On Aug. 31, 2026, the Associated Press reported that Chairman of the Joint Chiefs of Staff, Gen. Dan Caine, had assured Sen. Elissa Slotkin in writing that the military has “no plans to send Federal military personnel or Federalized members of the National Guard to polling places during the 2026 elections.” Slotkin had sought that assurance after President Donald Trump declined to rule out sending troops to American polling places this November. In January, the president had said that he regrets not sending the National Guard to seize voting machines after the 2020 election, an election he continues to falsely claim was stolen. In May, when asked directly whether he would send ICE or the National Guard to the polls, the president equivocated, saying he would do “anything necessary to make sure we have honest elections.”
But federal law is far less equivocal. Since 1865, Congress has made it a crime to bring troops or armed personnel to a place where an election is held.
The desire to keep troops far from elections was born out of both democratic principles and experience. The core aim of a democratic election is to avoid the bloodshed that historically accompanied changes in government leadership. Elections create a clear path of succession, which in turn facilitates the peaceful transfer of power. An election run by the military or marred by violence is neither free nor fair. Americans saw firsthand the dangers of a militarized election in 1876, when a gubernatorial election in South Carolina devolved into chaos as troops barricaded the state house. Just two years later, Congress passed the Posse Comitatus Act, which bars the federal military from conducting law enforcement activities, except where authorized by the Constitution or a separate act of Congress. No president has ordered federal troops to an American polling place since.
Troops At The Polls: A Historical Retrospective
On July 4, 1776, when the Founding Fathers published the Declaration of Independence, they included a list of grievances against King George III. Of the 27 grievances listed, at least two are directly concerned with the relationship between civilian and military power. King George III, the Founders charged, had “affected to render the Military independent of and superior to the Civil power.” He had also “kept among us, in times of peace, Standing Armies without the Consent of our legislatures.” These concerns shaped the U.S. Constitution’s treatment of military power, leading to the creation of Article I, Section 8, Clause 12, which gives Congress, but not the president, the power to “raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years,” requiring each new Congress to vote on the army’s funding anew. Likewise, the Militia Clauses (Clauses 15 and 16) squarely place with Congress the power to “call forth the Militia” to execute “the Laws of the Union, suppress Insurrections and repel invasions” as well as “organizing, arming, and disciplining, the Militia” to the extent that they “may be employed in the Service of the United States”—giving Congress the power to determine when and how the militia are called forth, not the president.
The Founders included this provision because they knew well the dangers of constant military occupation. Just six years before the Declaration of Independence was published, British troops opened fire on a crowd of American colonists in Massachusetts, killing several civilians. This event, now known as the Boston Massacre, made clear the threat that a standing army could pose to life and liberty. James Madison went so far as to say “a standing army is one of the greatest mischiefs that can possibly happen.” By enshrining a restriction on standing armies in the Constitution, the Founders set the philosophical stage for limiting military involvement in elections, but many current federal laws on the topic actually stem from the Reconstruction era following the U.S. Civil War.
In response to violence toward Black voters in the years following the Civil War, Congress passed the Enforcement Acts, which briefly gave the president the power to supervise elections, deploy the U.S. Army to enforce voting rights, and prosecute those who were accused of violently suppressing civil rights. The Acts were intended to safeguard Black voters, and Black southerners voted in numbers they would not reach again for nearly a century. But that same authority also placed the Army at the center of contested elections, ultimately helping to exacerbate the disastrous South Carolina disputed election mentioned above. The incumbent governor ordered troops to barricade the state house in order to prevent his competitor from taking office. Members of the Democratic Party were barred from entry, and created a dueling state house nearby. The standoff between the two political parties, and the soldiers supporting the Republicans, lasted for four months, leading to mass confusion as to which government truly ran the state.
