Bob speaks with Danielle Friedman, Legal Director of the State Democracy Research Initiative at the University of Wisconsin Law School, about the Initiatives’ recently published analysis of state criminal laws that could apply to potential federal government interference in the 2026 and future elections. They discuss laws, varying from state to state, that address deployment of military or other armed forces at the polls; actions to delay or disrupt the delivery of election mail, such as registration forms and ballots; and the seizure and removal of voting materials from election offices. Their discussion covers the likely federal government defenses against state criminal prosecutions of this kind.
Thumbnail: A Des Moines polling facility (Photo: Phil Roeder/WikiMedia Commons, https://commons.wikimedia.org/wiki/File:Des_Moines_Precinct_61_(49485944058).jpg, CC BY 2.0)
The publication under discussion:
“Can State Prohibitions on Election Interference Constrain Federal Actions?” by Danielle Friedman, Bryna Godar, and Emily Lau (State Democracy Research Initiative, University of Wisconsin Law School, July 17, 2026)
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts.
Bob Bauer: This is Bob Bauer with an edition of our video chat on Executive Functions, and I’m pleased to welcome Danielle Friedman, who is the legal director at the University of Wisconsin Law School’s State Democracy Research Initiative. We will be talking very specifically about state laws that may apply to prevent various forms of federal government interference in elections, a topic obviously being very much discussed right now as the midterms approach. But first, let me welcome Danielle.
Danielle Friedman: Hi. Thanks so much for having me.
It is a pleasure. And let me give you a brief introduction of Danielle. I mentioned that she’s currently director of this project at the University of Wisconsin.
She practiced for many years privately, and some of those years with me, in the areas of campaign finance, voting law, and election administration. She also was the chief of staff to the head of the Office of Intergovernmental Affairs in the White House. There, she was the primary point of contact with secretaries of state and state attorneys general.
Danielle now has been leading an initiative that is doing some extremely interesting work. Our focus today will be on a piece recently produced—we will have a link on the site to the piece—about potential state laws that apply to prevent federal interference in elections.
So, Danielle, let’s begin with the basics. The piece opens by noting that there are state criminal laws that would appear to apply in various ways to address federal government efforts to interfere in elections in three identified categories.
One would be the deployment of ICE troops or other armed forces to polling locations.
A second would be disruption of mail-in voting, potentially through the refusal of the United States Postal Service to pass mail on, under various criteria, to otherwise eligible voters.
And a third would be, as we’ve seen in Fulton County, Georgia, with respect to the 2020 election, the potential seizure of voting machines and ballots on some claim by the federal government that an election has been rigged or hacked, but otherwise can’t be counted upon to produce a reliable outcome.
So let’s begin, first of all, with the whole question of whose responsibility it is to police these matters. What is the constitutional allocation of authority for elections? Because I think we should set that up first.
Sure. And thanks again for having me. Excited to be here and chat about all of this.
So, as you mentioned, we sort of focus on three areas of anticipated federal overreach as we head into the November elections. I think that’s relevant because we’ve heard from various members of the federal government, from a lot of commentators, and even from court documents that these kinds of activities are things that it’s worthwhile to prepare for at this point in time. And so that’s why we’ve honed in on those three areas.
And just setting up some of the framework for this discussion, it has been very well established that the Constitution gives the states primary authority for administering elections. The federal government plays some role if Congress passes laws that preempt what states want to do in that space. But the executive branch, and the president in particular, don’t have any role in actually administering elections, despite this administration’s attempts to do a lot of things with respect to the election.
They play no role from a constitutional perspective. I think it’s also important just to note that much of the activity you just described is actually prohibited under federal law. There are federal laws that specifically prohibit troops or other armed forces from being at polling locations.
There are federal laws that prohibit any kind of intimidation or interference in the voting process for voters and election officials. But clearly, given the tenor of the administration’s approach here, there is legitimate worry that not only will the federal government not enforce those laws, but they may be overtly ordering violations of those laws.
Beyond that, there are DOJ practices that have served as an important guardrail in the past. The DOJ manual on federal election prosecutions has specifically stated that the government won’t interfere in an ongoing election. That manual no longer exists on the Department of Justice website.
So there’s fear that not only will there be non-enforcement of the law, perhaps overt orders to violate the law, and a real change in pattern from what the Department of Justice has done in the past when investigating election crimes, but that it will try to insert itself into an ongoing election, which would really change things.
