely say that their ‘review’ of those 2020 records has ‘revealed’ some ‘pattern of fraud’ that is being repeated in 2026” as justification to seize ballots in Fulton County this November.
Walbert outlined a scenario in which federal agencies interfere with voting in selected Democratic-leaning precincts in a close election, preventing state officials from declaring a winner. Under the Constitution, the House and Senate would then serve as judges of the election for their respective members. “Given the current membership of those bodies, the outcome is all too predictable,” Walbert wrote.
Walbert noted that in 2020 Trump tried to get the Justice Department to file lawsuits and seize election machinery to create confusion, but “officials in charge refused, there being no legal basis for doing so.” He added, “The people who refused Trump’s requests then are gone now.”
“This worst-case scenario would have been a dystopian fantasy just a few years ago,” Walbert wrote, “but with all that occurred in 2020 and since, it is no longer inconceivable.”