The first piece in this series reviewed the U.S. laws prohibiting election-related domestic deployments. To understand how these laws work in a real-life election scenario, it is worth outlining:
- What troops could be ordered to do at each stage of the elections process, and
- What the repercussions of such orders could be.
Importantly, there are a variety of orders which could be issued that, while not blatantly illegal per se, would severely disrupt the mechanics of elections and undermine the country’s democratic principles. Here, we outline the election process and important red lines for troops to be aware of in a deployment situation. Above all, there is one rule that all members of the armed forces must remember: in a democracy, any domestic deployment happening on or around an election is suspect.
Examples of Illegal or Anti-Democratic Orders
“The President has declared a national emergency, protect this polling site.”
As noted previously in this series, 18 U.S.C. 592 bars an officer from keeping “troops or armed men at any place where a general or special election is held” unless such force is “necessary to repel armed enemies of the United States.” A declared national emergency to protect polling sites would most likely not satisfy this standard. National emergencies trigger a defined set of laws, not unencumbered presidential authority. An emergency declaration from the president does not override constitutional dictates exclusively giving states and Congress the authority to administer elections nor would it override the Supreme Court’s decision in Youngstown Sheet and Tube Co. v. Sawyer (1952) that prohibited the governmental takeover or seizure of critical infrastructure without congressional approval. As a result, an officer who issues such an order would likely be subject to all the penalties listed in § 592, including up to five years in prison, in addition to potential court-martial consequences such as dishonorable discharge. Protecting a polling site is also likely a violation of the Posse Comitatus Act since “protecting” is traditionally a law enforcement function, not one permitted to be undertaken by armed military personnel. Invoking the Insurrection Act might address the Posse Comitatus Act problem, but it would not override Section 592. Further, polling sites are state, not federal property, which means that troops’ presence cannot be justified by the “protecting federal property” argument invoked during the 2025 Los Angeles National Guard deployment.
“Seize these voting machines, they have been hacked by [foreign power].”
This is another example of a likely illegal order. Though the “foreign power” language may seem to authorize legitimate troop involvement, Section 593 bars any member of the armed forces from interfering “in any manner with an election officer’s discharge of his duties,” and it contains no national security exception. Also, voting machines are owned or leased by state election authorities, meaning that if the federal government seizes the machines, it is taking a state’s property. Under the Tenth Amendment’s anti-commandeering doctrine, the federal government cannot force state officials to hand over, operate, or certify machines in a certain way, and though there is no case law directly on point, would likely have difficulty physically seizing the machines under this theory. An attempted seizure under eminent domain would immediately face court challenges. If the military tried to seize voting machines under a criminal law theory, it would also likely run afoul of constitutional and statutory prohibitions on the military acting in a law enforcement capacity. Though phrased in a manner that may appear legal or may seem to have a compelling purpose, this order would most likely be illegal and members of the U.S. military would likely have a duty to disobey. Seizing voting machines would break their legal chain of custody, which could make it more challenging to certify election results. Further, Americans could view the requisitioning of voting machines as a sign of a military takeover, which may cause unrest.
“There is a protest on [Highway name] near [central location], block off the street until law enforcement can intervene.”
Though ostensibly not directly connected to the election, this order would also be anti-democratic and most likely illegal. If the military blocks off a major road to a polling site, leading to massive backups and potentially hours of traffic, many Americans may simply choose not to vote. Making voting more inconvenient could suppress voter turnout, and blocking access to polling places does exactly that. Absent an invocation of the Insurrection Act, this order would also likely be illegal under the Posse Comitatus Act, which bars using federal troops to “execute the laws” except where the Constitution or an Act of Congress expressly authorizes it. Troops controlling who may travel where, in response to a protest, is a classic law enforcement activity – which is to say, executing the law. That civilian law enforcement officers are on the way does not change the analysis either. The analysis centers on the troops’ conduct, which here would constitute enforcing the law. A highway closure in an area with many voters from one political party or demographic could also suppress that population’s vote by preventing them from casting their ballot, undermining a free and fair election.
“Transport these paper ballots from [location A] to [location B].”