Just two years later, Congress, still wary of another militarized election, passed the Posse Comitatus Act of 1878 which prohibits using “any part of the Army of the United States, as a posse comitatus, or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized.” The current iteration of the Posse Comitatus Act expands that prohibition to apply to every branch of the military except the Coast Guard. The Posse Comitatus Act established the intellectual and legal foundation upon which many current prohibitions on election-related and other domestic military deployments are based.
Current Laws Prohibiting Military Interference With U.S. Elections
Today, there is an overlapping set of federal statutes and regulations that sharply restrict troops from interfering with or undermining an election. When evaluating whether a servicemember’s presence or conduct at or near a polling site violates the law, it is first necessary to identify:
- The component: what agency or branch of the government the individual is representing (i.e., is this an active-duty soldier or marine, a National Guardsman in hybrid status, etc.)?
- The location: where they are (e.g., inside of a polling site, within 100 yards of a ballot box, etc.)?
- The activity – what they are doing (e.g., talking to voters, impeding entry to a polling site, etc.)?
The laws listed below overlap, but they differ in whom they reach and what they prohibit.
Federal Military
Federal troops can only visit polling sites when casting their personal ballot or repelling “armed enemies of the United States.” There are no other exceptions. If a military officer or other federal official (civilian or military) orders, brings, keeps, or controls troops or armed men at a polling site and neither exception apply, that individual has committed a federal crime under 18 U.S.C. § 592, punishable by a fine or up to five years in prison. If convicted, they are also permanently disqualified from holding “any office of honor, profit, or trust under the United States.”
Under 18 U.S.C. §593, which originated in the same 1865 statute, soldiers are prohibited from engaging in any of the following activities:
- Setting new qualifications for voters (e.g., claiming “proof of citizenship is required to vote at this polling site”);
- Preventing or attempting to prevent someone from voting via threats, force, intimidation, or advice;
- Compelling or attempting to compel an election officer to accept an illegal vote;
- Attempting to impose election regulations that differ from prescribed law (e.g., “If you vote in the presidential election, you cannot also vote in the senate election”); and
- Interfering with an election officer’s duties (e.g., seizing or damaging election equipment/refusing to let an election official transport ballots to be counted).
As with Section 592, this is a criminal prohibition with a potential punishment of a fine or up to five years in prison. Violators are also disqualified from working for the federal government.
Another key prohibition is 18 U.S.C. § 594, though this is not a military-specific statute and would also apply to federal law enforcement. Section 594 states that anyone who intimidates, threatens, coerces, or attempts to intimidate, threaten, or coerce someone in an effort to interfere with their vote in a federal election can be fined and/or imprisoned for up to one year. Interference with the right to vote could include seizing someone’s ballot, preventing a voter from entering a polling site, or attempting to change or influence their vote.
Notably, there are civil analogues to several of the above statutes in the Voting Rights Act. 52 U.S.C. § 10307(b) provides that “no person, whether acting under color of law or otherwise” can intimidate, threaten, or coerce any person for voting or attempting to vote. Unlike the criminal law provisions, §10307(b) does not require proof of intent to intimidate; as the Brennan Center has argued, the mere presence of the military at a polling site should be considered unlawfully coercive under this provision. Under a separate statute, 52 U.S.C. § 10101, individuals who are prevented from exercising their right to vote can report the violation to the Attorney General, who is then authorized to file a civil action for preventive relief, such as a temporary restraining order, though the current Attorney General is unlikely to respond in such a way.
The Posse Comitatus Act is another major bar to military interference with elections. The Posse Comitatus Act bans federal troops from conducting law enforcement activities, which would typically include investigating claims of voter fraud. The president therefore could not deploy troops in order to “prevent voter fraud” because that, by its very terms, is a law enforcement activity.
