Many in and out of government are concerned that President Donald Trump might call out U.S. military forces on Nov. 3 to intimidate voters, to stop voting or the tabulation of votes that he regards as fraudulent, or to quell violence sparked by the election process.
If he did, the result would be unprecedented chaos — maybe making it impossible to know who the American people actually elected as their next president. With emotions running high in our deeply divided country, the damage to democratic self-government would be incalculable.
Pentagon leaders are taking the possibility very seriously. They reportedly are considering responses that range from resignation in protest to refusing to follow the president’s orders.
We should take it seriously, too.
The president continues to claim, without evidence, that mail-in voting will be fraudulent, and that counting those votes could delay the announcement of a winner for days or even weeks. “Mail ballots, they cheat,” he says.
Trump also refuses to agree to a peaceful transfer of power if he loses, asserting instead that the only way former Vice President Joe Biden could win is by cheating.
“Get rid of the ballots,” he says, “and you’ll have a very peaceful — there won’t be a transfer, frankly. There will be a continuation.”
In the first presidential debate, Trump went even further. Asked by the moderator whether he would tell his supporters to “take to the streets” if the election were not decided in his favor, he signaled a violent, far-right hate group, the Proud Boys, to “stand back and stand by.”
Trump has thus laid the groundwork for deploying U.S. military forces in American cities if the election doesn’t go his way — either on the pretext of enforcing election laws or to quell violent protests that he himself encourages.
U.S. military forces were last involved in an election in 1876, in the hotly contested presidential race between Rutherford B. Hayes and Samuel Tilden. Federal troops were sent to polling places across the Reconstruction-era South, some say to protect newly freed slaves seeking to cast their first ballots, others say to intimidate voters.
Two years later, Congress passed the Posse Comitatus Act, which generally prohibits the use of the military to enforce the law, including laws related to voting. The 1807 Insurrection Act, however, allows the president to call out federal troops (or federalized National Guard forces) if he decides that a rebellion, domestic violence or conspiracy “impedes the course of justice.”
But despite such broad language, the president may exercise this power legally only as a last resort — when civilian government has broken down and local law enforcement officials are overwhelmed.
Trump has encouraged his supporters to “go into the polls to watch very carefully,” suggesting possible efforts to disrupt the voting process. Yet even in the face of such disruption there is no reason to suspect that state and local election officials will be unable to conduct a free and fair election on Nov. 3. Federal troops are not needed to ensure that every legal voter can cast a ballot, and that every ballot is counted.
The chairman of the Joint Chiefs of Staff, Gen. Mark Milley, told House lawmakers recently, “In the event of a dispute over some aspect of the elections, by law, U.S. courts and the U.S. Congress are required to resolve any disputes, not the U.S. military. I foresee no role for the U.S. armed forces in this process.”
Still, if violence prompted by Trump’s reckless rhetoric erupts in the wake of a disputed election, the president might send soldiers into the streets.
On June 1, he used National Guard troops from 11 states to clear peaceful protestors from Lafayette Square in Washington. And he threatened to deploy federal military forces to shut down nationwide protests after the murder of George Floyd.
However, no rebellion, domestic violence or conspiracy prevented state and local law enforcement from keeping or restoring the peace in the wake of these protests. The police seem equally capable of handling any unrest growing out of the coming election. In other words, any effort by President Trump to deploy troops would be entirely unjustified and unlawful. Still, he has ignored the law and defied familiar norms of civilized behavior many times before, and he could do it again.
Talking about it now may make such lawlessness less likely by highlighting the danger. But the best way to avoid such a calamity is probably to deliver a vote for Biden and his running mate, Sen. Kamala Harris, so lopsided that military leaders would have no doubt about their duty to uphold the U.S. Constitution and laws of the United States.
Several days ago, Gen. Milley made this duty clear when he urged U.S. military personnel to “keep the Constitution close to your heart.” In voting for the next president, we, no less than our top military leader, must keep the Constitution close to our hearts.
Stephen Dycus, of Strafford, is professor emeritus at Vermont Law School and co-author of Soldiers on the Home Front: The Domestic Role of the American Military.