{"id":280,"date":"2026-07-08T19:13:08","date_gmt":"2026-07-08T19:13:08","guid":{"rendered":"https:\/\/nationalconsumerreportss.com\/?p=280"},"modified":"2026-07-08T19:13:08","modified_gmt":"2026-07-08T19:13:08","slug":"the-military-and-elections-part-i-the-legal-wall","status":"publish","type":"post","link":"https:\/\/nationalconsumerreportss.com\/?p=280","title":{"rendered":"The Military and Elections, Part I: The Legal Wall"},"content":{"rendered":"
\n

Editor’s note: Listen to a discussion with the autho<\/em>rs on the Lawfare Daily podcast here. F<\/em>ind Part II here.<\/em><\/p>\n

Read more The Military and Elections, Part II: Deploy First, Litigate Later<\/a><\/p>\n

***<\/p>\n

Just this year, President Trump said he regrets that he did not order the National Guard to seize voting machines after the 2020 elections. Steve Bannon urged Trump to \u201ccall up the 82nd and 101st Airborne\u201d in 2026 to \u201cget around every poll\u201d and make sure that only citizens are voting. Secretary of Defense Pete Hegseth, when asked whether he would refuse an order to deploy troops to polling places during the midterms, avoided answering\u2014and falsely claimed that troops were deployed to polling places in 15 states under Joe Biden. <\/p>\n

Critics are alarmed. They see these statements as harbingers of attempts to interfere with the midterm elections in November. \u201cHe\u2019ll just claim that there\u2019s some problem with an election\u2014and then he\u2019s got troops on the ground that can take control,\u201d said Illinois Gov. J.B. Pritzker. \u201cLet\u2019s be clear,\u201d said Sen. Tammy Duckworth (D-Ill.), \u201cwe know Trump is laying the groundwork and planning to send troops to polling places to intimidate Americans and interfere in our elections.\u201d <\/p>\n

Whether these fears are justified is not just a question of politics\u2014it\u2019s also a question of law. Does the president actually have the legal authority to use the military in connection with the elections? <\/p>\n

Yes, there are limitations on using the military for elections, both because there are specific laws protecting elections from military interference and because there are broader (but still uncomfortably vague) legal restrictions on domestic deployments of the military. But the laws have exceptions, and the president\u2019s Article II powers can serve as the basis for claims of inherent authority. That means that evaluating the threat of military interference in elections requires analyzing an intricate patchwork of statutes and constitutional powers\u2014whose interaction is mostly untested.<\/p>\n

This article describes the relevant limitations on the president\u2019s use of the military for elections. In a companion article, we discuss the authorities the president may cite in support of his efforts to deploy troops notwithstanding those limitations. The pull and push between these restrictions and the powers the administration may insist it has to overcome them is where the uncertainty lies.<\/p>\n

Domestic Deployment Law and What It Means for Elections <\/strong><\/p>\n

The Constitution mostly reserves to the states the authority to administer elections, with a role for Congress. But the text of the Elections Clause is less informative than it may seem: It defines only states\u2019 power to \u201cprescribe\u201d the \u201cTimes, Places and Manner of holding Elections\u201d and Congress\u2019s power to \u201cmake or alter such Regulations.\u201d It says nothing about other actions that might affect elections\u2014ensuring security, for example. However, neither the Constitution nor any founding-era law affirmatively authorizes the president to involve the military in U.S. elections, and the few statutes that address the question at all prohibit it in most circumstances. <\/p>\n

Legislation originally passed during the Civil War and still on the books today sets some clear limits: Members of the armed forces shall not be present or direct armed men to be present at polling locations; shall not determine voter eligibility; shall not prevent qualified voters from voting; shall not direct or interfere with election officers; and shall not set regulations for administering elections. In their modern form, these rules appear both as criminal offenses (18 U.S.C. \u00a7\u00a7 592-593) and as a civil provision (52 U.S.C. \u00a7 10102).<\/p>\n

These statutory limits sit in obvious tension with the president\u2019s broader constitutional authorities under Article II and statutory power to use the military. The question is whether the military can lawfully be used to interfere in elections so long as it doesn\u2019t run afoul of these individual limiting pieces of legislation. <\/p>\n