There are separate statutes that satisfy the Posse Comitatus Act’s requirement for congressional authorization, the most significant being the Insurrection Act (10 U.S.C. § 251-255), which does allow troops to conduct law enforcement activities in very narrow circumstances (e.g., in the case of an insurrection). Theoretically, the president could invoke the Insurrection Act in the case of significant, violent, sustained protests that make it impracticable to enforce the laws, and attempt to deploy troops to conduct law enforcement activities. But even under an invocation of the Insurrection Act, Sections 592 and 593 of 18 U.S.C. would still apply separate prohibitions, ones that carry their own, far narrower exception, only allowing troops at an election site when necessary to repel armed enemies of the United States.
In practice, this means that the president could invoke the Insurrection Act but any officer or soldier who orders troops to the polls could be guilty of a federal crime. Despite Trump v. United States’ ruling that a former president cannot be held criminally liable for their conduct in office, every officer beneath him who directs troops to the polls could still face up to five years of imprisonment and never be allowed to work in the federal government again. If tried and convicted by a military court, the soldier in question could be sentenced to confinement, given a bad-conduct or dishonorable discharge (or, for officers, a dismissal), loss of pay and allowances, and (for enlisted personnel) reduction in rank.
Finally, in recent years, several states have passed legislation allowing federal officers to be sued under state law in state court for violating constitutional rights. These statutes are known as “converse § 1983 legislation,” as they are based upon 42 U.S.C. § 1983, which allows state and local officials to be sued for violating federal constitutional rights. There is no existing federal law which imposes the same liability on federal officers, so several states have started passing converse §1983 legislation to try and close that gap. It is worthwhile to note that while qualified immunity often results in the dismissal of federal § 1983 claims, some of these new states’ laws bar qualified immunity in these suits, meaning that troops cannot use that defense to dismiss the lawsuit and could be held liable for significant monetary damages. It is as yet untested whether a servicemember could claim immunity under the Supremacy Clause—which shields federal officers acting within the scope of their authority from certain state-law liability—and would likely result in drawn-out litigation and complex questions of federal authority winding their way to the Supreme Court over a period of several years.
National Guard
The above laws would apply for any federalized National Guard, which would be under the command and control of the president and federal government. The prohibitions for National Guard personnel in state active-duty status, however, are far less rigid than those for federal troops and agents. In that status, Guardsmen are typically allowed to go wherever the governor sends them, and the governor’s authority is bounded by state law – which varies. Many states prohibit carrying weapons at or near polling places, though those laws do not uniformly apply to the Guard. Guardsmen have also occasionally served as poll workers, as they did in several states during the COVID-19 pandemic, wearing civilian clothes. Additionally, if troops are operating under hybrid duty status or Title 32 status (i.e., they are supporting an operation for the federal government but are technically under the control of a governor) they are not prohibited from engaging in law enforcement activities by the Posse Comitatus Act.
Though that does not leave Title 32 deployments unconstrained. DOD Directive 3025.18 states that “National Guard personnel in Title 32 status will not conduct operations at polling places and must strictly refrain from activities similar to those prohibited by sections 592-594.” Importantly, the directive does not clarify whether troops could be prosecuted under 592 when in Title 32 status; it merely poses an internal policy constraint on servicemembers. The policy constraint is important, however, because hybrid duty guardspeople are technically state, not federal officers, and thus may not be covered by 592.
It is possible that 18 U.S.C. § 242 could apply to National Guard personnel in state active-duty status, but several caveats make successful prosecutions unlikely. Section 242 prohibits the willful “deprivation of any rights, privilege, or immunities” under the “color of any law, statute, ordinance, regulation, or custom.” The color of law requirement is likely met if the Guardsmen are in uniform, carrying military equipment, or asserting military authority to engage in the unlawful act. However, the willfulness element requires showing specific intent and knowledge that the act was unlawful under Screws v. U.S. (1945). According to the Justice Department’s Civil Rights Division, “Mistake, fear, misperception, or even poor judgment does not constitute willful conduct prosecutable under the statute.” For example, the judge trying Guardsmen following the Kent State massacre acquitted them of all charges based on a lack of willful intent before the matter reached the jury.
