39

In the news, it has been said that still-president Trump could invoke martial law in order to help him overturn the election (CNN, Business Insider)

Flynn had suggested earlier this week that Trump could invoke martial law as part of his efforts to overturn the election that he lost to President-elect Joe Biden

In what way would that help

  • Is it possible to do that legally?
  • Would that be likely to succeed?
  • 23
    Legally, Trump can’t impose martial law in the first place. So there’s no point asking how doing so could legally help him to overturn the election result. – Mike Scott Dec 21 '20 at 11:51
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    I'm very surprised that none of the answers discuss the Insurrection Act of 1807. If you search the internet for "insurrection act martial law", you end up deep in very right-wing rabbit holes. It appears to be a very active discussion on that side of the, uh, fence? As Wikipedia describes it (en.wikipedia.org/wiki/Insurrection_Act_of_1807), it "provides a "statutory exception" to the Posse Comitatus Act of 1878". The last time it was invoked was in 1992, by George HW Bush in response to the Rodney King riots in Los Angeles. – Flydog57 Dec 22 '20 at 3:59
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    @Flydog57 Because it's irrelevant. If Trump decides to pull the trigger, it won't matter how many laws he does or does not attempt to hide behind - everyone knows his true motivation. Granted, using a law could garner him support from the type of cretins who ordinarily would not consider being involved in a coup due to the political fallout, but those are the same kind of people who will likely support Trump regardless of what he does. – Ian Kemp Dec 22 '20 at 17:17
  • If he didn't mind risking a new civil war, martial law might allow him to do almost anything. Why? – Robbie Goodwin Dec 24 '20 at 0:27
  • Trump can't do it. He's never threatened to do it. Just more media BS trying to get people all stirred-up. Contrary to what the media would have you believe, the vast, vast majority of Trump supporters would NOT condone that action. – mikem Dec 30 '20 at 7:36
92

Mobilizing the army to change the outcome of an election is an established practice that has a long history across the world. It is called a coup.

During a coup it is common practice to "modify" the courts, which subsequently rule that the actions were indeed legal.

At this point there is a 0% chance of success of such a coup, and about a 0% chance of it being attempted. Because the accusations of election fraud are transparent lies*, and some of the elections in question were run by Republicans, attempting to overthrow the election with a military coup would likely spilt the Republicans into multiple factions, at which point they would be far too weak to succeed at taking and maintaining power by force. And to revisit the question of legality: Coups that fail are ruled illegal by courts.


Instead, the threat of a military coup, worded in a way that still allows for plausible deniability, serves to further polarize the country, which is in line with many similar such actions throughout Trump's term in office.


*The accusations of widespread voter fraud to steal the election from Trump and give it to Biden have been established as false by a multitude of fact checkers, courts and the government of the United States of America. If you know that this is incorrect, don't write a comment just claiming that evidence exists. Please provide a link to the actual evidence of widespread voter fraud to steal the election. Then send it to the White House because they are desperately looking for evidence to support their claims. Related: Russel's teapot.

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    I deleted the discussion about voter fraud allegations. Please limit your comments here to suggesting improvements for this answer. Discussing the election (results) may be done in chat. – JJJ Dec 21 '20 at 1:15
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    I think you need to clarify a point. By "0% chance of it being attempted", do you mean 0% chance that Trump would give the orders, or that the military would actually obey the orders? Because at this point, I suspect he just might be delusional enough to think he could get away with it. – jamesqf Dec 21 '20 at 3:12
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    I'm fond of a line from The Martian, "Luckily, in the history of humanity, nothing bad has ever happened from lighting hydrogen on fire." Some of the worst episodes in our nation's history involved bringing the military to bear against our own people. "Luckily, in the history of the U.S., nothing bad has ever happened from turning our own military against ourselves." – JBH Dec 21 '20 at 20:22
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    I would put the probability at low but not 0% and the reasons have almost nothing to do with the truth regarding election fraud which is often insufficient to prevent a coup. Far more relevant is the history of U.S. military non-intervention in elections, recently affirmed this election cycle by many military leaders and by lack of sufficient GOP support. Courts would rule against it, but courts are often irrelevant in a coup which often sees as an objective eliminating the authority of civilian courts that have ruled against the plotters. – ohwilleke Dec 21 '20 at 23:03
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    @Peter You should probably also mention that the military, not just the GOP, would be divided in acting on an order that clearly breaches the Constitution. It would be an enormous mess - and messes are situations that Trump revels in. – Ian Kemp Dec 22 '20 at 17:14
29