The short answer: maybe not, maybe so. Because no other law directly addresses the military\u2019s role in elections, the analysis turns, at least in part, on the more basic question of whether\u2014and under what circumstances\u2014the military may be used domestically at all. Contrary to popular belief, the answer is not \u201cit can\u2019t be\u201d\u2014or even \u201cit can\u2019t be, unless the president declares an insurrection.\u201d <\/p>\n

Constitutional Law and Founding-Era Context<\/em><\/p>\n

The Constitution doesn\u2019t expressly prevent the domestic deployment of the military\u2014far from it. Article I, Section 8, explicitly empowers Congress to provide for \u201ccalling forth\u201d the militia for the three purposes of executing the laws of the union, suppressing insurrections, and repelling invasions. Article IV, Section 4, also vests the federal government with the responsibility to protect the states against not only invasion but also, at the states\u2019 application, domestic violence. These authorizations, together with Article II\u2019s and Take Care Clause, create a system in which Congress generally decides in advance the situations in which domestic deployments may occur, while the president determines two things: whether the facts trigger his statutorily-granted authority or constitutional authority to command the troops, and the operational specifics of any deployments. <\/p>\n

Understanding this area of law requires looking beyond the constitutional text to the historical context<\/span>. There is little doubt that the founders envisioned that the government could enforce the laws of the union using troops if necessary; it was not unusual for military personnel to handle certain law enforcement tasks. But Congress built civilian federal law enforcement capacities as distinct from the military almost concurrently with the Constitution\u2019s drafting. The Judiciary Act of 1789 created federal marshals, and the further clarified constitutional limitations on when the president could use troops domestically.<\/p>\n

Legal Evolution Distinguishing Military and Civilian Powers<\/em><\/p>\n

Over time, civilian law enforcement\u2014at both the state and federal levels\u2014emerged as the plenary authority for enforcing the law. The military retained a circumscribed role inside the United States, but that role stayed effectively limited to emergency situations.<\/p>\n

Early policing in America consisted of volunteer \u201cnight watches\u201d as well as informal, privately funded efforts. Boston founded the first public police force with full-time officers in 1838, driven in part by business owners who had previously hired guards directly to protect their property and goods in transit, and wanted to shift the cost to the wider citizenry. The South relied on slave patrols for early policing. Around the Civil War, the military became the primary policing institution in the region for a circumscribed period of time, particularly during Reconstruction. But that period was short-lived: The Posse Comitatus Act (18 U.S.C. \u00a7 1385), enacted in 1878, ensured that the military could be used for law enforcement only in a set of drastic situations explicitly defined in law. By the late 1880s, all major cities had civilian police forces. <\/p>\n

Today, the Posse Comitatus Act is widely regarded as the <\/em>critical limitation on domestic military deployment. The current version of the statute bars the use of any part of the Army, Navy, Marine Corps, Air Force, or Space Force \u201cas a posse comitatus or otherwise to execute the laws.\u201d Posse comitatus<\/em> literally means \u201cpower of the county\u201d; legally, it refers to a group of people mobilized by officials such as a sheriff to enforce the law or keep the peace. The Posse Comitatus Act exists to keep troops\u2014as opposed to civilians\u2014from filling that role. But the rule isn\u2019t ironclad: As described in our companion piece, the act itself carves out explicit exceptions, such as the Insurrection Act.<\/p>\n

Other laws also restrict the military\u2019s use for law enforcement. Counterintuitively, some appear in an act designed to authorize<\/em> military support of law enforcement, located at 10 U.S.C. \u00a7\u00a7 271-284, which permits certain military support of civilian law enforcement. (This series of statutes is commonly referred to as defense support of civil authorities, or DSCA.) Originally passed in 1981 during the so-called war on drugs, DSCA is now a collection of specific, narrow ways in which the military can assist domestic law enforcement, including logistical support (such as lending equipment or facilities and providing training) and information-sharing. <\/p>\n

A few provisions authorize active operational involvement beyond logistical support, but they are tightly defined: \u00a7 282 covers emergencies involving weapons of mass destruction, \u00a7 283 covers bombings in public places, and \u00a7 284 covers combating drugs and transnational organized crime. The act is narrowed further by a directive requiring the defense secretary to issue ensuring that \u201cany activity … under this chapter does not include or permit direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a search, seizure, arrest, or similar activity\u201d unless authorized by other statutes. <\/p>\n

These laws form the basis of the current legal regime, which emphatically disfavors domestic use of the military, much as the framers did. With this in mind, the elections-related statutes\u2014\u00a7\u00a7 592-593 and 10102\u2014take on more significance: They\u2019re intended to make it unmistakably clear that the military\u2019s already limited domestic role is even more restricted when it comes to U.S. elections.<\/p>\n

