Could the Military Intervene in a Disputed Election?
When you hear the term “banana republic," what comes to mind?
Chances are, part of what comes to mind are images of a ragtag country run by a ruthless dictator who uses the military to maintain his hold on power.
If you do some Googling, though, you'll see lots of recent “banana republic" references to a seemingly unusual nation: the United States. In particular, these have popped up in the wake of President Trump's threat, back in June, that he might call upon federal troops to quell protests and riots that erupted following the death of George Floyd at the hands of Minneapolis police.
But, more recently, these Google references have taken a different form. Now they're referring to the coming General Election and the prospect that the military might – repeat, might – become involved in some capacity for the first time in the nation's election history.
Of course, nobody is seriously suggesting that we're turning into a banana republic. But the military? In our very own cities and streets? You get the picture.
How Bad Would Things Have to Get?
On several occasions, President Trump has mentioned the possibility of calling upon the military to impose order if violence should erupt on, or after, Election Day. Also, Democratic presidential nominee Joseph R. Biden has said that if Trump refuses to accept defeat, the military may have a responsibility to physically remove him from the White House.
Does the military have any obligation to do either?
Technically, it's important to note that the military's foremost commitment is to the U.S. Constitution, not necessarily the president in his role as commander-in-chief.
But because the partisan divide is so great in this election, and the rhetoric so heated, the question of military involvement has arisen.
As a result, military leaders have had to respond. And they are doing their best to reassure us.
Gen. Mark Milley, the chairman of the Joint Chiefs of Staff, has said repeatedly that the military has no role in carrying out the election process or resolving election disputes. Most recently, on Oct. 12, Milley said there is “zero" chance of military involvement. “We have a very long, 240-year tradition of an apolitical military that does not get involved in domestic politics," he said.
The next day, though, Secretary of Defense Mark Esper was less convincing than Milley when he refused to assure two Democratic members of Congress that he would not rule out military involvement. He did offer a pledge that the military would act “in accordance with the Constitution and the law," and left it there.
But What If?
The task of maintaining civil order is generally left to civilian police. If there are election disturbances, civilian police would be the first to respond.
But what if conflicts become really nasty?
This summer we may have seen what it could look like. As the protests spread from Minneapolis to many other cities, several state governors called upon the National Guard to provide support for local and state police. At its peak, more than 40,000 National Guard reservists were activated to deal with protests in 23 states.
National Guard units, which are reserve branches of the U.S. military, are in every state and are controlled by governors. Members can be activated to support overseas military missions, but their focus tends to be on domestic needs, such providing aid during natural catastrophes. The president has the power to federalize the Guard so that they can be transferred out of their home states if needed.
Although Milley says there's zero chance of military involvement in the election, the president does have authority under the Insurrection Act of 1807 to send active-duty military members to states that are unable to put down an insurrection or are defying federal law. This is the law that Trump threatened to use in June when protests and riots were breaking out. Esper recommended against it as being an extreme step, and Trump acceded.
It's important to keep in mind, however, that the U.S. military has been called to put down disturbances on American soil before. In the 1950s and '60s, presidents sent federal troops to southern states to enforce school desegregation, and in 1992 federal troops were sent to Los Angeles when California Governor Pete Wilson requested help during riots there.
What About Polling Places?
Trump has encouraged his supporters to be an active presence at polling sites. The prospect of voter intimidation has prompted some governors, like New York's Andrew Cuomo, to consider using National Guard troops for security at polling sites. Some governors already used the Guard during the primary elections, although this was more to assist poll personnel by filling in for poll workers who were absent (in plain clothes), or by cleaning and directing traffic.
But some see the presence of uniformed National Guardsmen serving as security at polling sites as problematic. Michele Flournoy, a former under secretary of defense for policy at the Pentagon (and leading candidate to become the first female defense secretary if Biden wins) argues that the Guard should only be used if police are overwhelmed.
She told the McClatchy D.C. news agency: “I think going right to the National Guard on voting day (is) not a healthy thing for our democracy."
But it could be necessary.
- Can the Military Refuse a Presidential Order to Occupy American Streets? (FindLaw's Law and Daily Life)
- Voter Intimidation: What It Is and What to Do (FindLaw's Learn About the Law)
- What Is Electoral and Voter Fraud? (FindLaw's Learn About the Law)
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