Military Law
Beyond generally applicable federal laws, there are several provisions of the Uniform Code of Military Justice (UCMJ) and Department of Defense (DoD) policy directives that prohibit troops from interfering with elections. Under DoD Directive 1344.10, which governs political activity by members of the armed forces, troops are barred from engaging in partisan political activity while on duty or in uniform. This directive is enforceable against soldiers due to Article 92 of the UCMJ, which states that
Any person subject to this chapter who (1) violates or fails to obey any lawful general order or regulation; (2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or (3) is derelict in the performance of his duties; shall be punished as a court-martial may direct.
Together with Articles 90 and 91, Article 92 also creates the “duty to disobey” framework articulated in United States v. Calley, which affords soldiers with a defense if they refuse to obey manifestly illegal orders. Under the Manual for Courts Martial (R.C.M. 916 (d)), following orders is a defense unless the accused knew the orders were unlawful or “a person of ordinary sense and understanding would have known the order to be unlawful.” An order to commit a federal crime is the paradigm of a manifestly illegal order. To give an example, if a soldier were ordered to seize voting machines, that is obviously illegal under both the Posse Comitatus Act and §§ 592 and 593, meaning that the soldier has a duty to disobey the order. A soldier who obeys a manifestly illegal order can be prosecuted under the UCMJ. Importantly, under Article 81, soldiers can also be court martialed for conspiracy to violate the UCMJ, meaning that troops could be charged with a crime even if the plan is never carried out; a conspiracy requires only an agreement and an overt act in furtherance of it, such as arranging transportation to a polling site.
Soldiers could also face prosecution under Article 134, the UCMJ’s General Article. Clause 1 of Article 134 states that a soldier may face prosecution if their behavior results in a “reasonably direct and palpable” prejudice to good order and discipline. In the context of an election, this could involve a servicemember leveraging their military authority to engage in partisan activities or degrading a unit’s mission-readiness by abandoning the military’s apolitical traditions. For instance, if a soldier were to coordinate an unauthorized movement of troops to “monitor polling sites,” such conduct would directly subvert the chain of command and erode internal unit cohesion.
Clause 2 of Article 134 addresses the military’s external reputation, barring conduct that brings “discredit upon the armed forces” (MCM, Part IV, Para. 91.c.(3)). The test is whether the conduct at issue “injure[s] the reputation of” the armed services. A servicemember standing in uniform at a polling site or tabulation center to intimidate voters is a paradigm of conduct that violates public trust and the foundational principle of military subordination to civilian authority in a way any observer would recognize.
Clause 3, which sweeps in “Crimes and Offenses Not Capital,” allows the military to prosecute soldiers for violating federal criminal laws, including §§ 592 and 593. Crucially, the prosecution must prove not only that the soldier broke federal election law, but that the violation was, under the circumstances, related to their military service. Soldiers could also be prosecuted for violating state criminal laws under the Assimilative Crimes Act, which holds that state criminal laws apply on federal lands – as long as there is not a different federal law prohibiting that conduct. While sites of election interference are typically not on federal property as elections are state-run, this could be important should the election interference, or even the conspiracy to commit election interference occur on a military base or federal facility, or if ballots are seized and stored on a military base.
The Pardon Power
Though the president possesses the power to pardon a felony, soldiers may still face legal repercussions that flow from the initial conviction even if pardoned. First, several statutes (such as §§ 592 and 593) prohibit the convicted party from ever holding an office of public trust in the future. It is unclear whether a pardon automatically erases a statutory disqualification, meaning that even if pardoned, an officer may never again be able to work for the federal government.
In the civil context, the president can issue a pardon but the pardon does nothing to mitigate the underlying monetary judgment. A soldier who was ordered to pay $100,000 for violating § 10307(b) still has to pay that money, the pardon does not impact the judgment, and the federal government may not pay on their behalf.