Limiting the Military\u2019s Role in U.S. Elections<\/strong><\/p>\n

The history of elections-related domestic deployment law only reinforces the view that Congress wanted to keep the military out of the voting process. The Civil War and Reconstruction were essential to the evolution of these statutes. The period was highly anomalous: For many of those years, Congress made more<\/em> room for military involvement in elections. But the way this disruption was resolved actually helps explain some of the restrictions still in place today.<\/p>\n

The Origin Story: Extra Protection for Elections<\/em><\/p>\n

The period following the Civil War was crucial for the development of domestic deployment law generally, and of elections specifically. In 1864, Senator Lazarus Powell of Kentucky introduced a bill in reaction to alarming reports of military interference in the 1862-1863 elections in Delaware, Maryland, Missouri, and Kentucky, slave-holding states that fought for the Union. The Senate Committee on Military Affairs and the Militia, to which the bill was referred, detailing examples of military intervention in elections under martial law\u2014for instance, military orders declaring that election judges could be charged with military offenses if they excluded qualified voters or admitted rebels to vote, military orders directing commanders to position troops where guerillas might intimidate voters, and military orders to remove a disloyal candidate from lists at certain polling sites. <\/p>\n

Contrary to Powell\u2019s argument, the report concluded the use of the military was justified given the United States was engaged in an ongoing war against enemies (that is, the Civil War) and those enemies should be stopped from voting or running for office. <\/p>\n

Reports of military interference continued through the 1864 presidential election, including efforts by Union Army officials to grant Republican soldiers furlough to vote while denying it to Democrats. But in 1865, near the end of the Civil War, Congress enacted a criminal as Powell had proposed. This rejection of the committee\u2019s recommendation represented Congress\u2019s considered judgment that the military should not be involved in elections going forward, even during war. (Unsurprisingly, the legislation also reflected a political compromise between Northern Republicans, who tended to favor using the military to enforce federal law, including Black men\u2019s voting rights, if local officials refused, and Southern Democrats, who were outraged by the continued presence of Union troops.) <\/p>\n

Read more Come Work With Us\u2014As Our New Associate Editor!<\/a><\/p>\n

The law had three components, all establishing criminal offenses punishable by fines and\/or imprisonment and mandatory disqualification from future office. First, the statute forbade the presence of troops (and armed men) at the polls in almost all circumstances:<\/p>\n

[I]t shall not be lawful for any military or naval officer of the United States, or other person engaged in the civil, military, or naval service of the United States, to order, bring, keep, or have under his authority or control, any troops or armed men at the place where any general or special election is held in any state of the United States of America, unless it shall be necessary to repel the armed enemies of the United States, or to keep the peace at the polls. <\/p><\/blockquote>\n

Second, it prohibited members of the military from regulating or interfering with elections:<\/p>\n

[I]t shall not be lawful for any officer of the army or navy of the United States to prescribe or fix, or attempt to prescribe or fix, by proclamation, order, or otherwise, the qualifications of voters in any state of the United States of America, or in any manner to interfere with the freedom of any election in any state, or with the exercise of the free right of suffrage in any state of the United States. <\/p><\/blockquote>\n

Third, it prohibited members of the military from impeding individuals\u2019 voting rights and the free administration of elections:<\/p>\n

[A]ny officer or person in the military or naval service of the United States, who shall order or advise, or who shall directly or indirectly, by force, threat, menace, intimidation, or otherwise, prevent or attempt to prevent any qualified voter of any state of the United States of America from freely exercising the right of suffrage at any general or special election in any state of the United States, or who shall in like manner compel, or attempt to compel, any officer of an election in any such state to receive a vote from a person not legally qualified to vote, or who shall impose or attempt to impose any rules or regulations for conducting such election different from those prescribed by law, or interfere in any manner with any officer of said election in the discharge of his duties, shall for any such offence be liable to indictment[.] <\/p><\/blockquote>\n

These provisions were never repealed. In fact, they were strengthened over time\u2014after a very rocky start. <\/p>\n

