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Elections

Brief # 13

Martial Law Is Not in the Cards 

December 32, 2020

By Zack Huffman

Policy

After weeks of refusing to accept the results of last November’s election, President Donald Trump has reportedly discussed the possibility of declaring martial law as the latest in a series of attempts to retain power despite losing the election to President-elect Joe Biden.

Trump has repeatedly spoken out – and tweeted – about the election, which featured an unusually high amount of mail-in voting as a precaution against the spread of COVID-19. Due to the increase in mail voting, the results to the election in several swing states were unknown by the end of the night on November 3. Trump’s claims that votes that were officially counted after November 3 were illegitimate were predicted prior to the election, as the president spent the summer and fall attacking the validity of mail-in balloting.

The Trump campaign attempted to overturn election results in Georgia, Pennsylvania, Nevada, Arizona,  Michigan and Wisconsin through lawsuits and recount demands, though none of those efforts were successful. The campaign then pivoted to appealing to state and federal legislators to override the electoral college, or at least legitimize Trump’s electoral voters. Those efforts were also unsuccessful.

This leaves the lame duck president with more radical options for retaining his power, including using the military to oversee a do-over election.

Analysis

The idea of using martial law for a new election was most prominently raised by retired Army Lt. Gen. Michael Flynn when he retweeted calls from an Ohio-based Tea Party group calling itself “We The People Convention.”

Flynn served as Trump’s first National Security Advisor. He lasted about a month before having to resign after failing to disclose his contacts with a Russian ambassador in the months between Trump’s 2016 electoral win and his inauguration in 2017. Flynn later retroactively registered as a foreign lobbyist after admitting to working as a paid lobbyist for the government of Turkey. Flynn pleaded guilty to lying to the FBI about his communications with the Russian ambassador, but he was pardoned by Trump on November 25, 2020. Since being pardoned, Flynn reportedly met with Trump in the Oval Office to discuss the possibility of declaring martial law.

University of Texas Law School professor Steve Vladeck explained that the president could legally use martial law to subdue Black Lives Matter protesters In an analytical piece for the Washington Post last June, following the killing of George Floyd.

The power to declare Martial Law goes back to the beginning of the United States when Congress passed a law on May 2, 1792 that authorized the president to call upon a state’s militia, at the request of that state’s governor, to mobilize against a foreign invader or to quell domestic uprisings. President George Washington used those powers to stop the Whiskey Rebellion in 1794.

In the early half of the 20th century, martial law was used to oppose coal worker strikes in Colorado and West Virginia, and against other labor strike in Minnesota and California. The legal tactic was used in Alabama in the early 1960s against civil rights protesters. Martial law was also declared in 2005 in New Orleans in the wake of Hurricane Katrina. In those cases when the president called for martial law, as opposed to the respective governor, it was done so at the request of the state. The Supreme Court of the United States has yet to weigh on the legitimacy of the president using martial law without the request of a state government authority, according to Vladeck.

Aside from legal precedent, Trump may not have the support from those he would need to enact and enforce martial law.

Newsweek reported that military leadership has had several internal planning discussions to prepare for the possibility of Trump calling upon them to enforce martial law. According to numerous unnamed sources there is “zero chance” that the military leadership would get involved in any effort to reverse an election.

An unidentified defense official told the Military Times that the concept of using the military to oversee a new election under martial law was, “insane in a year that we didn’t think could get anymore insane.”

Meanwhile, CNN reported that numerous White House staffers were quick to go to the press after the meeting with Flynn because they were alarmed about the talk of using martial law. This is perhaps why news of the meeting spread so quickly.

 

Learn More:

https://www.washingtonpost.com/politics/2020/12/24/could-trump-declare-martial-law-try-steal-election/

https://www.newsweek.com/exclusive-donald-trumps-martial-law-talk-has-military-red-alert-1557056

William Arkin, 12-24-20

https://www.vox.com/policy-and-politics/2020/9/30/21454325/trump-2020-peaceful-transition-election-stealing

https://www.washingtonpost.com/politics/2020/06/19/under-insurrection-act-1807-heres-what-us-president-can-cannot-do/

https://www.militarytimes.com/news/your-military/2020/12/02/calls-for-martial-law-and-us-military-oversight-of-new-presidential-elections-draws-criticism/  accessed on Dec. 27 2020.

https://www.cnn.com/2020/12/20/media/stelter-trump-martial-law/index.html

accessed on Dec. 27. 2020.

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