SIXTH MEMORANDUM TO MEMBERS OF CONGRESS AND STAFF

21 April 2026

FROM: The Former Judge Advocates Working Group

SUBJECT: The Insurrection Act and Military Personnel at Polling Places

In our Third Memorandum dated 7 October 2025, the Former JAGs Working Group alerted Congress to two potential threats to our democracy involving the (mis)use of our military: (1) the targeting of Americans under the pretense that they are members of “domestic terror organizations” such as “Antifa,” and (2) the intimidation of voters by posting troops at polling places during the upcoming elections.

In the seven months since we first raised these concerns, the President has issued a torrent of executive actions that both support our predictions and convince us that the threats we are now facing are even more dire than we anticipated. Actions such as the military strikes against alleged narcotrafficker boats in the Caribbean and eastern Pacific based on the cynical argument that they are lawful acts of non-international armed conflict; the intentional killing of two survivors of the first of those boat strikes that violated the laws of war; and the initiation of unlawful international armed conflicts with Venezuela and Iran strongly suggest that judge advocates have been marginalized in the military planning and execution processes to an even greater extent than we anticipated.

Many Americans are now concerned about how this Administration is systematically transforming our military into an institution that can’t or won’t say no; but its efforts to desensitize military members to illegal, immoral, and unethical acts have not been uniformly successful. It is apparent, for example, that the President’s recent threat to commit genocide in Iran met opposition in the Pentagon. Also, General Gregory Guillot, the NORTHCOM commander, recently testified that he would not follow an order to deploy forces to polling locations on election day because it would be unlawful.

Administration efforts to desensitize have not been limited to the military. With each new unprecedented act, this Administration further numbs America’s indignation. Nowhere is this more vividly illustrated than the silence surrounding the President’s recent voting-related Executive Orders. We thus return to the very real threat that the President and his enablers will seek to interfere with the midterm elections.

Laying the Groundwork

The Insurrection Act, specifically 10 U.S.C. § 253, allows the President to employ federal forces:

... to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it (1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right,

privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection...”

It is essential that we expand our thinking beyond conventional interpretations and past invocations of the Insurrection Act when considering how the President might deploy troops to polling places. The President’s attempts to seize control of elections through his most recent Executive Orders were so audacious that we must pivot to the possibility that he is actually laying the groundwork to claim that the “left” is planning a “conspiracy” to “deprive” voters of their “right to vote” in November.

The President is building a case to deploy troops, ICE , or some other armed federal paramilitary force to influence the elections in November. Connect the dots:

1. The President has already declared “Antifa” a domestic terror organization. As such, he has created a justification for using military forces to respond to a contrived threat.

   1. In 2001, an Office of Legal Counsel (OLC) memorandum discussed the Posse Comitatus Act (PCA) in the context of a domestic terrorist attack. It concluded: “Because using military force to combat terrorist attacks would be for the purpose of protecting the nation’s security, rather than executing the laws, domestic deployment ... would not violate the PCA.”

   2. Having declared “Antifa” (an Administration catch-all for the “left”) a domestic terror organization, all the President would need as a basis for deploying the military against them is claim that they are involved in a “conspiracy” to influence the elections in favor of Democrats.

   3. The President could similarly circumvent 18U.S.C.§592, which makes deploying the military to “any place where a general or special election is held” a crime “unless such force be necessary to repel armed enemies of the United States,” by designating “Antifa” as an “armed enemy.”

2. Recently, the President made clear his desire to end mail-invoting ,establish a national voter registry, and require voter identification as a prerequisite to voting in any national election. On 31 March 2026, he signed an Executive Order to influence the conduct of upcoming national elections by requiring the federal government to compile lists of citizens who are eligible to vote and requiring the US Postal Service (USPS) to create rules placing limits on the kinds of mail-in ballots that may be used in national elections. The USPS would thus not accept or deliver mail-in ballots unless they are mailed by individuals on the national list, effectively eliminating Constitutionally-mandated State oversight of mail-in balloting for national elections.

3. On 25 March 2025, the President signed an ExecutiveOrder requiring “documentary proof of United States citizenship” as a prerequisite to voting in a national election. States failing to comply will lose federal funds. This E.O. also purports to authorize the Departments of Justice and Homeland Security to access State “election equipment, ballots, or any other relevant materials used in the conduct of any Federal election” without legal process or judicial review.

   
   

States ignoring these Executive Orders will be deemed to be “refusing” to enforce federal law and thereby “depriving” voters of their right to vote – conditions that could give the President a legal justification to send in federal troops.

Past is prologue. Lest anyone doubt that he is ready, willing, and able to use these Executive Orders as pretext for deploying troops to polling places, we should recall that the President has already used other Executive Orders to twist actual or manufactured facts into legal justifications to use the military in ways inconsistent with US law:

1. His Executive Order establishing National Defense Areas (NDAs) along the southern US border with Mexico was based on the argument that illegal migration is a national security threat. Declaring a “mass migration national emergency” enabled the President to use the military to repel illegal immigrants. His NDA Executive Order provided the military a legal basis to avoid the proscriptions of the Posse Comitatus Act and enforce federal law within those designated areas.

2. His designation of fentanyl as a “weaponofmassdestruction”provided the President with an argument that the military should be used domestically to prevent its importation. It also provided a legal basis for conducting military kinetic strikes on narcotrafficker vessels instead of using law enforcement to interdict them.

We should be concerned that he will employ the same tactics to create conditions for the deployment of troops to polling places.

More evidence of intent. Finally, many of the President’s most senior advisors support his intent to deploy troops or armed paramilitary law enforcement forces to selected States and cities. Steve Bannon has predicted that ICE agents will be deployed at and around polling places. Acting Attorney General Todd Blanche asserted at the most recent CPAC that ICE agents can and will be deployed to polling places, and because “only citizens are allowed to vote” no one should be heard to object.