Though pardons do apply to convictions in military courts, a pardon does not reinstate someone’s military rank and benefits. Per the Supreme Court in Knote v. United States (1877), a pardon does not reach money already paid into the Treasury; so, if forfeited pension and benefit money has been returned to the U.S. Treasury, the servicemember in question cannot get their benefits back. Even when pardoned, soldiers are also not automatically returned to “honorable discharge” status; the soldier will remain dishonorably discharged unless they petition the Board for Correction of Military Records, and the process is not automatic. The Board could review the case and refuse to change the discharge status. Likewise, a president cannot pardon state crimes in cases in which Supremacy Clause immunity does not preclude prosecution, but as yet, the issues around prosecuting federal servicemembers for violating state laws are largely open questions.
Limits of Presidential Authority
Having set forth the statutory constructs that prohibit troops at the polls, we turn now to rebutting the arguments that a president may use to justify a potential election-related deployment. Specifically, the president may rely on a fringe legal theory to claim vast, anti-constitutional powers under the Take Care clause. Applying this theory would allow the president to disregard any federal law that limits their core executive powers (i.e., those spelled out in the Constitution). As the president is “Commander in Chief,” the administration may try to claim that there are no permissible limits on the President’s authority to deploy troops but that argument flagrantly disregards 1) constitutional text, 2) constitutional history, and 3) centuries of Supreme Court precedent.
Under the Constitution’s text, though the president is the commander in chief, he does not have total authority over the military. Rather, it is Congress that possesses the power to declare war, raise and support armies, govern and regulate the military, and provide for calling forth the militia—ancestor of today’s National Guard. Further, the Constitution specifically vests all election-related authority in the states and Congress, not the president. Trump thus cannot claim sweeping authority to deploy troops during elections and assert that, for example, §592 unconstitutionally limits his inherent military power. Nor are there statutes Trump could claim to need troops to enforce in this context.
The Founders knew well the dangers of a president with supreme military authority having witnessed King George III using the military to achieve political aims. To avoid this scenario, the Commander-in-Chief was made a civil officer, not a military one, making civil supremacy over the military of paramount principle. This principle is so core to the Constitution that former President Dwight Eisenhower resigned his military commission five days before announcing that he would seek the presidency.
Indeed, there is a Supreme Court case that sets forth the tiers of presidential power, where it is at its apex and at its low point. Youngstown Sheet and Tube Co. v. Sawyer provides the framework still used today to decide if a president has exceeded their constitutional powers. Under Youngstown, when a president acts in direct violation of a congressional statute (say, by deploying troops to the polls in violation of §592), their powers are at their lowest. When at its lowest ebb, a president “can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.” Under this application, it is likely that the President can only overcome Youngstown if he is able to show that the constitution vests exclusive authority over the military and elections in the president. As noted above, the Constitution explicitly grants military and election powers to Congress, therefore the president would be acting unconstitutionally by deploying troops to the polls. To quote from Justice Robert Jackson’s concurring opinion in Youngstown, “the Constitution did not contemplate that the title of Commander-in-Chief of the Army and Navy will constitute him also Commander-in-Chief of the country, its industries, and its inhabitants.”
Conclusion
Federal law and the Constitution are clear: elections are a civilian, not a military, activity. Congress has preserved a single exception, permitting troops at an election site solely to repel an armed attack on the United States. Otherwise, the military sphere and the civilian sphere are distinct, they operate differently and separately to ensure that the inherent might of the military does not eclipse civilian power. This fundamental principle is core to both the Constitution and the Declaration of Independence, meaning that efforts to involve troops in elections are as unconstitutional as they are illegal. Importantly, though the law and history are clear, stealthily worded but unlawful election orders from the president can often seem innocuous or even advantageous when first issued. But for the servicemember who chooses to obey it, the cost may be severe, including prosecution, court-martial, and consequences that no pardon may fully be able to erase. Understanding that the law does not permit troops at the polls is critical precisely because a servicemember’s own exposure depends on recognizing an unlawful order when it presents itself.
Author’s Note: The authors would like to thank Hayley Durudogan for her contributions to this article.