Though seemingly innocuous, this is also likely an illegal and anti-democratic order. First, picking up ballots from polling sites would be a straightforward violation of §§ 592 and 593 – troops cannot be ordered to polling places to assist with election administration. Also, moving ballots from one location to another places the ballots at risk of manipulation or damage. As outlined above in the voting machine scenario, preserving chain of custody is paramount for managing ballots and voting equipment. Even if the ballots are entirely unchanged while in military custody, the fact that they left state control could lead voters to question the election result.
“Deploy to [Swing County] in October in response to civilian unrest.”
Any federal deployment to respond to civilian unrest should be consistent with statutory exceptions to Posse Comitatus, such as an invocation of the Insurrection Act. Though this may not violate any specific legal prohibitions, all election-year domestic deployment orders should be treated with extreme caution. Though a pre-November order to deploy to a given county may seem unrelated to an election, the presence of armed soldiers in a state or even a smaller voting jurisdiction could significantly depress voter turnout in a primary or in early voting. Americans, for the most part, are not accustomed to being in the presence of armed federal forces as they go about their day-to-day lives, and given recent tragedies, such as the January 2026 killings of Renée Good and Alex Pretti by federal officials in Minnesota, it is possible that some voters would be too frightened or intimidated to vote if the military were stationed, for example, near voting jurisdiction offices, registration locations, or polling places. Such fear could significantly impact voter registration, early voter turnout, and eventual results. Certain eligible Americans may simply decide not to register or vote, feeling that the value of their vote does not outweigh the potential harms of interacting with armed federal troops.
“Stand guard as votes are being counted to prevent civilian unrest.”
It is not the role of the federal military to guard state polling sites or vote-counting sites. An order to do so would likely violate Section 592 as well as § 594, which bars voter intimidation, and its civil equivalent 52 U.S.C. § 10307(b). This order not only appears to violate the law but would also call the election results into question and suggest the appearance of a military takeover. Troops must remember that it does not matter whether an order is couched in seemingly positive “guarding,” “protecting,” or “shielding” language — there are still no “general national security” exceptions to any of the above laws. The only exception under § 592 is if armed enemies are physically attacking the United States and, whatever the outer bound of that phrase, it is most likely not satisfied by protest, civil unrest, general security concerns, foreign adversary provocation or misinformation, or any justification other than physical warfare conducted with weapons. Obeying the above order could lead to prison time, fines, losing access to military benefits, and other consequences related to courts-martial.
“The election may have been stolen by [foreign power], do not allow newly elected members of Congress into the Capitol building.”
Even if there is credible evidence of election fraud or foreign interference, it is not the job of the federal military to intervene, and certainly not to prevent members of Congress from being formally seated. Under the Constitution, it is entirely the role of Congress to seat its own members and the executive branch and military have no role in this decision-making process. Section 593 bars members of the military from interfering with an election officer’s discharge of their duties. Preventing members of Congress from being seated could be argued to amount to interfering with an election. Importantly, the House of Representatives is not a continuing body, meaning after January 3, the only official member is the Clerk of the House, until the newly elected members are sworn in. Previously elected members cannot hold their seats after that date, meaning that if no one is sworn in, there is quite simply no House of Representatives. With no House, there is no telling what confusion would follow.
Further, members of the military involved in enforcing this order could face criminal charges under 18 U.S.C. § 2383, which states that
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
Preventing the certification of a lawful election and the seating of members could constitute an insurrection under this statute.
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As the above hypotheticals illustrate, a president could issue a range of seemingly unobjectionable orders that undermine the democratic process and run afoul of federal law. Voters may stay home if they fear military presence. Ballots may no longer be trusted if a machine’s chain of custody is broken. Military deployments elsewhere in a city might prevent voters from reaching their polling site in time. There is little to no safe or democratic way for the military to be involved with the elections process. And, importantly, as the next article in the series explains, the costs of doing so would not fall on the election alone: an election-related deployment would do lasting damage to the military itself.
Authors’ Note: The authors would like to thank Hayley Durudogan for her contributions to this article.