This was addressed in an open letter to General Milley, Secretary of the Joints Chiefs of Staff published on August 20th in Defense One by John Nagl, a retired army officer and a veteran of both Iraq wars and by Paul Yingling, a retired US army lieutenant colonel who served three army tours in Iraq, another in Bosnia and also served in Desert Storm.

They wrote:

As Chairman of the Joint Chiefs of Staff, you are well aware of your duties in ordinary times: to serve as principal military advisor to the President of the United States, and to transmit the lawful orders of the President and the Secretary of Defense to combatant commanders. In ordinary times, these duties are entirely consistent with your oath, "to support and defend the Constitution of the United States against all enemies, foreign and domestic ..."

We do not live in ordinary times. The President of the United States is actively subverting our electoral system, threatening to remain in office in defiance of our Constitution. In a few months time, you may have to choose between defying a lawless President or betraying your Constitutional Oath. We write to you in assist you in thinking clearly about that choice. If Donald Trump refuses to leave office by the end of his constitutional term, the United States military must remove him by force, and you must give that order.

Due to a dangerous confluence of circumstances, the once unthinkable scenario of authoritarian rule in the United States is now a very real possibility. First, as Mr. Trump faces near certain electoral defeat, he is vigorously undermining public confidence in our elections. Second, Mr. Trump's defeat would result in his facing not merely political ignominy, but also criminal charges. Third, Mr. Trump is assembling a private army capable of thwarting not only the will of the electorate but also the capacities of ordinary law enforcement. When these forces collide on January 20th, 2021, the US military will be the only institution capable of upholding our Constitutional order.

They add

Mr Trump is following the playbook of dictators throughout history. He is building a private army answerable only to him. The Presidents use of militarized Homeland Security agents against domestic political demonstrations constitutes the creation of a paramilitary force unaccountable to the public. The members of this private army, often lacking public insignia or other identification, exist not to enforce the law, but to intimidate the President's political opponents ...

More,

America's political and legal institutions have so atrophied that they are ill-prepared for this moment. Senate Republicans, already reduced to supplicant status, will remain silent and inert, as much to obscure their complicity as to retain their majority ...

And then they expand upon what they first say:

As the senior military officer of the United States, the choice between these two options lies with you. In the constitutional crisis described above, your duty is to give unambiguous orders directing the US military forces to support the constitutional transfer of power. Should you remain silent you will be complicit in a coup d'état.

They then quote the oath of office taken by the Mark Milley on ascending to this office, and end on:

The fate of our Republic may well depend upon your adherence to your oath.

Given this warning by two army officers, veterans of both Iraq wars, for Trump to issue a call for martial law now, after a defeat in the elections and which he refused to concede and which the Republicans contested in the courts (with over fifty cases thrown out) would be a further step in transforming the USA from a democracy to dictatorship. As they advise this requires resistance at all levels.

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    Amazing that this was written 4 months ago, as it reflects quite well what is happening now... – e2-e4 Dec 21 '20 at 6:48
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    The quotes have numerous spelling errors in them. Are these in the originals, and so perhaps should have [sic] added by them, or were they introduced by your transcribing them? – zibadawa timmy Dec 21 '20 at 9:52
  • @Zibadawa timmy: You can check it against the original that has been linked in - if you are interested... – Mozibur Ullah Dec 21 '20 at 10:56
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    @Mark Morgan Lloyd: Re "both authors were short colonels", what does their height have to do with anything? (Yes, I know you mean lieutenant colonel, but not everyone is familiar with US military slang :-)) – jamesqf Dec 21 '20 at 16:57
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    @e2-e4: That's because Trump's behaviour is following a very familiar pattern. The US may never have been through this, but lots of other countries have. I'd hope that a combination of US institutional strengths and his own moral cowardice mean that there won't be an attempt at a coup, but there's no certainty at this time. – John Dallman Dec 22 '20 at 21:30
18

