The National Guard and elections: Legal authorities and guidance for judge advocates

Originally published by Protect Democracy. Here

For the full PDF of the report see here

Domestic military missions during election season raise unique issues that require careful examination. Given the National Guard’s domestic presence, National Guard judge advocates and command staff must know the laws and regulations that ensure the administration of free and fair elections is never undermined, even inadvertently, by those sworn to defend the Constitution. Retired state Adjutants General and Judge Advocates General from the Air Force, Army, Coast Guard, Marine Corps, and Navy have published practical guidance for analyzing potential domestic missions during an ongoing election.

This guidance offers a structured way to evaluate requests to use Guard forces during election season, organizing the analysis around five questions: 

Who commands the force? The Guard’s legal obligations turn on duty status, so whether a mission is pursued under state active duty, Title 32, or Title 10 is the threshold question. Counsel must also confirm that a lawful mobilization authority — the power to “call up” servicemembers from civilian status — supports the mission. 

What legal authority authorizes the mission? Counsel must confirm there is proper mission authority, i.e., the power to lawfully perform the proposed duties. Federal missions involving law enforcement activity must also comply with the Posse Comitatus Act (PCA). A valid invocation of the Insurrection Act temporarily suspends the PCA’s prohibitions, but cannot confer power to violate the Constitution or displace laws prohibiting military interference in elections. Recent court decisions have reinforced that domestic deployments must comply with applicable legal protections and are subject to judicial review.

What laws prohibit or restrict military activity during elections? Federal criminal statutes prohibit the military’s use where elections are held, subject to a narrow exception, and separately bar military interference in elections and voter intimidation. State law can impose similar restrictions. 

What DoD, National Guard, or state regulations and policies apply? Other authorities – which in many cases have the full force of law and are binding on covered personnel – reinforce statutory restrictions and, at times, further limit permissible conduct. DoD policy, for example, forbids DoD personnel and Guard personnel in Title 32 status from conducting operations at polling places.

Is this an appropriate use of the National Guard? Aside from questions of strict mission legality, this guidance urges TAGs and counsel to engage in deliberate preparation before election season; question legally doubtful directives; weigh how the public will perceive any Guard presence; and keep missions narrowly scoped in support of civilian authorities.

In sum: Any missions during the election season demand caution. Guard activity must not interfere, or reasonably appear to interfere, with the administration of or free participation in an election. Judge advocates must help ensure that our men and women in uniform never undermine the fundamental right on which all other rights depend.