In claiming that the 2020 election could be “rigged” by the Democrats, U.S. President Donald Trump recently hinted he may deploy federal authorities to polling places around the country on Election Day to root out corrupt practices that would impact the presidential election.
Asked during a Fox News interview last week if he planned to deploy federal monitors to polling stations Nov. 3 to prevent fraudulent voting, Trump replied, “We’re going to have everything.”
“We’re going to have sheriffs, and we’re going to have law enforcement, and we’re going to have, hopefully, U.S. attorneys. And we’re going to have everybody, and attorney generals,” he told conservative host Sean Hannity. “But it’s very hard.”
Trump has steadily stepped up his largely groundless assertions that the U.S. voting system — especially the surge in voting by mail in the face of the coronavirus pandemic — is rife with corruption and needs a watchful federal eye.
While it was not clear if Trump was engaging in idle speculation or if he was serious, some observers took his latest remarks to suggest he not only wants “poll watchers” but law enforcement officers posted at voting precincts.
Poll watchers, often appointed by political party committees, are deployed by the tens of thousands every election cycle. Their job is to monitor voting irregularities and to challenge the qualifications of a voter if they have suspicions.
But law enforcement presence at U.S. polling places is uncommon. Federal laws prohibit the deployment of troops and armed agents to the polls, while a number of states restrict their presence.
Here is a look at the legality of deploying law enforcement officers at the polls.
Can Trump send local sheriffs to the polls?
The United States has a system of limited government. While the national government is “supreme” under the U.S. Constitution’s “Supremacy Clause,” states are accorded broader “police powers” under the Tenth Amendment.
In a landmark decision in 1997, the U.S. Supreme Court “interpreted the Tenth Amendment to specifically mean that the federal government cannot directly order state and local law enforcement officials as if they were agents of the federal government,” said Edward Foley, a constitutional law professor and director of the election law program at Ohio State University.
Can the president send armed federal agents to the polls?
A long-standing federal law prohibits military and civilian “officers” from sending “troops” or “armed men” to the polls, except to “repel armed enemies of the United States.”
A post-Civil War version of this law allowed for federal troops to be present at the polls to “keep the peace,” according to Foley. President Ulysses S. Grant used the provision to enforce civil rights for African Americans in the South. But with the collapse of Reconstruction and the withdrawal of federal troops from the South, Congress changed the law to prohibit the use of troops and armed agents.
The prohibition applies to the Department of Defense, as well as law enforcement agencies such as the departments of Justice and Homeland Security.
A 2017 Justice Department election crimes guide reminds federal prosecutors that they have “no authority to send FBI Special Agents or Deputy U.S. Marshalls to polling places.”
A 2018 Department of Defense directive says military and National Guard personnel “will not conduct operations at polling places.”
Acting Homeland Security Secretary Chad Wolf said in a recent interview with CNN that the Department of Homeland Security lacks the authority to deploy agents to the polls.
Hans von Spakovsky, a former federal prosecutor, said it is highly unlikely that Trump will order the deployment of troops and agents to polling places.
However, “if the president ordered someone at DHS or DOJ to do something that violated the statute, I don’t think they would follow the (order),” said von Spakovsky, now a senior legal fellow at the conservative Heritage Foundation.
Is there any precedent for sending law enforcement officers to the polls?
During the 1981 gubernatorial campaign in New Jersey, the Republican Party posted off-duty sheriffs and police officers at polling places in predominantly Black and Latino neighborhoods.
The Democratic National Committee sued, claiming the “ballot security program” was part of a broader voter intimidation effort. Under public pressure, the Republicans agreed to settle the following year by entering a “consent decree.”
The decree, in force for 35 years, prohibited the Republican Party from undertaking “ballot security” at polling places in heavily minority communities.
Von Spakovsky said that while political parties cannot post armed personnel inside polling places, they should be allowed to hire former law enforcement officers as poll watchers.
What do state laws say about police presence at polls?
A patchwork of state laws governs law enforcement presence at polling stations, Foley said. While some states such as Iowa allow police officers to provide security on Election Day, others such as Pennsylvania and Florida explicitly prohibit their presence, unless they are there to cast ballots.
“There is a sense that sometimes the presence of local police officers carrying their firearms could be an intimidating factor,” Foley said. “The idea is to try to make voting as less of a hostile environment as possible.”
Conservatives say they do not object to local jurisdictions using police officers to guard polling stations.
“I don’t have a problem if states want to do it. If they simply want to post an officer at the polls to make sure there is no violence, there is no violation,” von Spakovsky said.