On October 1st, Donald Trump made a comment that has received too little attention. He told Time magazine that he would consider declaring a national emergency or invoking the Insurrection Act near the midterms.
While he refused to commit, that hasn’t stopped his aides and outside advisers. On attorney who advises Trump openly said that he would have to declare martial law and seize control of the elections. We knew something like this was coming, but is jarring and terrifying nonetheless.
He has no power to manage elections under the Constitution. That power belongs to the states, as enshrined in Article I. The only institution that can change the rules around elections is Congress.
Implied in Trump’s threat is the use of the military and other forms of law enforcement, including a federalized National Guard and ICE. It is a crime to deploy troops or other armed entities to a polling location. Any soldier or law enforcement officer who violates this law is subject to arrest and prosecution. Some district attorneys have vowed to arrest any violators.
On the other hand, there is the vaguely designed Insurrection Act. Its objective is to address genuine uprisings. Trump is more likely to choose this path and it will be challenged upon execution.
The main question is what attorneys, activist groups and the public will do if Trump takes any of these steps. The first line of defense is state election authorities. They must make it clear, now, that the elections will proceed no matter what Trump does, and then follow through.
Governors need to be prepared to deploy state law enforcement to protect polling places. And state AGs and other groups must be ready to file suits at the first sign of regime action. This must be done in a way to make it painful for Trump to persist. He backs down when challenged, and he has to be challenged.
The courts have repeatedly ruled against Trump and they will do so this time. This case would be a slam dunk. I seriously doubt that even this Supreme Court would sustain him in such a drastic circumstance. But all of this must happen quickly.
Congress has a role. They can end a national emergency declaration via a joint resolution. I believe even this Congress will act. They know they will eventually be finished politically if they allow Trump his way this time. While he can veto it, there probably will be the votes to override. This is a big deal, even for a lot of Republicans.
The role of the public is vital. The best path forward is to persevere and go out to vote under the protection of the states and precincts. People should vote early where possible and be prepared to help others get to their polling places.
Trump is trying to intimidate and terrify. We cannot let him succeed in this effort. It isn’t clear whether he will follow-through but we have to assume that he is serious and act accordingly.
We held a successful election during a bloody civil war. If we can do it then we can do it now. Pre-emptive surrender to Trump is an act of defeatism and we must not succumb to it. He is counting on our fear. We can respond by voting in massive numbers and flipping him a collective bird.
The most dramatic and disruptive insurrection this country has ever previously experienced was the south's move to secede. and the Civil War. We had elections then. Case closed, and we need enough of the right attorneys to make sure the courts don't imagine they have any other way of looking at it.
In February, I wrote: "If that fails, the Regime appears more than prepared to send armed and masked federal agents to intimidate voters in blue state precincts, in the same way the KKK terrorized Black voters in the early years of Reconstruction." I will be surprised if the midterms come off without Trumpian interference, but what worries me is the period between November and January. Turnout is paramount, followed by determination to protect the results if the GOP tanks as it seems it will. Vote early, as Mark recommends.