The National Guard Cannot Seize Ballots

National Guard officers unload an armoured vehicle filled with soldiers outside of the courthouse in Kenosha, Wis., August 30, 2020.
(Jim Vondruska/Reuters)

From that much-discussed “wargame” that played out various election scenarios and foresaw catastrophes in every scenario except a landslide win for Joe Biden:

In one exercise, for instance, Team Trump’s repeated allegations of fraudulent mail-in ballots led National Guard troop to destroy thousands of ballots in Democratic-leaning ZIP codes, to applause on social media from Trump supporters.

The Republicans in this exercise were played by former Republican National Committee chairman Michael Steele, conservative commentator Bill Kristol, and former Kentucky secretary of state Trey Grayson, according to Rosa Brooks, organizer and co-founder of the Transition Integrity Project.

I suppose if you believe your opponents are remorselessly evil, you can have the character you’re playing do just about anything. In the real world, a National Guard troop or officer who destroyed ballots would be committing a crime. The president of the United States and the federal government do not determine what is and what is not a valid ballot; state governments and state laws do. A president’s declaration that a ballot is invalid carries no legal weight.

18 U.S.C. § 241 states:

If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

And this law has been used to prosecute those who destroyed ballots in the past.

Soldiers are legally obligated to follow lawful orders, but not unlawful ones. Under the U.S. Code of Military Justice, a soldier’s decision to follow an unlawful order can result in criminal penalties. An order to destroy cast ballots would be obviously and transparently illegal. In fact, the question of whether the ballot is legally cast is moot; the soldier has no legal authority to destroy the ballot. While U.S. National Guard members have participated in election-support activities — usually in civilian clothing — they have never had a role in determining the validity of ballots. It is really difficult to imagine any National Guard members believing that they are authorized to destroy ballots — particularly when ordered to do so by one of the candidates on the ballot!

That war game didn’t seem to be all that interested in simulating the real world; it appeared set upon acting out the most paranoid fantasies of the president’s critics. I’m surprised the stand-ins for the Trump campaign didn’t just choose to nuke the major cities the day before the election to ensure victory.

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