With the mid-term elections approaching, questions have arisen over whether the Trump administration might attempt to station federal troops at polling places. As the Brennan Center and many others have pointed out, this would be clearly illegal: Section 592 of Title 18 of the United States Code criminalizes deploying federal troops or armed federal law enforcement agents to any polling place, and multiple other federal criminal and civil laws bar military interference in an election. Such laws buttress the Posse Comitatus Act, which generally prohibits federal military participation in civilian law enforcement except where Congress has expressly authorized it.
These laws, most of which have been in force for more than 150 years, unmistakably convey Congress’s intent to bar any kind of military interference in American elections. Even so, in 1968, the Office of Legal Counsel asserted in a short, conclusory memo that Section 592’s prohibition on troops at the polls does not apply if the president has invoked the Insurrection Act. The Insurrection Act is the most important statutory exception to the Posse Comitatus Act, allowing the president to use federal military forces to execute the law in certain emergency situations.
The OLC memo, which was prepared during the chaotic months leading up to the 1968 presidential election, contains no meaningful legal analysis. Instead, its authors point only to a forthcoming opinion that would lay out OLC’s arguments and evidence in detail. Yet if that larger memo was ever produced, it has never been made public or even been referenced in any publicly available OLC documents.
The memo is wrong on many counts. To start, it disregards basic and well-established rules of statutory interpretation. When two statutes come into conflict, the later-in-time statute normally controls, and the specific normally displaces the general. The Insurrection Act was last substantively amended in 1874, but Congress revised Section 592 in 1909, removing its exception permitting troops to “keep peace at the polls.” Section 592 is also an election-specific restriction, while the Insurrection Act is a more general emergency authority. These factors indicate that Section 592 serves as a narrow limit on domestic military deployment, rather than the Insurrection Act permitting an intrusion on voting rights.
The OLC memo, however, simply sidesteps the conflict between Section 592 and a president’s use of the Insurrection Act to deploy troops to the polls. It does so by claiming that Section 592 does not apply when the president invokes the Insurrection Act because the “legislative history [of Section 592] shows, in effect, that the prohibition[]… [was] primarily intended” to restrain “subordinate military or civil officers” and not to “restrict the power of the president.” In two recent pieces published in Lawfare (available here and here), Natalie Orpett, Molly Roberts, and Loren Voss explain in detail that OLC’s characterization of the legislative history behind Section 592 is exactly backwards.
As Orpett, Roberts, and Voss show, Section 592’s legislative history shows that Congress intended it as a direct response to actions taken by high-level administration officials acting under the supervision of the president. What is now Section 592 was enacted in early 1865, during the final months of the Civil War, following the systematic, presidentially-directed use of federal military forces to interfere in elections in the border states—Missouri, Kentucky, Maryland, and Delaware—throughout the four-year conflict. The bill’s principal author and sponsor, Senator Lazarus Powell of Kentucky, even described it as a direct constraint on the president.
The historical circumstances that prompted Congress to enact Section 592 reinforce this reading. Missouri, Kentucky, Maryland, and Delaware were the four slave states that stayed in the Union during the Civil War but nonetheless contained significant pro-Confederate and/or anti-war populations. These four states’ ties to the Union were tenuous, and the Lincoln administration took drastic measures to ensure it did not lose control of them. In Maryland, federal troops stationed at polling places regularly screened voters (at a time when ballots were color-coded by party affiliation) and rejected those likely to vote for anti-war or pro-Confederate candidates. In Kentucky and Delaware, troops conducted similar screenings at polling locations, turning away voters who held ballots of opposition parties. The military also arrested many opposition candidates in Kentucky, placing some in military confinement until after the election was over.
To justify these and other wartime actions, the Lincoln administration relied extensively on claims of emergency authority. Missouri was placed under martial law for nearly the entire conflict, from August 1861 through March 1865. In a proclamation issued on September 24, 1862 (and not rescinded until August 1866), Lincoln additionally made “all rebels and insurgents, their aiders and abettors, within the United States, and all persons discouraging volunteer enlistments, resisting militia draft or guilty of any disloyal practice affording aid and comfort to rebels against the authority of the United States” subject to martial law. Kentucky, too, was placed under martial law between July 1864 and October 1865—a period that notably encompassed the 1864 presidential election. What’s more, insofar as Confederate military forces, raiders, and guerrillas were operating in or threatening these border states, military operations within them also fell within the scope of Lincoln’s April 15, 1861 invocation of the Insurrection Act.
When Congress enacted Section 592, it was aware of both the military’s actions in the border states and the Lincoln administration’s relevant invocations of emergency powers. Congress also knew that the bulk of the candidates and voters the military suppressed in these states either opposed the war effort or actively sympathized with the Confederacy. Yet Congress determined that, even in these extreme circumstances, the president had gone too far.
Section 592 was thus a direct congressional repudiation of a president’s exercise of emergency authority in the middle of the most significant crisis this country has ever faced. Understood in its proper context, Section 592 stands for the proposition that placing troops at the polls is so dangerous and unacceptable that it is forbidden even in the midst of a war on American soil, and even in areas where the president has invoked emergency powers in order to prosecute that war. The statute’s text permits troops at the polls only when a polling location has become a literal field of battle, and military force is “necessary to repel armed enemies of the United States.”
Apart from this single, narrow exception—which is necessary both as a practical matter and in recognition of the president’s inherent constitutional authority to repel sudden armed attacks—there is no emergency override for Section 592’s prohibition on placing troops at the polls. On the contrary, the law was designed precisely for emergencies, to ensure that future security crises would not lead to crises for American democracy.
