Ask Us Anything
Pardons, independent candidates, and more on the SAVE Act
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Today on public media I heard it expressed that Speaker Johnson could refuse to swear in Democrats elected in the midterms. What is your take on this?
(Chris) There is some truth to this, although I believe the specifics are a little different than your takeaway.
It is a bit more accurate to say that a majority of the members of the House of Representatives present and voting can refuse to seat whoever they wish, rather than the Speaker of the House being able to make that refusal on his or her own. The reason for this is because Article 1, Section 5 of the Constitution makes the House of Representatives the final arbiter of all elections to the House of Representatives. Whatever the House of Representatives decides when it comes to the winners of elections for the House of Representatives supersedes local election officials, secretaries of state, governors, and even the Supreme Court.
While this is worrying, the good news is that there is easily a majority of the House of Representatives ready to seat the free and fair winners of the 2026 elections. Even when Trump tried to overturn his defeat in the 2020 election, 66 Republican members of the House refused his demand, far more than the three which would be needed to seat the Democratic winners. Further, the number of House elections where the winner was contested has actually been in steep decline in recent decades since it peaked in the 1870s during Reconstruction. House elections are actually less contested than they have ever been, with only one in every thousand resulting in a disputed winner.
In short, this is more of a hypothetical concern than a practical one.
Since the presidential pardon power is in the Constitution, it is highly unlikely that it can be taken away. That being so, what possible curbs on abuse of presidential pardons like those so frequently demonstrated by Trump are possible as a deterrent against further abuse of the power?
(Matt) You are correct that the presidential pardon power is in the Constitution, and it would take a constitutional amendment to change or abolish it. For obvious reasons, this is not likely to happen. As the only constitutional power that is not checked by another federal branch or actor, it is the easiest presidential power to abuse. Clearly, the incumbent president has no interest in acknowledging any constraints on his power, which makes an unconditional power like the pardon especially dangerous in his hands.
The greatest curb on abuse of the presidential pardon is restraint. Presidential self-restraint would be the most direct remedy, but we can’t rule out the possibility that a future president will follow the precedent established by Donald Trump and use the pardon as a universal get-out-of-jail-free card. That’s why it will be important when this era is over to restore norms to guide political behavior. A future president potentially could be constrained from abusing the pardon power if his or her actions are viewed as an out-of-bounds act that generates outrage across Washington.
At a time when Trump does whatever he wants while his party sits quietly on the sidelines, it may be difficult to remember that not long ago political norms helped Washington operate. Although soft and informal, norms can be an effective tool in preventing abuses. That’s why norm restoration will be an important part of revitalizing democracy.
I am generally in agreement with you that it would be a heavy lift to interfere effectively in the midterms, but this war of choice in Iran is so insane it is hard not to look for an ulterior motive. Netanyahu has pushed every president in the last few decades to join his war with Iran. Either Trump is the only one stupid enough to do it, or he wants to use a war as pretense. Have recent events made you guys more nervous?
(Chris) The first thing I should note is that, in fairness to the subscriber who asked this question, they posed it two weeks ago right at the start of the war with Iran. It is entirely possible that they feel differently now than they did back at the beginning of March.
With that out of the way, my answer is still no. Rather than the war in Iran making me more nervous about Trump’s ability to interfere with the 2026 elections, instead the war has once again demonstrated the limitations of his power.
Trump hasn’t been able to make Iran’s leadership bend to his will. He hasn’t been able to keep the Straight of Hormuz open or oil prices from rising. He hasn’t been able to convince other nations to join him. He hasn’t been able to turn public opinion in favor of the war, to prevent bad news coverage of the war, or to stop protests of the war. I wrote about this earlier in the month in my article, “Five Ways Donald Trump Is Constrained, Even on Iran.”
Instead of the war showcasing Trump’s power to do as he wishes, it is showing that there are real constraints on what he can and cannot do. As such, the war has only reinforced my belief that Donald Trump cannot rig the 2026 elections.
I’m concerned about the way-too-many Democratic candidates for California governor.
