Martial Law And Elections: Can They Co-Exist?

The imposition of martial law typically involves the military supplanting civilian authorities, with laws being enforced by soldiers and policy decisions being made by military officers. In the United States, the Constitution does not define martial law or specify who can declare it, and there is no legal basis for the federal government to impose it. While several presidents and state governors have imposed or approved declarations of martial law, the Supreme Court has never explicitly held that the president can declare it. In the context of elections, martial law can pose challenges to democratic governance, limiting media freedom, political competition, and opposition participation. Historically, countries have rarely held elections during wartime, often postponing them until conditions allow for a free, fair, and secure electoral process.

Historical examples of elections during wartime

Conducting elections during wartime is a complex endeavour that poses significant challenges, such as security risks, displacement of voters, limited access to polling stations, and difficulties in ensuring democratic standards. While some countries have successfully held elections during conflicts, most have opted to postpone elections until conditions are more favourable for a free and fair electoral process. Here are some historical examples of elections that took place during wartime:

United States (Civil War, 1864 Presidential Election)

The United States has conducted elections during wartime on several occasions, including the War of 1812, the Civil War, and both World Wars. In 1814, during the War of 1812, General Andrew Jackson, who later became the seventh president, declared martial law in New Orleans to defend against a British invasion. Despite the conflicts, the US managed to hold elections during these periods, demonstrating its commitment to democratic processes even in challenging times.

Israel (1948 and 1973 Parliamentary Elections)

Israel has a history of postponing elections due to wartime hostilities, prioritising security and stability. The country's first parliamentary elections, scheduled for October 1948, were delayed until January 1949 due to the Arab-Israeli War. Similarly, in 1973, the Yom Kippur War led to the postponement of Knesset elections until December 31 of that year, after the war had concluded. More recently, in 2023, local elections were postponed twice due to a Hamas attack and subsequent military operations.

Afghanistan (2004 and 2009 Elections)

Afghanistan conducted elections in the midst of active insurgencies and widespread violence in 2004 and 2009. However, the electoral process was disrupted by security challenges and displacement of voters, highlighting the difficulties of holding free and fair elections during active conflict.

United Kingdom (World War II, 1945 General Election)

The UK postponed its scheduled 1940 general election due to World War II, maintaining a wartime coalition government. It was not until 1945, after the war had ended and military victory was secured, that a general election was held to restore democratic governance.

France (World War II, Postponement of Elections)

Similarly, France postponed its elections during World War II due to the German occupation and the collapse of its democratic government. The country prioritised stability and security during the war, resuming the electoral process once the immediate threat had passed.

The impact of martial law on democratic processes

The imposition of martial law typically suspends democratic processes, including elections, as civilian authorities are replaced by the military. Martial law is an emergency measure that allows the military to take control of a particular area, enforcing laws, making policy decisions, and trying accused criminals in military tribunals rather than civilian courts. This was seen in 1814, when General Andrew Jackson, who later became president, declared martial law in New Orleans to defend against a British invasion. Similarly, during the Civil War, President Abraham Lincoln's administration declared martial law in several states, suspending civil rights and allowing the military to arrest and confine those believed to be allied with the South.

In some cases, elections have been held during wartime, but they are often compromised by widespread violence, voter intimidation, and electoral fraud. For instance, Afghanistan held elections during active insurgencies, but they were marked by low turnout and legitimacy concerns. Iraq's 2005 elections were also conducted amid ongoing conflict, with insurgent groups threatening voters and attacking polling stations, leading to a contested outcome.

While martial law can be necessary in emergencies, it poses a challenge to democratic processes, including elections. The suspension of civil rights, media freedom, and political competition can hinder free and fair elections. However, each situation is unique, and the specific impact of martial law on democratic processes will depend on the context in which it is imposed.

Can the US President declare martial law?

The US Constitution does not define martial law, nor does it specify who can declare it. While several presidents and state governors have imposed or approved declarations of martial law throughout US history, the Constitution and federal law do not explicitly authorise the US President to declare it.

Some scholars argue that the President has the executive power to declare martial law, while others believe that congressional authorisation is required for the President to impose it in civilian areas. The Supreme Court has never specifically ruled that the President or federal government can declare martial law, but it has held that states can.

In 1866, the Supreme Court decided Ex parte Milligan, ruling that only Congress could substitute military tribunals for civil courts, and only during wartime. The Court also held that Lincoln's imposition of martial law by suspending habeas corpus was unconstitutional in areas where local courts were still in session.

Two federal laws impact the President's ability to declare martial law: the Posse Comitatus Act, which prevents the US military from participating in civilian law enforcement activities, and the Insurrection Act of 1807, which allows the President to deploy military forces to put down rebellions and assist local law enforcement with domestic violence.

In 2006, the John Warner National Defense Authorization Act was passed, giving the President the power to declare martial law and take command of National Guard units of each state without the consent of state governors. However, in 2007, the US Senate held hearings to reverse the 2006 amendments to the Insurrection Act, which gave the President new powers to use the military for domestic disturbances, terrorism, and insurrection.

The role of the military during martial law

During martial law, the military assumes a significant level of authority and jurisdiction over civilians in a particular area. This can include the suspension of certain constitutional rights and civil liberties, such as habeas corpus, as seen during the US Civil War when President Abraham Lincoln's administration declared martial law in several states. The military may also arbitrarily arrest and detain individuals, conduct trials through military tribunals, and enforce stricter laws and punishments.

The degree of military involvement during martial law can vary. It can range from a total takeover, where the military replaces the civilian government and its functions, to more limited interventions, where the military assists or supports civilian authorities in maintaining law and order. The latter scenario is often referred to as "using troops domestically in ways short of martial law," as authorized by statutes like the Insurrection Act and potentially Title 32.

The authority to declare martial law and the specific powers granted to the military during such times are often debated and contested. In the United States, the power to declare martial law has been exercised by presidents, state governors, and local military commanders under specific circumstances. However, the constitutionality of these declarations and the extent of their authority have been questioned. The Posse Comitatus Act, for example, prohibits federal military forces from engaging in civilian law enforcement activities without congressional authorization.

Legal precedent for martial law in the US

The US Constitution does not define martial law, nor does it specify who can declare it. While the Supreme Court has held that states can declare martial law, it has never explicitly held that the President can. Throughout history, martial law has been imposed at least 68 times, mostly in limited, local areas of the United States.

The first use of martial law occurred in 1814, near the end of the War of 1812. General Andrew Jackson, who later became the seventh President of the United States, declared martial law in New Orleans to defend against a British invasion. In 1815, a Louisiana court referred to Jackson's use of martial law as "trampling upon the Constitution and laws of our country."

During the Civil War, President Abraham Lincoln's administration declared martial law in several states to combat Union dissenters. In 1863, President Lincoln imposed Congressionally authorized martial law on Kentucky, Maryland, and Missouri, allowing him to suspend habeas corpus and civil rights throughout the United States. The Supreme Court later ruled that Lincoln's imposition of martial law (by suspending habeas corpus) was unconstitutional in areas where local courts were still operational.

In 1866, the Supreme Court decided Ex parte Milligan, holding that only Congress could substitute military tribunals for civil courts, and only during wartime. The Posse Comitatus Act, passed in 1878, forbids US military involvement in domestic law enforcement without congressional approval.

While the President has extensive authority to deploy the military domestically, this does not equate to a declaration of martial law. The Insurrection Act, enacted in 1807, allows the President to deploy the military to suppress insurrections, rebellions, or domestic violence to enforce federal laws and maintain public order. However, the National Guard can be called upon by both federal and state leaders during emergencies, and their deployment does not constitute a declaration of martial law.

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