Those of us who have lived our lives in (more or less) stable democratic regimes have a difficult time wrapping our heads around this kind of maneuver, so allow me to make a couple of difficult points clear:

Martial law is by definition the application of state violence to suppress opposition

A regime imposes martial law when it is incapable of achieving some domestic goal through normal political or legal channels. Martial law uses physical force to smother the legal rights, privileges, and freedoms of the citizenry as a whole so that the regime can achieve some goal it cannot otherwise achieve. In democratic nations the idea of martial law is sometimes floated — always by far-Right voices — when there is a potential for widespread violence (riots, putative insurrections, authority-vacuums caused by natural disasters, etc), but it is rarely implemented as policy.

Martial law automatically creates a crisis of legitimacy, because it is expressly and invariably used to suppress opposition to the standing regime. Even dictatorial and autocratic regimes use it sparingly because they want (as much as possible) to give an outward appearance of legitimate governance.

Martial law is by definition extra-legal

As noted above, martial law is only invoked when normal political or legal channels fail to produce the outcome the regime desires. As a result, it has no a priori 'legal' standing, only ex post facto standing. In other words:

  • If the regime succeeds in its goals, it will (invariably) declare the act of martial law to be legal and legitimate
  • If the regime fails in its goals, the act of martial law will (invariably) be cast as illegal and illegitimate.

Martial law is one of those gambits where the victor (ostensibly) gets to write history. It isn't meant to be moral or legitimate as an act; it's more in line with the old saw that it's "easier to ask for forgiveness than permission."

Martial law, by definition, is anti-democratic

A democratic regime invests power in written documents (constitutions, laws) and established institutions (practices like voting, institutions like congresses, habits like the smooth transfer of power, etc). It does this explicitly to prevent power from being invested in individuals or groups, because investing power in individuals or groups leads toward autocracy. Martial law undercuts written law and established institutions to serve the interests of a single individual or group. The moment martial law is put on the table we should stop thinking about fine democratic niceties like "is it legal?", "is it legitimate?", or "is it a successful strategy?". We have left the realm of democratic governance, and entered a world where political issues are decided by fiat and raw force. The rules of democracy no longer apply. The only question we have left to ask is whether we will allow the regime to get away with it.

  • I don't see anyone else having mentioned it yet so I'll add it: while I'm quite certain that any imposition of martial law in current circumstances would be a naked power grab, martial law has been imposed at several points in US history, usually during a breakdown in civilian institutions. – Jared Smith Dec 22 '20 at 14:03
  • @TedWrigley I suppose part of the problem here is that the term "martial law" does not seem to be defined in US law. Suspension of the writ of habeas corpus and the insurrection act are as close as it gets. To the extent that someone could succeed in imposing "martial law" in violation of statute law or the constitution, therefore illegally, is the term "martial law" actually correct? In that case it would not be lawful, so it would be more accurate to call it "dictatorial coup d'état." – phoog Dec 22 '20 at 20:11
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    @phoog: If someone imposed martial in violation of civil statutes and the constitution, that would be a coup d'état. But that's not what 'martial law' is normally taken to mean. Martial law generally means using military force to impose or restore order in a region where civilian law has collapsed or is otherwise non-functional. Martial law is generally conceived of as a stop-gap measure to re-establish civilian law where it has become disestablished. In the ideal, it's the moral equivalent of a UN peace-keeping force: soldiers who keep the peace until local gov recovers. – Ted Wrigley Dec 22 '20 at 20:34
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    @phoog: A coup d'état is illegal in the sense that it intentionally breaks the established legal structures to impose something else. Martial law is merely extra-legal; something that operates outside the context of civil law with no ultimate goal of revoking or replacing civil law. – Ted Wrigley Dec 22 '20 at 20:40
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    @phoog: The main point is that under civil law, legal decisions are made by a process that is set within and bounded by structures, laws, institutions, documents, precedents, etc. Martial law isn't. At best, martial law responds to 'battlefield' rules of military conduct; at worst, it rests entirely on the conscience and discretion of individual commanders. It's a reversion to the type of law found in feudal aristocracies. That's why I say it is explicitly extra-legal. – Ted Wrigley Dec 22 '20 at 20:42
13

In short no.

