There is, however, an exception: Troops are permitted if “necessary to repel armed enemies of the United States.” An aggressive interpretation of that phrase, according to Dakota Rudesill, a professor of national-security law at Ohio State University’s Moritz College of Law, might describe “agents of antifa” in those terms. “That would be a stretch, but we’ve seen a lot of stretches” from Trump, Rudesill said. If troops took possession of ballots, “obviously what we’re talking about are profoundly severe, extreme, shocking developments that would be just massive norm violations and the sort of thing you see in authoritarian states like Russia that have the forms and processes but are not democracies anymore.”
But who could stop the president? Courts are often deferential to the executive branch in matters of national security, and it is unclear what remedy they could order even if they ruled the deployment illegal. There are no do-overs in a presidential election.
Most election-law experts I talked with expressed deep skepticism of this scenario.
“The kinds of things you’re talking about are the kinds of things that would lead to rioting in the streets,” said Richard L. Hasen, a professor at the UC Irvine School of Law. “Now we’ve truly crossed into banana-republic territory.”
Maybe rioting is just what Trump would want in order to validate the deployment, I observed.
“You’re one of the few people I know who’s darker than I am,” Hasen replied.
One practical barrier, according to a lawyer advising the Biden team, is that “it would take a lot of troops in a lot of places to have an impact that clearly helps him.”
“A huge number of people have already voted,” the lawyer added. “How many troops do you have to send to how many places to affect a national election? And you’ve got to worry about whether you can actually get them to do what you want.”
That last point is the real constraint on Trump’s use of troops, the practical barrier he likely cannot surmount. It is hard to imagine the armed forces going along. General Mark Milley, the chairman of the Joint Chiefs of Staff, is not in the formal chain of command, but he spoke for the top uniformed leadership in a highly unusual written statement to the House Armed Services Committee, disclaiming any role for the U.S. military in the event of an election dispute.
Kori Schake: The military doesn’t want to get involved
Biden’s team has emergency legal papers prepared, but a senior adviser said flatly that “there is no way that he’s going to persuade the Pentagon to send troops.”
“Number one,” the adviser said, the senior brass “don’t want to, so let’s start with that. And number two, they make an independent evaluation about whether the action is legal. And there are at least two statutes that not only prohibit the troops from being deployed near polling places, but actually impose liability on the officers and arms-bearing soldiers.”