And that is why turning to the states and thinking about what levers the states might have to stop some of this behavior in its tracks, and to ensure that everyone at the state level understands what the competing state laws are, is a really important thing for us to be doing at this time.
Let me ask you one quick clarification point. The president doesn’t have authority under the Constitution to make rules for elections. And the constitutional gap that this or any other administration might wish to use to fill the absence of that authority is the claim that it is enforcing federal law.
It gets involved with troop deployments, potential interference with the Postal Service’s delivery of mail ballots, or the seizure of machines, not because it claims it’s engaged in rulemaking authority—although this president has come close to making exactly those claims in the executive orders issued in March of two consecutive years, 2025 and 2026—but because there are federal laws on the books and the president is simply doing what a president with executive authority should do, and that’s enforce the law.
Is that a fair statement of where the executive branch would go in a constitutional contest?
I think that is a fair statement of where the executive branch might go in terms of its arguments for its own authority.
I think we’ve seen some of that begin to play out in court. For example, the Department of Justice is suing a number of states and demanding access to their voter rolls under a number of laws—the NVRA, HAVA, and the Civil Rights Act. We’ve seen the courts thus far universally not be sympathetic to those arguments and to reject them.
But I think that’s one indication that the federal government is beginning to test the boundaries of those laws in exactly the way that you described.
Okay, so let’s proceed to the state criminal law landscape. Give us examples of the types of state criminal statutes, and the variations in them across the country, that might conceivably apply if the states were to resist federal government interference in the categories we’ve been discussing.
Sure. So let’s start with troops or ICE at the polls, which is something that people talk about very regularly as a concern for the November election.
A limited number of states actually have laws on the books that specifically address federal law enforcement or federal military presence. Those laws are fairly easy to understand. In states like Pennsylvania and California, they simply say that law enforcement presence, including federal law enforcement presence, is prohibited at the polls.
Many more states have laws that are a bit broader and generally prohibit any military presence or law enforcement presence at the polls, with some exceptions if local or state election officials ask them to come in response to a particular disturbance.
Now, those laws are quite broad. They don’t necessarily define military or law enforcement presence as either state or federal officials. I think this is an important time to recognize that these laws, in many instances, have not been applied to federal officials in the past.
So there isn’t a lot of precedent here. The reason for that is fairly obvious: the level of federal overreach being considered here is itself unprecedented. These laws simply have not had occasion in the past to be considered as they apply to federal officials.
But this moment, and the anticipation of the November election, demands a rethinking of some of these laws and perhaps some clarity around how they might apply. It’s not because they don’t apply to federal officials that they haven’t been used that way in the past; it’s because the level of activity from the federal government is so unprecedented and unlike anything we’ve seen before. Thinking about these laws in a slightly different way is therefore a necessary thing for the states to be doing. That will be true of almost all of the categories of state law I describe here.
So that leads into another category of laws that may apply to troops or ICE being deployed to the polls. Every state has some form of voter intimidation statute intended to allow voters to cast their ballots free from an intimidating presence.
Some of these laws are extremely broad. Any kind of intimidating presence may be prohibited, either inside or outside the polling location. Those laws could certainly be applied to the deployment of troops or ICE at the polls.
Other laws are much narrower. For example, a number of states now prohibit firearms from being carried near or outside a polling location. Sometimes there’s an exception for certain forms of law enforcement; other times there isn’t.
This would be another example where, when states wrote these laws, they weren’t really thinking about federal officials or federal law enforcement presence at the polls.
That doesn’t mean the laws don’t apply. It may simply mean there’s an opportunity for, for example, a state’s attorney general to clarify in advance of November how they might apply to federal officials, because this would be a case of first impression.
So those are the types of laws that may apply to troops or ICE being deployed at or near polling locations.
So let’s move on to the Postal Service.
Sure.
The delivery of mail—election mail, either mail generally or election mail in particular.
Yeah. So, at the federal level, there are a number of statutes that apply to mail generally. At the state level, a number of states have specific laws that make it a crime to knowingly delay the delivery of a ballot.
Unlike the laws we talked about with respect to troops or ICE at the polls, these laws are actually relatively uniform. When a state has these laws, they very basically prohibit any person from knowingly delaying the delivery of any ballot. They’re quite broad.
