My colleagues Ben Berwick and Jessica Marsden have an absolute must-read op-ed in the San Francisco Chronicle this morning. Gift link here.
In it, they unpack a certain mystery behind the Trump administration’s most aggressive attack on the midterms yet: DOJ’s sweeping lawsuit against my home state, California. The Trump administration is accusing California of having 20,000 ineligible people on the state’s voter rolls — a number that both sounds scary and is less than a tenth of one percent of California’s 23 million registered voters (and almost certainly includes eligible voters, as the administration itself has admitted).
The administration is now attempting to intimidate both Californians — with a highly staged pre-dawn military-style raid (a glitzy press exclusive coordinated with the conservative New York Post) — and our election officials. The president posted a threat that election officials “will all go to jail for a long period of time!!!” for counting any ballots cast by anyone on the list of suspected ineligible voters. (As a reminder, just because someone is registered to vote doesn’t mean that they will actually cast a ballot.)
There’s a tremendous amount of good analysis of the administration’s theatrics and lies about noncitizen voting. For instance, two I recommend:
The New York Times: How claims of widespread noncitizen voting fall apart
But in their op-ed, Ben and Jessica go a bit beyond just the legal details and ask about the timing of this whole thing.
The Trump administration first raised its absurd claim to have found tens of thousands of “noncitizen voters” on California’s voter rolls back in July. Why did they wait three months — deep into the 90-day NVRA pre-election “quiet period,” when mass voter removals are illegal per federal law — to send a flash drive with names of voters they wanted disenfranchised?
Why did the feds wait so long, until after mail ballots had already been sent out, then give California just 48 hours to respond before suing? If they’re genuinely trying to make sure that no ballots are cast by ineligible voters, that doesn’t seem like a particularly good legal strategy.
The simplest explanation is the same reason why the flash drive of voter names came with the password on a sticky note: These people are bad at their jobs. This is a hackish, rushed attempt to spread lies about our election and make President Trump happy, not a serious legal strategy.
But (without necessarily discounting that possibility) Ben and Jessica raise another explanation:
In all likelihood, DOJ knows its lawsuit against California will fail. This case has all the hallmarks of a “zombie lawsuit,” a lawsuit deliberately filed close to Election Day intended not to influence voting, but as a legal placeholder to try to overturn results if the election goes the other way.
Zombie lawsuits are the new frontier of election subversion litigation
We first noticed zombie lawsuits — and Jessica coined the term — back in 2024. In that election, a slate of different lawsuits filed by Trump and his allies had the same pattern:
They were broad, challenging tens of thousands of voters’ eligibility or some large portion of the election administration process.
They were baseless or factually nonsensical.
They were filed way too late, or had other procedural or technical flaws, making them essentially impossible for a court to even consider.
We realized that this was almost certainly by design.
Essentially every major election in the modern era has seen some pre-election litigation trying to tweak the rules in one direction or the other.
These lawsuits were not that. They clearly didn’t care about changing the playing field before the election. They were placeholders — planted in the court system in advance — so that if Donald Trump and his allies lost, they could use the claims to retroactively try to overturn the result.
Obviously, Donald Trump won the 2024 election, so there was no need for any of those zombies to rise again. But there was one race where one of Trump’s allies lost — and the dead did indeed attempt to rise: North Carolina. In 2024, the Republican state supreme court candidate lost by just 734 votes. Instead of admitting defeat, he used a failed pre-election lawsuit to try to overturn his loss.
That zombie lawsuit — filed before the election but after election officials had already started mailing ballots to overseas and military voters — challenged the eligibility of certain voters who, per The New York Times, “unknowingly registered, sometimes years or decades ago, using erroneous forms that did not clearly require applicants to provide the last four digits of a driver’s license or a Social Security number as proof of identity.” The loser tried to use this lawsuit to throw out over 60,000 ballots cast early or by mail, even though all of those voters had presented proof of identity.
The case dragged on for months, and there was a serious, coordinated effort by Republicans across the state to use the zombie lawsuit to reverse the outcome.
Thankfully, that zombie turned out to be little more than a stinking corpse. A Trump-appointed federal judge eventually saw through the strategy and quashed it. But the playbook is now in the open, and it suggests how the California situation could play out in the weeks ahead.
The mother of all zombie lawsuits
In their op-ed, Ben and Jessica suggest five scenarios to watch for, in which the Trump administration may use this legally doomed lawsuit for other ends:
The administration intimidating or harassing election officials, such as Trump’s threat to try to jail them for tabulating the ballots of any of these 20,000 Californians (even though not tabulating them would likely be the actual crime). Note: This legal harassment does not need to result in criminal convictions for it to be extremely harmful to election officials.
ICE confronting or intimidating eligible voters, such as DHS’ tactic of sending armed agents to Americans’ homes to question their eligibility to vote (Protect Democracy is representing the California Nurses Association in their lawsuit against this policy).
Trump allies using the lawsuit as a pretext to try to block election certification (which would also be a crime).
Federal agents citing this lawsuit as justification for trying to seize California ballots or other election materials (you guessed it: also a crime).
The president or his allies filing Hail Mary legal challenges against the results, arguing — as in North Carolina in 2024 — that any race where any of these 20,000 people voted needs to be overturned.
But the thing about zombie lawsuits?
They’re just like the smoke machines that Tova wrote about last week. They’re an illusion. They rely on a perception of legitimacy — a public perception that they’re good-faith legal filings, not the legal equivalent of a ransom note made of cut-out magazine letters — to be effective.
If we can, in advance, expose this cynical and sinister strategy for what it is, it’s doomed to fail. These corpses will stay in the ground where they belong.
So here’s what you can do:
Help spread the word. Share Ben and Jessica’s op-ed with your networks.
Help explain this tactic — on social media, in your neighborhood, with your friends and family. Be a resource and a guide. Speak with clarity, not fear.
If and when there’s an attempt to raise the dead, be ready to speak out. The zombie lawsuit in North Carolina failed in part because tens of thousands of North Carolinians made their voices heard.
Let’s keep these zombies in the ground.