According to the US Constitution, the military has the role of defense against external enemies, while public order is ensured by the civilian police. Only in extreme cases can the Insurrection Law be invoked, a law of 1807, so that the active military takes over the role of the local police or the National Guard at the level of one of the states.

The prospect of an armed mobilization or the National Guard at polling stations or following civil unrest after the election was discussed by governors and military leaders. A context for this was created by US President Donald Trump who claimed that voting by mail generates electoral fraud, suggesting that he may refuse to accept the election result. On the other hand, the presence of military-type law enforcement at polling stations could raise questions about voter intimidation.

Why doesn’t the army intervene?

American democracy is based on the principle of civilian control over the military. The US military is accountable to civilian leaders such as the defense minister and is loyal to the constitution and national law and not to a political party or the country’s president.

In this regard, General Mark Milley, Chief of Staff and senior officer of the US Armed Forces, told Congress that the US military will maintain its apolitical role and will not interfere in potential electoral disputes.

“In the event of disputes over election issues, the law stipulates that the courts and the US Congress are responsible for resolving them, not the US military,” he said in writing to two Democratic lawmakers on the House of Representatives. “I do not anticipate any role for the US military in this process.” Miley also said that they will not be involved in the transfer of power after the presidential election.

What can the National Guard do?

It is a component of the army that intervenes in domestic emergencies, unlike active soldiers who are mobilized in case of war with other countries. The National Guard operates at the state level and is under the control of the governor, not the federal government.

Governors usually deploy these forces in emergencies such as natural disasters, but also to enforce the law in the event of violent protests. However, the rule is a police intervention seconded by the National Guard. The governors asked for the support of the National Guard after the civil unrest that followed the deaths of some African-Americans during the arrest.

Moreover, the National Guard Bureau has created military police units with the role of rapid reaction forces that can be sent to other states at the request of governors requiring additional assistance in mitigating civil unrest.

The National Guard can be deployed at the order of the president in contexts of war, but also for domestic emergencies, in this case there are problems related to a possible opposition from the governors and the extent to which they could win the case.

When can the Insurrection Law be invoked?

Under this 1807 law, the president has the authority to send active military personnel to those states that cannot quell an insurrection on their own or that defy federal laws. The president can activate federal troops without the governor’s approval if certain conditions are met, for example, violence no longer makes it possible to enforce the law.

Could possible post-election violence reach the level of an insurrection? It is not clear from a legal point of view whether states can block the president’s invocation of the Insurrection Law.

There is no precedent in modern times for its applications in the context of a presidential election. In the last half century (1950s and 1960s) it was used to impose desegregation in schools in the southern states.

In June, President Trump thought of such a solution after the violent protests that followed the death of George Floyd in Minneapolis police custody. Defense Secretary Mark Esper opposed sending active military personnel to restore law and order. He publicly stated that the Insurrection Law should be invoked only in the most “urgent and desperate situations”, or “we are not in them now”. However, the refusal to comply with a presidential order in this regard would be unprecedented.

What can be said about security at polling stations?

Democrats have expressed concern that Trump supporters could intimidate their voters by going to the polls so that they no longer vote. Trump amplified those concerns during the Sept. 29 presidential debate when he urged his supporters to “go to the polls and watch him closely.”

Some governors, including Andrew Cuomo of New York State, have raised the issue of using the National Guard to ensure security near polling stations. The National Guard was present at some primary elections, and some officers took over civilian tasks such as replacing officials who were absent due to the COVID-19 pandemic or directing traffic. However, the military presence in the elections is a matter of concern.

Michele Flournoy, a Democrat who may become secretary of defense in a possible term of Joe Biden, believes that the National Guard can intervene only to the extent of overwhelming police forces. At the same time, their appearance at the polling stations can be “very intimidating for voters” so it is preferable not to get to this point.

After law enforcement intervened on protesters in Lafayette Square near the White House on June 1, when Donald Trump accompanied military leaders to a local church, where he had a photo shoot, a group of lawyers created the Orders Project and provided advice. free of charge to military or police personnel who would have had to comply with potentially illegal orders in the context of the presidential election.