There’s not a lot of application of these laws in the past, but presumably, if they apply to any person, that would include, for example, a Postal Service carrier in the state.
And if they apply to any ballot, they may include the delivery of the mail ballot in the first instance to the voter, and could also include the delivery of the mail ballot from the voter back to the local election official or secretary of state.
As we know, this administration has been very focused on mail ballots, has been very focused on the timing and delivery of mail ballots, particularly the receipt of a mail ballot by Election Day.
It will be critical for those ballots not to be delayed in order to ensure that eligible voters casting them lawfully under their state’s election laws have confidence that their ballot is not going to be delayed for any reason, and that it will be received back by the election official in a timely fashion.
And so knowing and understanding that states have these criminal laws on the books is really significant. It’s actually a more specific law than the federal law that would apply, which is important for folks to understand.
Okay, so let’s move to the third category: seizure of machines and ballot materials. Talk about state criminal laws that could conceivably apply there if the federal government were to do in this election what it has already done once in Fulton County, Georgia, with respect to the 2020 election.
Exactly. Fulton County serves as the main example, but I think it’s also important for folks to remember that this was a topic of discussion by the president and the administration in 2020, when he was in office. He has since said that he regrets the fact that he didn’t seize ballots during the 2020 election.
We know there were executive orders drafted to that effect at the time. So again, this is a very legitimate thing for people to be worried about happening, especially in the wake of Fulton County.
Here, I think it is critical to understand that every state has very specific laws about the chain of custody of ballots, voting machines, and other election materials, as well as possession of those materials throughout the election process.
It actually starts, in many cases, before the election—covering where ballots are kept before they’re voted, how they are handled after they have been received back, and then throughout the post-election process, and for a period afterward, to ensure that recounts can take place, election contests can take place, and all of the state-law mechanisms for ensuring free and fair elections can function as intended. Throughout all of that, custody of the ballots is maintained by state and local election administrators.
Again, these laws vary slightly from state to state. In some states, the ballots are kept with the secretary of state. In others, they remain with local election officials for a period of time before they’re transferred.
The amount of time election officials are required to retain ballots, voting materials, or voting machines differs by state. Likewise, when and how voting machines are tested, where they’re kept, and the particulars of those procedures vary.
But the key point for these purposes is that the underlying goal of all of these state laws is to keep possession of all election materials—including the ballots themselves—in the hands of the designated election officials, regardless of what is happening in the post-election process.
During a recount, during an election contest—all of those things may play out—but possession uniformly remains within the state election administration infrastructure.
I think that’s really important. Any attempt to remove those materials from that custody is criminalized under most state laws.
There are no exceptions. There are no exceptions for law enforcement. There are no exceptions for any other persons. So certainly the assumption is that the federal government would be included within those “no exceptions” provisions.
So let’s then take up what the federal government is going to say in response to threatened or actual criminal prosecutions under these statutes, which would be unprecedented.
The federal government is certainly going to argue—so tell us how it would most likely argue it—”You can’t do that.”
Absolutely. I want to say first, recognizing that prosecution is one tool in the toolbox, that it doesn’t necessarily solve the problem in real time.
We can talk about some other options these laws may give the states for preparation. Once we get to the point of prosecution—which I do think is still important—it is important to hold people accountable and preserve order for future elections. But, recognizing that it probably wouldn’t happen very quickly, it could take some amount of time after the election. And the state prosecution of federal officials is always a complex thing to consider.
But I think there are a number of reasons why, in the election context, it may be significantly less complicated. That gets back to some of what we discussed at the beginning about the federal laws that already exist.
Almost all of what I just described in terms of the state criminal laws mirrors prohibitions in federal law.
Federal law already prohibits troops or armed personnel from being deployed to the polls. State law has a corresponding prohibition, whether it directly addresses federal officials, whether it’s a broader prohibition, or whether it’s a prohibition on voter intimidation. Both federal and state law prohibit the same activity.
That means some of the defenses the federal government would articulate in response to state prosecution are significantly weaker in this context.
For example, the federal government may argue that it is entitled to Supremacy Clause immunity, which means the states can’t interfere with the normal responsibilities of a federal official acting pursuant to authority granted under federal law.