The realities of Reconstruction significantly limited the impact of the 1865 law for a simple reason: Some states were under military occupation. In 1867 and 1868, after the Civil War ended, Congress passed the , establishing military districts in Confederate states that had not yet ratified the 14th Amendment (ratification was required to rejoin the Union). The legislation specifically provided that the , to ensure that only officers loyal to the Union\u2014rather than former Confederates\u2014held office, as well as to protect the voting rights of newly freed slaves. For several years, the military was charged with overseeing voter registration and supervising elections.<\/p>\n

By 1870, all of the southern states had rejoined the Union, ending the military districts established by the Reconstruction Acts. But Congress then passed a trio of statutes known as the Enforcement Acts to effectuate the 14th Amendment and safeguard Black Americans\u2019 newly established right to vote. <\/p>\n

The first of these enforcement laws, known as the , gave federal marshals \u201cposse comitatus\u201d authority to mobilize military force against interference with voting rights on the basis of race and to enforce judicial process issued under the act. The , passed in 1871, put certain aspects of national elections under federal supervision. The Third Enforcement Act, also known as the KKK Act, passed later in 1871 and permitted the president to suppress by military force insurrections or unlawful combinations or conspiracies that deprived persons of a constitutional right (part of today\u2019s Insurrection Act) and to suspend the writ of habeas corpus in some circumstances. <\/p>\n

In short, these laws served as a kind of bridge between the immediate postwar full military occupation and self-governance for the southern states. They recognized that state officials held control of state government\u2014but they also accounted for the possibility that the federal government might need to intervene to ensure that federal laws, particularly voting rights laws, were enforced. For instance, President Ulysses S. Grant deployed troops to South Carolina in 1871 on the basis of the Third Enforcement Act after he determined that Ku Klux Klan violence was depriving individuals of their constitutional and statutory \u201crights, privileges, immunities, and protection.\u201d<\/p>\n

There was an undeniable tension between the Enforcement Acts, which expressly permitted some military intervention to protect voters\u2019 rights, and the , which criminalized the presence of troops at polling locations unless necessary to \u201crepel the armed enemies of the United States, or to keep the peace at the polls.\u201d For instance, the , in Section 8, directed deputy marshals to attend \u201cthe polls of the election\u201d in certain districts and upon request; elsewhere in the act, those marshals were also authorized to call in military reinforcements to assist in performing their duties. (Specifically, Section 10 authorized marshals and deputy marshals to \u201csummon and call to their aid … such portion of the land or naval forces of the United States … as shall be necessary\u201d to ensure \u201cfaithful observance\u201d of the 15th Amendment, among other things.) <\/p>\n

The 1865 law was formally codified in 1874 at \u00a7\u00a7 5528\u20135531 and was never repealed. The tension between these laws gradually dissolved as civilian control was reestablished and the southern states were readmitted to the Union. <\/p>\n

The newly reconstituted Congress\u2014which now included representatives of states that had just emerged from military occupation\u2014soon reconsidered the propriety of using the military domestically in a nation no longer at war with itself. Recognizing that prohibitions on military interference in elections were paramount, Congress even found need for additional restrictions on domestic military usage. The 1878 Posse Comitatus Act was one of these new limitations. <\/p>\n

Congress spent much of 1879 attempting to pass additional restrictions on military interference in elections. In April, President Rutherford B. Hayes vetoed an Army appropriations bill because of a rider that modified the 1865 law to remove the exception \u201cto keep the peace at the polls.\u201d He surveyed the existing landscape of other statutes that criminalized military interference in elections (for example, prescribing qualifications of voters or exercise of suffrage; intimidating, threatening, or preventing any qualified voter from voting; threatening election officers; and so on) and concluded that not only were those restrictions sufficient but Congress had also passed the 1878 Posse Comitatus Act \u201cto remove all apprehension of such interference with elections.\u201d<\/p>\n

Hayes also vetoed a standalone bill weeks later that would have limited exceptions to military employment at polls to only two circumstances: first, when \u201csuch force be necessary to repel the armed enemies of the United States\u201d and, second, \u201cto enforce section 4, Article IV, of the Constitution of the United States and the laws made in pursuance thereof, on application of the legislature or executive of the State where such force is to be used.\u201d Notably, Hayes said that he opposed this bill because it would have allowed the Insurrection Act to \u201cabrogate\u201d the predecessor statutes \u201con certain days and at certain places,\u201d by restricting domestic military usage to a more limited set of situations than those predecessor statutes allowed. Though Hayes\u2019s legal analysis is debatable, the fact that he vetoed two bills on these grounds is a clear indication that he was jealously guarding his power to use the military against a perceived threat. <\/p>\n

