As the midterm elections approach, a small cohort of far-right commentators continues to wishcast that President Trump will invoke emergency powers to seize voting machines, deploy federal agents and troops to the polls, or otherwise disrupt the normal voting process. Trump is pointedly refusing to rule out these measures, even as officials in his own administration signal that they would be illegal. The message to voters is that they might as well stay home on Election Day.
It’s a ploy that smacks of desperation, and voters should not be fooled. Notwithstanding the broad array of emergency powers available to presidents, there is no emergency authority that would allow Trump to exert federal control over elections. And if he tries that approach, the courts can — and will — constrain him.
Would a national emergency declaration give Trump control over elections?
No. The Constitution clearly gives control over federal elections to the states and Congress, not the president. Prominent Trump allies suggest that a national emergency declaration could change that. Conservative television host Wayne Allyn Root, for instance, advised Trump that if he declares a national emergency, “we will get photo ID, proof of citizenship, and a limit to mail-in ballots.” Trump’s provocative response: “Stranger things have happened.”
These comments fundamentally misunderstand how national emergency declarations operate. They are not blank checks to suspend laws or create constitutional carveouts. Rather, they unlock specific powers set forth in roughly 140 different provisions of various laws enacted by Congress. Collectively, these powers give presidents broad authority over communications, transportation, and economic transactions. But not a single one of them gives the president any authority over elections.
To be sure, Trump could try to exploit emergency powers that have nothing to do with elections and use them in ways that could impact voting. But none would authorize the actions that have been floated.
Take the seizure of voting machines. A draft executive order from December 2020 purported to authorize such seizures, citing foreign interference in U.S. elections and invoking the International Emergency Economic Powers Act (IEEPA). The order was never implemented — and it wouldn’t have worked. IEEPA allows presidents to regulate property in response to foreign threats, but it doesn’t permit the warrantless seizure of American-owned property in which foreign entities have no property interest. Even if parts of voting machines — just like parts of countless electronic and mechanical devices American use every day — were manufactured in China, China retains no property interest in them.
More broadly, while some emergency powers explicitly override other, non-emergency laws, there is no automatic override. So, for the most part, any emergency power the president invoked would have to be exercised consistently with federal laws that prohibit interference in elections by federal actors (discussed below).
Could Trump invoke the Insurrection Act and send troops to the polls?
Separately, some Trump supporters are calling for an invocation of the Insurrection Act. This antiquated law doesn’t require an emergency declaration, but it is rightly seen as an emergency power. It gives presidents broad discretion to deploy federal troops to quell civil unrest or to enforce the law. To justify its invocation, Trump would presumably claim that military deployment was necessary to prevent illegal voting or to respond to purported civil disturbances.
Without question, an Insurrection Act invocation confers tremendous power. But that power can only be used to enforce the law — not to violate it. Federal law unambiguously prohibits the presence of armed federal officers at the polls, unless necessary to repel an armed attack by foreign enemies. The history of this prohibition — it was passed to end the deployment of troops at the polls during the Civil War — makes clear that no domestic crisis can override it. Trump’s own chairman of the Joint Chiefs of Staff has strongly indicated that an order to deploy troops to the polls would be unlawful.
Could Trump overcome these legal obstacles by declaring martial law or by citing his constitutional authority as commander in chief of the armed forces?
In a last-ditch attempt to transcend legal barriers, some Trump allies have urged him to declare martial law. Unlike the Insurrection Act, which permits deployment of troops to support civilian law enforcement, martial law results in troops fully displacing civilian government. The Constitution makes no provision for martial law, however, and it tasks Congress with setting the rules for domestic deployments. Under the current legal framework Congress has enacted, a presidential declaration of martial law is neither authorized nor permitted.
The Constitution does assign the president the role of commander in chief of the armed forces. At least one person in Trump’s sphere has suggested that Trump could rely on this role to deploy troops in response to a “provable foreign intrusion” — namely, China’s alleged interference with the 2020 election. That is a ludicrous proposition. We are not at war with China, and even if we were, it would give the president no authority over domestic elections. When President Harry S. Truman attempted to seize steel mills during the Korean War, the Supreme Court admonished that “the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute [the president] also Commander in Chief of the country, its industries and its inhabitants.” It certainly does not make him commander in chief of elections.
How do claims of presidential power interact with voting rights laws?
Above all, any attempt to exercise the powers described above would run headlong into federal voting rights laws. Even if the president is acting within his constitutional authority, the Supreme Court has made clear that Congress may constrain the president’s exercise of powers under Article II of the Constitution as long as Congress is acting within its own constitutional authority. There is no question that Congress has the authority under the Constitution to enact laws protecting the right to vote. Any presidential claim of constitutional authority therefore must yield to the voting protections Congress has established.
These protections are robust. In addition to the bar on troops at the polls, several laws prohibit intimidation of voters or interference in the election process. Many specifically constrain federal actors, seeking to prevent exactly the type of power grab Trump allies are envisioning. And while this Department of Justice might not enforce criminal prohibitions on the administration’s actions, some of the most potent voting rights laws may be enforced through civil lawsuits. Moreover, state criminal laws may be used to hold federal actors accountable if they are acting outside of their legitimate federal authority.
Does it really matter what the law says — particularly given the pro-Trump bent of this Supreme Court and the slow pace of litigation?
Yes, it matters. For one thing, because states and localities run elections, there are limits to what the administration could accomplish with an illegal order. Even if Trump tried something far-fetched like canceling an election or ordering vote counting to a halt, the people who actually administer elections don’t report to him. There would be no need to rely on the courts to enjoin an illegal order if no one were following it.
Of course, lawsuits could become necessary — and successful litigation might sound far-fetched in light of this Supreme Court’s pro-Trump record. But Trump’s winning streak comes with a surprising asterisk. In all four cases involving emergency powers, the Court limited or blocked Trump’s actions. Justices twice barred Trump from deporting Venezuelans without due process under the Alien Enemies Act; they blocked Trump’s federalization of National Guard forces in Chicago; and they struck down Trump’s invocation of the International Emergency Economic Powers Act to impose worldwide tariffs. There is little reason to think a misuse of emergency powers to interfere with elections would fare any better.
Yes, litigation often takes time, and voting will be over after November 3. But courts can move extremely quickly when necessary. Indeed, in extreme situations (and disrupting an election would qualify), courts can issue temporary restraining orders immediately, without waiting to hear from the other party. And while this administration’s record of compliance with court orders is far from perfect, it has stopped short of claiming the right to ignore an order from the Supreme Court.
If emergency powers don’t give presidents control over elections, what happens if there’s a real emergency?
State and local officials have ample authority to address genuine emergencies that affect the smooth functioning of an election, and they have done so effectively on many occasions. State officials used their own emergency powers to help run elections during natural disasters in recent years and in the wake of the 9/11 terrorist attacks. And we saw a particularly notable example just six years ago, during the coronavirus pandemic.
Covid-19 posed a very real threat to our elections in 2020. State and local officials responded by canceling or postponing primaries, expanding access to mail voting, shifting polling sites to large arenas, purchasing protective equipment for election workers, and even activating the National Guard to staff the polls. Collectively, they helped ensure that we had the safest and most secure election in our nation’s history in the face of an unprecedented public health emergency.
Congress, too, can act to protect elections in the face of an emergency. In 2020, Congress appropriated $400 million in funding to support state and local officials as they responded to the pandemic. The Constitution also gives Congress the power to set baseline standards for federal elections. For instance, although lawmakers chose not to do so, they could have passed a law guaranteeing access to mail and in-person voting across the country in 2020.
