Preventing Voter Intimidation by Federal Agents at the Polls

In May, when President Trump was asked whether he would send National Guard troops or Immigration and Customs Enforcement (ICE) officers to polling locations during the midterm elections, he responded that he would “do anything necessary to make sure we have honest elections; we have to have honest elections.” Several of his officials and allies have made similar comments in recent weeks and months. While no public information suggests that the federal government currently plans to deploy armed law enforcement agents to the polls in November, these statements appear designed to sow fear among voters.

Despite the implied threat, the law is clear: Sending armed federal agents, including those from ICE, to election sites is illegal. Federal law and many states’ laws prohibit not only armed federal agents at polling sites, but also interference in elections or voter intimidation by any officials or private citizens. More important, using these tactics would be a flagrant attempt to hold on to power through force and intimidation and an affront to free and fair elections. Yet, given the Trump administration’s pattern of flouting rules and engaging in plainly illegal and unethical conduct, including attempting to overturn a valid election, we must take this threat seriously.

If armed agents go to polling sites during early voting or on Election Day, the vast majority of voters would be unlikely to encounter them, though the prospect of it might still deter them. There are close to 100,000 polling sites across the country, and any such action or deployment is unlikely to impact more than a handful of them. A wide range of efforts are planned to protect the relatively few polling sites where voters could face armed agents and to keep the election safe and secure.

Three federal laws criminalize federal interference in elections: 18 U.S.C. §§ 592, 593, and 595. First, 18 U.S.C. § 592 prohibits military or federal officials from stationing troops or armed men where elections are held. Originally passed in 1865, the statute now reads:

Whoever, being an officer of the Army or Navy, or other person in the civil, military, or naval service of the United States, orders, brings, keeps, or has under his authority or control any troops or armed men at any place where a general or special election is held, unless such force be necessary to repel armed enemies of the United States, shall be fined under this title or imprisoned not more than five years, or both; and be disqualified from holding any office of honor, profit, or trust under the United States.

Congress passed this law and its corollary provision, § 593, which prohibits members of the military from interfering with elections, amid the Civil War on a bipartisan basis because it was concerned about the potential for the federal government, and particularly the president, to abuse executive power to influence elections, which are run by states. Its purpose was to protect the freedom of elections to maintain a free government.

Because § 592 covers “armed men” of the “civil service” of the United States, it bans federal law enforcement agents, not just troops. And while no court has interpreted “any place where . . . [an] election is held,” its plain meaning should encompass election offices and ballot-counting facilities as well as polling places. The exception for “force . . . necessary to repel armed enemies of the United States” allows troops near election sites only if a hostile foreign power is attacking those sites with weapons — and, even then, only to engage in military operations to defend against that attack, not to engage in law enforcement or other activities. In fact, in 1909 Congress removed an additional exception in the original law for “keeping peace at the polls,” at least in part because it feared that federal authorities could point to any kind of disturbance as a pretext to deploy troops.

Under § 595, civilian federal employees are similarly prohibited from using their official position to influence federal elections. Congress passed the law, which sought to preserve the free ballot and protect against political coercion, in 1939 as part of the Hatch Act.

Another law, 52 U.S.C. § 20511, makes it a federal crime to intimidate or attempt to intimidate a voter or anyone “urging or aiding any person . . . to vote” (which would include election workers and organizations that support voters) in a federal election, and 18 U.S.C. § 241 makes it a crime to conspire to threaten or intimidate anyone from exercising their constitutional rights, which includes the right to vote. These laws apply to private citizens and public officials alike.

In addition, civil rights laws protect against voter intimidation by government agents through civil liability. For example, the Voting Rights Act of 1965 prohibits intimidation of voters or of those “urging or aiding any person to vote or attempt to vote,” and it allows anyone who experiences such intimidation to go to court to enforce the law. A voter, election worker, or campaign worker could seek an injunction against the intimidating conduct. Depending on the circumstances, a voter might also be able to sue under other federal laws, such as the Ku Klux Klan Act of 1871 or the Administrative Procedure Act. 

Many states also have laws prohibiting voter intimidation that apply to everyone, including federal officials. And several states are looking to pass laws that mirror the federal prohibitions on interference by troops and federal agents discussed above, as well as federal laws that prohibit the deprivation of civil rights, 18 U.S.C. §§ 241 and 242.

If the federal government sends armed federal agents to the polls, a wide range of actors are prepared to enforce the law and protect the right to vote. Given that any deployment would likely target a few swing jurisdictions, many voter protection efforts are focused there.

