So much for states’ rights. The federal Department of (In)Justice sued multiple states last week, including Colorado, to obtain extensive voter data. It is both a violation of fundamental constitutional rights and an attack on individual liberties.
It is also exactly what power-devouring autocracies do.
The total number of lawsuits against states, municipalities and the District of Columbia now stands at 22. That is 22 different attempts to undermine free and fair elections and 22 different attacks on democracy. That is 22 cases that demonstrate President Donald Trump and his administration will do anything to consolidate power.
The easiest place to start is with the U.S. Constitution. It is not silent on this matter. The “Elections Clause” in Article I is clear: “The Times, Places and Manner of holding Elections … shall be prescribed in each State.”
For almost 250 years, courts have read that clause to give deference to states over their elections. That is why we have so many different laws in so many different places. For example, Colorado employs universal mail balloting, which sends ballots to voters before each election, while most states do not. In Colorado we have seen that universal mail balloting increases participation and decreases the opportunity for voter fraud or mistake.
Other states ignore the data and succumb to the demands of conspiracy theorists and anecdotal speculation. That is their right under our form of government. As long as their laws do not infringe on any federal laws or protections, such as qualifications for congressional candidates or anti-discrimination protections, then states have great leeway to self-determine how to administer elections.
For decades, the Republican Party championed states’ rights, including in elections. It proved a powerful argument when they sought to make changes that benefited their candidates. They made changes to ID laws and mail in balloting and proof of residency, all in efforts to suppress anti-Republican votes. When those efforts collided with federal protections, they used states’ rights as a shield.
Now, with Trump in power, many of the same people have not just abandoned that principle, but deride it as dangerous. Shame is not their long suit.
Equally as concerning as the constitutional issues, Trump’s data grab threatens personal freedoms for millions of Coloradans. His administration has partnered with Palantir to amass a master list that could be used for any number of nefarious purposes by an unscrupulous administration. Ironically, that means a Colorado-based company could be charged with providing the federal government the means to comb through our personal lives.
Inputting election data would be a big part of an overall picture. For example, that data holds information like past addresses, voting history and signature verifications. When combined with the information Palantir is gathering from other government agencies, it could be used as a means to predict behavior, conduct surveillance or potentially threaten Americans.
None of that sounds very good.
That is why Colorado Attorney General Phil Weiser and Colorado Secretary of State Jena Griswold have taken firm stances against Trump’s aggression. They understand that there is no negotiating with autocrats. You resist or you collaborate — there is no in-between.
Opposite Weiser, Griswold and the other election officials and attorneys pushing back against Trump’s overreach will be U.S. Assistant Attorney General Harmeet Dhillon, who oversees the DOJ’s Civil Rights Division. That’s right, the person charged with protecting Americans’ rights is actively trying to undermine them.
Of course, Dhillon was also Trump’s personal and campaign attorney working on election cases well before getting her spoils appointment. Her firm represented him — not particularly well — in the 14th Amendment case I filed against Trump in 2023. They effectively lost the district court case and the Colorado Supreme Court case. It was not until Trump brought in Jonathan Mitchell — a seasoned U.S. Supreme Court advocate — that he won before SCOTUS.
Now it looks like these cases will follow a similar path. At some point, the cases will be consolidated and end up before the Supreme Court. Given the latitude they have given him over the past two years — from deciding in his favor in our case to the immunity case to wins on immigration and cuts to federal agencies — it is impossible to predetermine what boundaries they will not cross.
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That is what makes these cases so important. Having nearly half the states asserting their rights in an area the Constitution grants them express power presents a significant test of the federalist system developed by the country’s founders. A ruling against those states would further hasten our descent into an autocracy with power centered exclusively within one man.
Such an outcome would only embolden him to keep pushing lines. For example, a few days ago the Wall Street Journal reported that Trump has talked to another of his former attorneys, Alan Dershowitz, who has written a book concluding Trump may be able to seek a third term in contravention of the 22nd Amendment.
States’ rights vs. Trump’s power. The final decision could have an impact far beyond just a dispute over entries in a database.
Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on BlueSky: @MarioNicolais.bsky.social.
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