How Can We Prevent the Military From Being Used to Influence Elections?

Congress, the States, and the Federal courts each have roles to play, but time is of the essence.

Congress

In our Fifth Memorandum to Congress, The Former JAGs Working Group proposed legislation that we believe could help dissuade or prevent the President from invoking the Insurrection Act. We offer relevant excerpts here. (The numbering below tracks the sequence in our Fifth Memorandum)

1. Legislative Proposal 2c:Establishing a Posse Comitatus Act Private Right of Action

Unless the Insurrection Act is properly invoked, any deployment of military personnel to polling places will necessarily implicate the Posse Comitatus Act. An important consideration in such a situation is determining who has standing to complain. In last year’s deployment of troops to Los Angeles, a federal court in Newsom v. Trump considered the issue of standing because the PCA itself does not explicitly provide for a private right of action. We believe that because violations of the act are highly likely to injure the people against whom the military unlawfully enforces domestic law – in this scenario, voters – those suffering injury should have standing to object, restrain, and seek damages from the federal government.

ESTABLISHING A PRIVATE RIGHT OF ACTION IN THE POSSE COMITATUS ACT

Section 1385 of Title 18, United States Code, is amended by renumbering the current text as subsection (a) and inserting the following new subsection:

“(b) Any person or State or local government aggrieved by a violation of this Section may bring a civil action against the United States in any district court of the United States having jurisdiction of the parties for damages, injunctive relief, or both, including reasonable attorney’s fees if the prevailing party.”

2. Legislative Proposal 5a: Prohibiting Placing Military Troops at Polling Places and Providing a Private Right of Action for its Violation.

18 U.S.C. § 592 dates to the Civil War and was passed in response to the use of troops at polling places to prevent all but voters for the “preferred” party from voting. The statute gives the President discretion to determine whether armed enemies are threats to polling places. However, as we have seen in numerous recent cases, federal courts ultimately will determine whether that discretion has been exercised reasonably and lawfully.

Our proposal is to vest discretion in the courts in the first instance. We view this as a compromise not unlike the one the Founders established in the Elections Clause (Art. I, Sec. 4, Cl. 1). We also believe the Elections Clause gives Congress the authority to adopt our proposal.

REINFORCING STATUTORY PROHIBITIONS AGAINST PLACING MILITARY TROOPS AT POLLING PLACES

Section 592 of Title 18, United States Code, is amended by deleting the words “unless such force be necessary to repel armed enemies of the United States” and substituting the words “unless a United States District Judge with jurisdiction over the place agrees that access to the polls cannot be ensured solely through the use of local and state civilian law enforcement;” and by adding a third paragraph as follows: “Any person or State or local government aggrieved by a violation of this Section may bring a civil action against the United States in any district court of the United States having jurisdiction of the parties for damages, injunctive relief, or both, including reasonable attorney’s fees if the prevailing party.”

3. Legislative Proposal 5b:Insurrection Act Notice to Congress and Duration Limits.

Anticipating the possibility that military forces may be dispatched in the future to places across the United States to perform law enforcement duties, we also propose that notice and duration limits be established.

NOTIFYING CONGRESS OF AND LIMITING DURATION OF A PRESIDENT’S INVOCATION OF THE INSURRECTION ACT

Section 254 of Title 10, United States Code, is amended by renumbering the current text as subsection (a) and inserting the following new subsections:

“(b) Any use of the militia or the armed forces under this chapter shall be followed within five calendar days by notification to Congress.

(c) Any use of the militia or the armed forces under this chapter may not continue for more than twenty calendar days without express approval of Congress.”

States and the Federal Courts

A deeply divided Congress is unlikely to enact the legislation proposed above. We therefore recommend that individual Members of Congress fill the Legislative Branch’s silence by encouraging their respective cities and States to undertake litigation in the Federal courts along the lines set out below. Members of Congress should also continue to speak out in full support of free and fair elections.

States and cities must understand that these Executive Orders presuming to establish federal voting rules create necessary and sufficient conditions to seek injunctive relief. A group of State Attorneys General have already filed to enjoin the voting Executive Orders. This litigation, if successful, could neutralize the Administration’s argument that the Executive Orders establish “federal law” that some States will refuse to enforce. However, we believe it won’t be enough to prevent the Administration from deploying troops. More is needed:

1. In addition to asking the Court to find that these Executive Orders are unconstitutional,

States and cities likely to be affected should ask relevant District Courts to specifically prohibit the President, DOJ, DHS, DoD, and NORTHCOM from using these Executive Orders as a basis for invoking the Insurrection Act or using any other legal authority to deploy National Guard or active duty military forces at or near polling places.

The fact that these E.O.s exist suggests that the President intends to use the military at polling places, post offices, or any other place votes may be cast or transported and makes this a ripe, justiciable issue for the Federal Courts.

2. It’s impossible to anticipate all the circumstances under which the President might invoke the Insurrection Act or assert that the 18 U.S.C. § 592 “armed attack” exception applies. We therefore suggest the States also add a request for relevant District Courts to retain jurisdiction until the election process is complete and the results are certified. This would provide a mechanism by which any legal or factual basis for deployment of troops could be quickly and independently verified.

Conclusion

The Nation cannot afford to wait to see which legal construct the President will use to interfere in the midterm elections. The historical playbook is clear – use the law to undermine the rule of law; shift the rule of law to rule by law. Neither the Insurrection Act nor any other federal legislationwasintendedtoundermine“freeandfair”elections. Wehavesetoutpossible courses of action and will continue to urge and support both vigilance and responsive action.