(Matt) The concern here is that the dark blue state of California will end up with two Republicans facing each other in the general election for governor next fall. Because California selects its nominees in a nonpartisan, top-two “jungle” primary, it is mathematically possible for the two Republicans in the race to finish 1-2 in the primary, thereby eliminating all eight Democrats who are running. And polling right now shows it could happen. An Emerson College poll released last week shows Democrat Eric Swalwell and Republicans Steve Hilton and Chad Bianco clustered together at the top of the pack. But it’s important to note that Swalwell leads with only 17% of the vote (Hilton has 13% and Bianco 11%). Most of the remaining candidates are in single digits, and fully one-quarter of the electorate remains undecided.
As more undecided voters commit, these figures will change, and given California’s heavily Democratic lean it’s likely that the Democratic candidates will gain more support than the two Republicans. It is also likely that Democrats who find themselves perpetually mired in single digits will leave the race before the primary, allowing the Democratic frontrunners to consolidate support. Taken together, these factors make it unlikely that Democrats will be shut out in the race for governor of one of the most Democratic states in the union.
Why would Trump want the SAVE Act? The voters most affected are women who have legally changed their names. But many MAGA voters are not world travelers and probably don’t have passports or the ability to get their birth or marriage certificates.
(Chris) There is a longstanding belief, in both major parties, that Democrats need disproportionate support from low-propensity voters in order to remain competitive with Republicans nationwide. The reason for this belief is that, well, it was largely true for decades! As such, for the last two decades Republicans have tried to make it more difficult for people to vote, while Democrats have tried to make it easier, with both sides believing that the respective election laws they were trying to enact would help their party.
Longstanding beliefs like this are hard to change, even when there is good reason to believe they aren’t true anymore. The belief that Democrats benefit from higher turnout among low propensity voters certainly was not true in 2024, and has not been true in the 2025-2026 elections so far. With Democrats receiving an ever-higher share of college educated voters, they are simultaneously receiving an ever-higher share of high-propensity voters who are going to figure out a way to cast their ballots no matter what laws are passed. Education is one of the strongest predictors of voter turnout levels.
It is entirely possible that the SAVE Act, even if passed, would actually backfire on Republicans. Married women were slightly pro-Trump in 2024, for example. By contrast, holders of valid passports lean Democratic. Given this, Secure Democracy argues that the proof of citizenship requirement proposed by the SAVE Act would actually hurt Republicans, while the Bipartisan Policy Center argues it would not benefit either party.
So, why does Trump still want the SAVE Act, despite all of this? Because he is a conspiracy theorist who thinks that Democrats only win elections because of massive voter fraud, such as having non-citizens cast ballots in droves in blue states. A substantial number of conservatives share this belief, which is why they are zealous supporters of the SAVE Act.
What is your assessment of Dan Osborn, who is running as an independent Senate candidate in Nebraska? Can he win? Would he caucus with the Democrats?
(Matt) Dan Osborn has an outside chance if Democrats do not nominate a candidate. He came close two years ago when he ran as an independent against incumbent Republican Senator Deb Fischer. Recognizing that an independent with a populist platform might appeal to more Nebraska voters than a candidate with a “D” after their name, Democrats chose not to field a candidate in order to boost Osborn’s chances. Fischer ended up winning that election by only six points. It wouldn’t have been as close with a Democrat in the race.
Osborn is a serious candidate. He has already raised $2 million for his independent bid and says he is not accepting corporate money. It’s possible that Republicans understand the threat Osborn poses, because Nebraska Democrats—who have again decided to keep their ballot line open—are accusing the campaign of Republican incumbent Pete Ricketts of planting a Ricketts sympathizer in the Democratic primary so he can win the party’s nomination and draw votes from Osborn.
If he were to pull off an upset, it’s not clear that Osborn would caucus with Democrats. Then again, it’s not clear that he would caucus with Republicans either. He has been vocal about his opposition to the two-party system and two years ago contended that he would not caucus with either major party, although he might change his mind when he realizes that the only way to get committee assignments is from the Republican or Democratic leadership. Should that be the case, he would find himself more aligned with team blue, but a lot of things would have to go right for him to get to that point.