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It’s a question Americans are not used to pondering in a presidential election campaign: Could the voting, the counting, or the subsequent reaction become so chaotic that the military has to intervene?
The answer is yes, but only in an extreme case. There is normally no need for the military to have a role in the election. The Constitution keeps the military in a narrow space: defending the country from external enemies. Civil order is left to the police, but there is an obscure law, the Insurrection Law of 1807, which in theory could throw the armed forces into a police role. Additionally, governors have the ability to use the National Guard in state emergencies if necessary.
Governors and military leaders have analyzed the potential use of soldiers – on active duty or in the National Guard – at the polls or in the event of post-election riots. The possibilities arise at a time when President Donald Trump asserts without evidence that voting by mail will create the conditions for electoral fraud and hints that he may not accept defeat. Deploying soldiers at the polls on election day – even if it is to protect citizens when they vote – raises questions about voter intimidation.
Here are some questions and answers about a possible military intervention in the elections:
WHY WOULD THE ARMED FORCES INTERVENE?
Civilian control of the military is a basic principle of democracy in the United States. That means men and women in uniform answer to civilian leaders, like the secretary of defense, and stand apart from politics. They swear allegiance to the Constitution and laws of the nation, not to a political party or president.
General Mark Milley, who as commander of the Joint Chiefs of Staff is the country’s top military leader, has told Congress that the armed forces are committed to remaining apolitical and away from any role in the elections.
“In the event of a dispute over electoral matters, according to the law, the federal courts and Congress have an obligation to resolve any dispute, not the armed forces,” he said in written responses to questions from two Democratic legislators who are members of the Armed Services Commission of the House of Representatives. “I do not envision a role for American soldiers in that process.”
Milley said the military should not be involved in the transfer of power after the elections. In other words, don’t expect to see a troop intervention if there is a dispute over who won.
WHAT COULD THE NATIONAL GUARD DO?
The armed forces are made up of active duty, National Guard and Reserve troops. In all cases, with extreme exceptions, active duty troops are used in wars to protect the nation, not against US citizens on national soil. National Guard units are in every state and are controlled by the governors, not the federal government.
Governors typically mobilize the National Guard for emergencies, such as natural disasters, and may use it to help enforce the law during extraordinary events such as riots, but usually civil law enforcement agencies have the primary role and National Guard forces are a backup. In incidents of civil unrest this year, governors used the National Guard to combat violence and provide security. They could do it again.
To strengthen that management, the National Guard Bureau has designated military police units in two states to serve as rapid reaction forces to respond if a governor requests help from other states to control riot.
During a national emergency, such as the wars in Iraq and Afghanistan, a president can deploy the Guard in federal status to support active duty troops. The president has the authority to federalize the Guard for use in national emergencies, but there are questions about whether a governor can block that step.
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