It’s very difficult to argue that Supremacy Clause immunity exists in the case of troops or ICE being deployed to the polls because that activity is itself prohibited under federal law.
So the argument that a federal official is exercising authority granted under federal law falls apart because they actually are not permitted to do that under federal law.
Those arguments will certainly be made. Of course, the federal government will try to make them. But they’re significantly weaker here because of the prohibitions that already exist in federal law.
That puts this in a different context from some other circumstances that have recently come up—for example, in the immigration context—where the federal government argues that it has broad authority.
In the election context, the federal government really doesn’t have that broad authority. The Constitution gives primary authority to the states and gives Congress a very specific role.
Beyond that, federal law itself prohibits the activity we’re talking about.
So those kinds of defenses tend to fall apart in the election context. That doesn’t mean they won’t be raised, and it doesn’t mean they won’t present a challenge. But it does mean that states are on better footing than they otherwise might be, given how elections are structured under the Constitution and in practice.
So there’s believed to be a plan afoot, say, to deploy ICE agents or deploy the military. States are preparing to say—or do say—”We have state laws that prohibit that, and there are criminal consequences.”
Then the president says, “Well, then I suppose I’ll have to invoke the Insurrection Act.”
That’s emergency authority. The statute is written appallingly broadly. Of course, nobody knows precisely how a legal contest over the president’s authority under that statute would be resolved in any particular set of facts.
Do you have any thoughts about how that might play out?
Well, I certainly think it’s possible, and it certainly seems likely, that the president might be looking for any opportunity to deploy that argument.
I think the specific criminal prosecutions we’re talking about from the state side would likely come much later in time and therefore are unlikely to collide directly with that.
Now, could states talking about these ideas potentially bolster his argument that such action is necessary? Maybe.
But I think these issues are of a different scale and timing, making a direct collision unlikely.
I would also point out that, very recently, the Civil Division of the Department of Justice sent letters to all of the states threatening federal criminal prosecution if any noncitizens were to vote in their elections. I think, if you’re the states, you want to understand that you have some things to throw back at the federal government on that front.
It’s not necessarily that any states are looking to do this or are being encouraged to do this. Rather, it’s about understanding the tools they have available and recognizing that those tools exist not only for purposes of prosecution but also to reassure voters.
For example, voters should know that there are state laws intended to ensure that their mail ballot is going to get back to the secretary of state or local election administrator on time so that it can be counted—that there’s not a sense that nothing can be done about interference.
So I think having the conversation about how these laws might apply is important not only for enforcement reasons but also for helping the general public and voters understand that there are protections available to them in the face of rhetoric from the federal government about prosecuting local election officials or otherwise throwing wrenches into the election process.
Well, the context for this conversation is, as you said at the very beginning, one in which issues are being raised and statutes are being uncovered, as your study does. There are a range of them in a good number of states that apply to all of the threats we’ve been talking about.
And, of course, all of these complicated issues arise in the context you noted earlier, which is really quite extraordinary.
In the modern era, we haven’t seen anything like it.
Absolutely not. And I think that’s part of what we hope our report uncovers for folks: that there’s probably a lot of education to be done at the state and local level, even just about the existence of these laws and how they may apply to the very real circumstances election workers are likely to face in November.
It’s important to ensure that those folks understand what the state laws are—not just election officials, but state and local law enforcement as well—so that they understand there are state laws that may apply to these situations and have very real, concrete guidance about how to approach them if and when they occur in real time.
I don’t think it’s unreasonable to suggest that a local election official may not be familiar with many of these laws as they might apply to the federal government, and may not be exactly sure whom to call, what the appropriate response would be, or who in the chain of command needs to be aware of these issues.
So using these laws as an opportunity to revisit some of those protocols, rethink how they may apply, and educate both law enforcement and election officials at the state and local level is another thing I think states can really do here.
Even in states that don’t have a specific law addressing federal law enforcement, it’s worth thinking about how existing state laws may apply, what state and local officials should do if ICE shows up at a polling location, who the first call should be, what the legal response might be, and how that response should be coordinated.
Hopefully, this report, along with other critical work that people are doing, will serve as a jumping-off point for many of those conversations.
A very interesting piece. And thank you again, Danielle Friedman, legal director of the State Democracy Research Initiative at the University of Wisconsin Law School. Thank you very much for being here.