Litigation

Legal advocacy organizations such as the Brennan Center are preparing to go to court as needed to stop federal deployments or armed agents at the polls, and, if such incidents do occur, to seek court orders to keep polls open longer and ensure that voting access is not disrupted. Likewise, local government attorneys are preparing to bring civil lawsuits against the federal government to challenge a federal deployment, as well as to prosecute any violation of state criminal laws if one occurs. Already, one group of prosecutors has vowed to do just that.

Courts around the country have checked the administration’s overreach. In 2020, a federal judge dismissed Trump’s attempt to have millions of votes in Pennsylvania tossed out. After Trump returned to office, the Supreme Court upheld a lower court’s ruling that his deployment of National Guard troops in Chicago was illegal. The administration subsequently withdrew them.

Courts have also consistently ruled against the administration’s attempts to interfere with elections, with 17 (as of this writing) dismissing Department of Justice cases against states that resisted its demands for current voter registration lists and ballots from previous elections. Several courts have either blocked implementation or struck down key parts of both Trump’s first and second executive orders on voting, and one court prohibited the use of a flawed federal voter eligibility verification tool whose use the administration has illegally expanded in a bid to purge voters.

State and Local Measures

Election officials are working hard, as always, to ensure that the next election runs smoothly and that voting proceeds safely, with ballots kept secure. As part of their preparations, many have established clear protocols to handle and store ballots, and they have developed clear lines of communication with state officials and local law enforcement. If there is a disruption at a polling site, local election officials are prepared to take immediate action to ensure that voting can continue uninterrupted, such as deploying emergency backup supplies and databases, contacting law enforcement to assist with de-escalation, and seeking guidance from higher-level officials or their counsel.

Local law enforcement has a responsibility to keep the public safe, including at polling places, without making its presence itself intimidating. Some law enforcement leaders are working closely with election officials to assess security and provide guidance on how best to coordinate. Law enforcement agencies will be alert to any possible threats and prepared to respond as needed. In separate incidents during recent primary elections in San Antonio, Texas, and Simi Valley, California, local law enforcement agencies responded to reports of ICE agents present near polling locations and ensured that they left so that voters could proceed without feeling intimidated.

State lawmakers are drafting and passing legislation to protect against different types of voter intimidation or election interference. Some legislatures have prohibited government agents or civilians from bringing guns to polling sites. Others have either already passed laws that mirror the federal law against sending armed agents to polling sites or are considering them.

Civic Mobilization

Civic engagement organizations that have long monitored polling sites are preparing guidance and training for their volunteers, incorporating advice on what to do if they encounter federal agents, such as documenting and reporting agents’ activity while avoiding confrontation.

Community-based groups are also preparing to organize direct actions, such as poll observation and mass peaceful protests (conducted away from polling sites to minimize the chances of confrontation), if the federal government deploys federal agents who intimidate voters and election officials or otherwise unlawfully interfere with elections. Grassroots efforts that mobilized in response to the mass ICE raids in cities such as Minneapolis, Chicago, and Portland, Oregon, over the past year are a model of how communities have developed their own infrastructure that can be reactivated.

Voters

Voters must do their part to ensure safe and secure elections. This administration depends on using fear to undermine public faith in the process. In turn, the most important thing we can all do in the face of such a campaign is to double down on democracy. We must vote. We must make a plan to do so, and we must help our family, neighbors, and friends do the same. We should check our voter registrations and cast our ballots as early as possible. We should learn our state’s options for doing so and consider returning our ballots in person or by depositing them in drop boxes when possible. We must also remind our communities that state and local officials are working hard to ensure that our elections remain safe and secure, as well as let our elected representatives know that we expect them to oppose any attempt at government interference in elections. If the administration does make such an attempt, we must be prepared to hold it accountable by protesting peacefully and reporting illegal activities.

Instead of escalating situations by confronting federal agents, voters should call the election protection hotline, (866) OUR-VOTE, to report suspicious behavior to volunteer lawyers who can help determine whether the behavior may be illegal and a basis for court intervention or other kinds of action. They can also alert a poll worker on site, if they feel comfortable doing so. Finally, voters should ensure they are not spreading false alarms about a potential federal deployment, for example by posting suspicious behavior on social media, as that could lead to unwarranted fear or panic based on unverified information.

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The most effective way to prevent armed federal agents from interfering with elections is to build public consensus that doing so would be an unacceptable breach of the United States’ most basic principles. If we are united in that view and prepared to stand up for democracy alongside state and local officials and others who are ready to enforce the law, together we will have the power to protect our elections and ensure that they reflect our will.