Gen. Dan Caine, the nation's top military officer, told Sen. Elissa Slotkin (D-Mich.) that the U.S. military has “no plans” to be at polling places in November. But President Trump has made it impossible to dismiss fears of military interference.
His relentless attacks on election integrity, his suggestion that Republicans “should take over the voting in at least 15 places,” and his refusal to rule out invoking the Insurrection Act have many bracing for a potential collision. Americans across the country worry that their constitutional right to vote could be curtailed by Trump's increasingly desperate search for anything to preserve his party's congressional majorities.
The legal bar for deploying troops to polling places is high. The Posse Comitatus Act prohibits using federal troops for law enforcement. Federal law also makes it a crime to post “troops or armed men” at polling sites, though exceptions exist. The Insurrection Act permits deployment in response to “unlawful obstructions, combinations, or assemblages” or “domestic violence, unlawful combination, or conspiracy.” Troops can legally be deployed to polling sites to “repel enemies of the United States.”
If the president wants to deploy troops to election sites, he could easily manufacture a set of facts that satisfies these legal loopholes. Most senior commanders understand the damage such deployments would cause—not only to democracy but also to themselves, as they—not the president—could face criminal prosecution.
In his testimony before Congress, the commander responsible for domestic military use acknowledged that laws prohibit deploying troops to polling sites and asserted he would refuse orders that violate them. However, if resistance fails and the president and his Office of Legal Counsel concoct legal and factual justifications, military commanders and their judge advocates can mitigate the impacts by exercising good judgment.
First, state and local officials and commanders must be transparent with each other and the media about what is happening at every polling site. Commanders must show moral courage if the facts on the ground differ from what Trump and his allies are peddling. If ordered to polling places, they must focus on de-escalation.
They must also resist mission creep. Exceptions to federal law allowing troop deployment to polling places are narrow. Commanders cannot let their responses exceed those limits. For example, federal troops deployed to quell discontent cannot seize voting equipment, ballots, or otherwise interfere in election processes.
If the secretary of Defense orders commanders to wield an iron fist, they can and must refuse to intimidate anyone or interfere in the voting process, donning velvet gloves instead. Rules must stipulate that servicemembers are neither seen nor heard by voters unless there is an actual civil disturbance that exceeds law enforcement's ability to respond. They must also acknowledge the limits of the legal authorities upon which the deployment is based.
For instance, troops may only be used to address physical disturbances at the polls. They may not do anything that might intimidate voters, including detaining them for any reason other than to quell disturbances. They may not look for or detain suspected non-citizens, enforce voting procedures, or observe voting processes.
The public should be concerned that Trump may deploy the military as part of his effort to “take over” voting in many locations. But that concern need not translate to fear that troops will adversely impact the election. If existing legal guardrails fail, there is still a Plan B. The military officers ordered to command those troops and the judge advocates advising them can mitigate whatever intimidation Trump seeks to achieve.
Steven Lepper is a retired U.S. Air Force major general, Dan Maurer is a retired U.S. Army lieutenant colonel, and Eugene R. Fidell is a military law expert.
