Since January 2025, the federal government has made numerous attempts to exert control over the administration of elections. These attempts have been almost universally rebuffed by the judiciary, in large part because of the basic fact that the Constitution gives states the primary responsibility for overseeing elections, subject only to regulations prescribed by Congress. The Executive Branch, including the President, has no stand-alone authority over the administration of elections in this country. Despite this clear constitutional framework, the Executive Branch has repeatedly attempted to insert itself into numerous aspects of elections by, for example, attempting to force states to turn over confidential voter information, investigating widely discredited claims of wrongdoing or fraud related to the 2020 presidential election through the seizure of ballots and subpoenas to election officials, and claiming to preempt state voting laws through Executive Orders and agency rules. 

With the midterm elections underway, many experts are anticipating additional forms of federal overreach in the coming weeks. Among other possibilities, these potential actions include: (i) federal troops, ICE agents, or other law enforcement personnel being deployed to voting locations; (ii) USPS interfering with mail voting; and (iii) federal law enforcement seizing ballots or voting machines prior to the certification of an election. While each of these actions is prohibited by federal law or outside the scope of permissible federal activity, it is reasonable to assume that not only will the Department of Justice fail to enforce the relevant laws, but also that the Department itself may be involved in or encouraging the violation of those laws. 

Given that, it is critical for states to recognize and consider the applicability of their own laws that prohibit this same behavior. Each state has laws that explicitly or arguably apply to the categories of anticipated activity described above. In almost all cases these state laws are not new and have been part of each state’s election code for many years. However, there is little precedent for applying these laws to federal officials. The reason for that is obvious: the anticipated activity of the federal government is unprecedented. The lack of prior enforcement or prosecution is not indicative of a lack of applicability. Instead, it illustrates just how important it is for states to review their own election codes and think critically about how existing law may be applied to the current moment.

With respect to troops or ICE at the polls, a few states directly prohibit any federal military presence near polling locations, while others simply prohibit military or law enforcement personnel from being deployed to the polls without defining who is explicitly covered by the prohibition. In addition, every state has laws that prohibit voter intimidation, and depending on the contours, these laws may also apply to federal troops or law enforcement. In some cases that may be because a state prohibits any person carrying a firearm or other weapon from appearing near a polling place, while in others it may be that any uniformed officer at a polling location is deemed to be inappropriately intimidating and therefore prohibited. While the contours of these laws may vary, in all cases the goal is to protect the right of voters to cast a ballot free from any intimidating presence. Each state should consider how its existing laws may apply to and therefore prohibit the deployment of federal troops or ICE at the polls in its analysis and related guidance. 

In terms of mail ballots, a number of states have laws that explicitly prohibit any person from knowingly delaying the delivery of a ballot. In most cases, these laws are written broadly, and presumably could apply to the delivery of a ballot from the state to a voter and from the voter back to the state once it has been completed. The latter application is particularly important this cycle since many states (some at the urging of federal government officials) now require that a completed ballot must be received by the time polls close on election day in order to be counted.

With respect to the seizure of ballots or voting machines, there are many state laws that may operate to prohibit this activity by federal officers during an ongoing election, but the most critical are the very specific laws that every state has regarding the chain of custody of ballots. These laws make clear that only certain election officials can have access to ballots both before and after each ballot has been cast and generally apply well beyond the timing of any recounts, contests, or other post-election processes. While the exact officials who can have access to ballots or voting machines do vary by state, federal law enforcement officials are uniformly not included, and these laws do not include any exceptions to those officials specifically noted. 

The California Supreme Court recently affirmed the critical role that chain of custody laws play, finding that the seizure of ballots by a county sheriff violated those laws and was, therefore, improper. While that case centered on the seizure of ballots from a past election and a county law enforcement officer, the conclusion and analysis provide an important roadmap for the upcoming election to counter the possibility of federal law enforcement attempts to seize ballots. Adherence to the chain of custody laws before an election has been certified is even more critical, and states should emphasize those requirements as they continue to push back against any attempts from third parties to seize ballots or voting machines and break that chain of custody. 

The applicability of any of the state laws described above, and the ability to enforce them, will depend on the exact nature of the actions taken by federal officials over the course of the next several weeks. But one crucial consideration is that, even though federal law contains many overlapping prohibitions, these state laws are enforced by state actors, rather than the Department of Justice. And while states prosecuting federal officials for violations of state law is always a complex endeavor, it is likely to be less complex in these cases. That is primarily because the anticipated activity also violates federal law, significantly weakening any claims of immunity by federal officials that are based on the argument that they are simply doing their jobs. These factors combine to provide an opportunity for a meaningful enforcement process, and while prosecution is often a last resort, it is still an important tool in the toolbox of reining in electoral misconduct.