This has been the clear law, and the respected policy of every presidential administration, for over a century.

Until now. 

Ahead of the midterms, top Trump Administration officials have publicly refused to rule out the possibility of sending federal agents to the polls. In September, Department of Homeland Security Secretary Markwayne Mullin claimed that immigration officers could be sent to polling places to “serve a warrant” as part of immigration enforcement operations or if “there is a threat” to those polling places, adding “we’ll be where we need to be.” 

“ICE isn’t there to patrol the polling places,” hedged Mullin. “We’re there to enforce specific threats.”

Federal Bureau of Investigation Director Kash Patelsimilarly said, “If there’s a reason to go there because there’s been a violation, we will, otherwise we won’t.”

It is clear to us, and to legal experts, that barring extreme circumstances, sending ICE or FBI agents to the polls would be flatly illegal under the 1865 law, and several others. As Daniel Caine, Chair of the Joint Chiefs of Staff, pointedly said this August, any request to send military troops to election sites would be an “unlawful order.” The same holds true for any other armed federal agents.