Armed Agents at Polling Places: Arlington Sues DHS

A Northern Virginia county wants a federal judge to rule, before Nov. 3, that an 1865 law keeps armed ICE and FBI agents away from its voting sites.

Arlington County has sued the Department of Homeland Security and the Justice Department to keep armed agents at polling places out of its elections. The complaint, filed Oct. 20 in the U.S. District Court for the Eastern District of Virginia in Alexandria, asks for an order barring armed ICE and FBI personnel from Arlington’s polling places, early voting sites, ballot drop boxes and curbside voting during the midterm election, while Virginia’s early voting is already underway.

The suit does not point to a planned deployment in Arlington, as Patch noted; it targets federal officials’ public statements, which the county says amount to a policy. “Threatening to send armed agents to polling stations is unlawful,” County Board Chair Matt de Ferranti said in announcing the case. DHS answered that “ICE is not planning operations targeting polling locations” and conducts “intelligence-driven targeted enforcement,” a spokesperson told WJLA and NBC Washington. The Justice Department told WJLA it “has never said it would send federal law enforcement to polling locations” and called suggestions otherwise “fearmongering.”

Timing drives the case. In-person early voting in Virginia began Sept. 18 and runs through Oct. 31, with Election Day on Nov. 3, according to the Virginia Department of Elections, so any ruling has to come within days to matter.

The 1865 law at the center of the armed agents at polling places fight

The case rests on 18 U.S.C. 592, an 1865 statute that makes it a crime for any “officer of the Army or Navy, or other person in the civil, military, or naval service of the United States” to bring or keep “troops or armed men at any place where a general or special election is held, unless such force be necessary to repel armed enemies of the United States.” Violations carry up to five years in prison. The reference to the “civil” service is what lets the county argue the law reaches ICE and the FBI, not only the military.

Because Section 592 is a criminal law the county cannot enforce, Arlington sues under the Administrative Procedure Act, arguing that any policy allowing armed agents at election sites is contrary to law and beyond the agencies’ authority. It adds a Tenth Amendment claim that the policies intrude on state and local control of elections, and it cites a Virginia statute, Va. Code 24.2-604, that bars firearms within 100 feet of a polling place. Defendants include DHS Secretary Markwayne Mullin, Attorney General Todd Blanche and FBI Director Kash Patel.

The complaint builds its case from officials’ own words. It quotes Mullin saying Sept. 1 that “the only reason why we would be at polling places is if there is a threat to that polling place,” and White House press secretary Karoline Leavitt saying in February that she “can’t guarantee that an ICE agent won’t be around a polling location in November.” Those are the county’s selections, and the government is likely to argue they describe possible arrests tied to specific threats, not a deployment policy.

Hurdles before the merits

The first fight is likely to be over whether there is anything to stop. Arlington must show a concrete injury and a final agency action, and the government can point to its own disclaimers. The county’s answer is cost: it has run an emergency tabletop exercise, revised police Election Day procedures and assigned extra prosecutors to monitor polls, according to ARLnow and Patch.

Arlington is not alone. The League of United Latin American Citizens and other groups sued in Washington on Sept. 10 under the same statute, which The Philadelphia Inquirer reported has never been tested in court, and the NAACP and Democratic Party committees followed with their own suits, according to the Wisconsin Examiner and WJLA. Arlington’s is the first in the Eastern District of Virginia.

The suits sit beside a broader federal push on noncitizen voting. CBS News reported Oct. 21 that armed Homeland Security Investigations agents have visited homes in at least six states asking about immigration status and voting history, and that the Justice Department says 156 people have been charged with voting-fraud offenses since the administration began. Measured against the roughly 227 million registered voters CBS cited, that is fewer than one charge per million voters, a calculation from those reported figures. Earlier coverage of DOJ’s review of thousands of cases and the 28 California charges showed most defendants are green card holders, while Los Angeles County’s sample of a federal noncitizen list turned up U.S.-born voters.

For naturalized citizens, the practical question is whether the prospect of armed agents near a polling site keeps eligible people home. DHS has drawn its line at targeted arrests where a public-safety threat arises. Whether that line fits Section 592 is a question no court has answered, and the first answer may come from Alexandria within days, in a week when the D.C. Circuit also revived a challenge to ICE arrests at churches.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

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Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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