Congress was unable to overcome the president\u2019s veto. But in 1909, amid a broader effort to codify the penal code, legislators further privileged elections by from the 1865 statute. The revised version provided that troops could be present in only one circumstance: to \u201crepel the armed enemies of the United States.\u201d The explained why the language was dropped: The \u201cprovision for keeping peace at the polls is inoperative, as there is no provision anywhere in the law authorizing the keeping of troops for that purpose. The omission of these words therefore does not in any sense diminish the force of existing law.\u201d The 1865 law, as amended, remains on the books today in the form of two criminal statutes, 18 U.S.C. \u00a7\u00a7 592 and 593, and one civil statute, 52 U.S.C. \u00a7 10102. The key change from 1909\u2014clarifying that the military\u2019s only permissible presence at election sites was when \u201cnecessary to repel the armed enemies of the United States\u201d\u2014has remained.<\/p>\n

Congress also passed legislation around the same time reinforcing that elections were to be under civilian control: The Second Enforcement Act charged with supervising certain aspects of elections, and an extended judges\u2019 role. As southern states reasserted control after Reconstruction, they succeeded in pushing back against federal oversight of elections\u2014notwithstanding multiple Supreme Court decisions that had upheld key provisions of that regime. By the 1890s, the controversial scheme had collapsed both for political reasons and due to three major decisions from the Supreme Court that dismantled large portions of the acts. Proposed legislation to extend the Enforcement Acts failed in 1891, and many Republicans who had supported the statutes were defeated in the 1890 and 1892 elections. In 1894, the Enforcement Act\u2019s federal election supervision provisions were formally repealed. The legal framework for an affirmative role for the federal government in overseeing elections was dismantled, and power reverted to the states. <\/p>\n

But even as the pendulum swung from federal back to state authorities one principle remained constant: Civilians\u2014not the military\u2014were responsible for elections.<\/p>\n

Modern Law Protecting Elections <\/em><\/p>\n

The modern-day versions of the 1865 law were codified in 1948. Section 592 bars any member of the armed forces from ordering, keeping, or having \u201cunder his authority or control any troops or armed men at any place where a general or special election is held.\u201d It contains a narrow exception for cases in which \u201csuch force [is] necessary to repel armed enemies of the United States.\u201d Section 593 bars any member of the armed forces from interfering in any manner with an election officer\u2019s discharge of his duties, interfering with elections by altering voter qualifications, blocking qualified voters from casting a vote, or compelling election officers to accept votes that are not cast by qualified voters. At first blush, the penalties for both \u00a7 592 and \u00a7 593 look relatively standard: Violators can be fined and\/or imprisoned for up to five years. But there\u2019s more: Violators will \u201cbe disqualified from holding any office of honor, profit, or trust under the United States.\u201d<\/p>\n

Also traceable to the 1865 Act, 52 U.S.C. \u00a7 10102 similarly mandates that no officer of the armed forces \u201cshall prescribe or fix, or attempt to prescribe or fix \u2026 the qualifications of voters in any State, or in any manner interfere with the freedom of any election in any State, or with the exercise of the free right of suffrage in any State.\u201d Although the statute does not provide for a specific cause of action, it serves as an affirmative statement of the law\u2014and as further proof that Congress gives elections a special status. The standard limitations on domestic use of the military were apparently insufficient to safeguard elections; Congress deemed it necessary to pass three separate statutes to confer additional protections. <\/p>\n

These laws have survived more than 160 years, across roughly 80 or so election cycles. And they haven\u2019t gone unnoticed. The Justice Manual sets forth specific procedures for enforcing \u00a7 592. The Defense Department Directive on Defense Support of Civil Authorities, last updated in 2018, forbids \u201cDoD personnel and National Guard in Title 32 status\u201d from \u201cconduct[ing] operations at polling places and strictly refrain from activities similar to those prohibited by\u201d 18 U.S.C. \u00a7\u00a7 592-594. <\/p>\n

Unfortunately, that\u2019s not the end of the story. These statutes, however well-established and however specific, must be weighed against the authorities that a president might assert to justify violating them\u2014in which context, as we discuss at length in our companion piece, the protections may provide colder comfort. <\/p>\n

Read more Congress Should Do Something: The Case for (Fixing) the Great American AI Act<\/a><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Multiple statues prohibit military involvement in elections. 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