WASHINGTON (AP) — Federal laws and long-standing custom generally leave the U.S. military out of the election process. But President Donald Trump’s unsubstantiated warnings about widespread voting irregularities have raised questions about a possible military role.
If any element of the military were to get involved, it would likely be the National Guard under state control. These citizen soldiers could help state or local law enforcement with any major election-related violence. But the Guard’s more likely roles will be less visible — filling in as poll workers, out of uniform, and providing cybersecurity expertise in monitoring potential intrusions into election systems.
Unlike regular active-duty military, the Guard answers to its state’s governor, not the president. Under limited circumstances, Trump could federalize them, but in that case, they would generally be barred from doing law enforcement.
A look at the potential National Guard role in the election:
WHAT MIGHT THE GUARD DO?
Governors could activate the Guard to help with security in the event of violence. That happened this week in Pennsylvania amid demonstrations over the police killing of Walter Wallace Jr. in Philadelphia. The mayor’s office said the city requested that the Pennsylvania National Guard help with “the current situation and election preparation.”
In some states, Guard members in civilian clothes were used as poll workers during primary elections because of shortages caused by the pandemic. The Guard in New Jersey is helping with balloting now, and other states including Wisconsin say they may use the Guard at the polls.
Stephen Dycus, professor emeritus at Vermont Law School, said states can, if necessary, deploy uniformed Guard troops to help keep order at the polls. But, he said, “there’s a very fine line between protection and intimidation. So any activity that is designed to intimidate voters or suppress voting violates federal election laws.”
In preparation for any emergencies, including civil unrest surrounding the election, the National Guard has already designated military police units in two states to serve as rapid-reaction forces. According to the Guard, about 600 troops — 300 in both Alabama and Arizona — will be ready to deploy within 24 hours if requested by a governor in another state. National Guard leaders have bought additional protective equipment and have increased troop training on proper procedures during protests.
COULD TRUMP FEDERALIZE THE GUARD?
Federal law permits a president to federalize the Guard under very limited circumstances, including when he is “unable with the regular forces to execute the laws of the United States.” This language may be open to interpretation, but in the context of next week’s election, it appears to allow federalization only if there is a fundamental breakdown in state and local officials’ ability to conduct voting and vote counting.
If the president federalizes Guard troops, they are then under his control, not the governor’s. And the president can order them into a state without the governor’s permission.
William Banks, professor at Syracuse University College of Law, said that sending uniformed troops to the polls, including the Guard, would be unwise.
“The overriding point is that we don’t want the military involved in our civilian affairs. It just cuts against the grain of our history, our conditions, our values, our laws,” he said.
WHAT ABOUT THE ACTIVE-DUTY MILITARY?