The "theory" of martial law is that the President is charged with upholding the constitution and executing the legislation passed by Congress in accordance with the Constitution. Normally this is done by actions such as executive orders, or by directing various agencies of the federal government to spend their money in a particular way.

In extreme times, the President can use the federal army as a tool to uphold the Constitution and execute legislation passed by Congress. So, for example, if there were a major Earthquake in L.A. it might be impossible for the regular emergency services to provide 911 services. The President could order the Army take a role in ensuring that the citizens and emergency workers were safe. This is all legal and proper providing there is Congressional support (ie an act of Congress explicitly authorising it).

The important legislation is the Posse Comitatus act, that prevents peacetime domestic deployment of the army without Congressional approval.

So I suppose IF Congress approved, the president could order the Army to detain those Governors and others who have "faked" the election and bring them for federal trial, since the diverse States don't seem able to do this themselves... But honestly this is too far fetched even for fiction.

There is no way that the Congress is going to vote for a coup.

So such an order would be illegal.

  • 6
    The President would need more than "Congressional Support"; the Posse Comitatus Act requires an explicit Act of Congress. This is beyond doubt, as an explicit exception to this rule existed between 2006 and 2007. – MSalters Dec 20 '20 at 22:29
  • Of course, that all assumes that a SCOTUS now principally composed of (hard) right justices who favor an authoritarian presidency doesn't simply strike down the act when asked (possibly under threat of tanks etc.) – zibadawa timmy Dec 21 '20 at 9:56
  • "diverse states", "The many different states". It's meant to sound a little like the phrasing in the declaration of independence. – James K Dec 21 '20 at 12:58
  • Most marital law orders are illegal. – ohwilleke Dec 21 '20 at 23:04
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    @ohwilleke my wife agrees (spelling)! – phoog Dec 22 '20 at 20:04
9

In no way could Trump try to use the military to alter the outcome of the election.

Our military swears allegiance, not to the president, but to the US Constitution. There is no provision in the US constitution for a president to alter the outcome of an election.

Every serving soldier knows this. They are reminded of this on a regular basis.

Any such attempt would be rejected as an illegal order.

  • 18
    An oath didn't help with holding an honest impeachment hearing, and supposedly Senators are the best of us. Attacking peaceful demonstrators for a photo op also is an illegal order, and there were plenty of people willing to join. Nevertheless, I admire your optimism and want you to be right. – Peter Dec 21 '20 at 8:16
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    Saying it is so is one thing. Demonstrating that this is case is another. – ohwilleke Dec 21 '20 at 23:05
  • You're welcome to join the military and see for yourself... if you make it through basic training. – tj1000 Dec 24 '20 at 17:15
  • "Any such attempt would be rejected as an illegal order": by those who both recognize it as illegal and have integrity. That surely isn't everyone. The question would be just how many people do? – phoog Dec 25 '20 at 3:36
  • To you obviously non military people: General/flag rank officers are expected to validate any order as legal or illegal, and are extensively schooled in what is legal or illegal. It is one of the reasons the US has not had a military coup. If this comes from the president, the Joint Chiefs will validate that order, or reject it. So far, that has not happened, b/c presidents don't give illegal orders. But, the US military is prepared to refuse to follow a presidential order, if it is not legal. They swear allegiance to the constitution, not the president. – tj1000 Dec 27 '20 at 4:58
5

(Since my comment was deleted, presumably because it was an answer): in practical terms, given the current (respect for democracy) culture in the US army, it seems highly implausible such a maneuver could succeed, even if it were legal somehow (which it probably isn't, but I don't want to delve on the legality of something implausible):

Secretary of the Army Ryan McCarthy and Army Chief of Staff Gen. James McConville didn't single out Flynn directly, but did decry his actions with a Friday statement. "There is no role for the U.S. military in determining the outcome of an American election," the leaders affirmed.

Gen. Mark Milley, chairman of the Joint Chiefs of Staff, made a similar point last week. "We have established a very long 240-year tradition of an apolitical military that does not get involved in domestic politics," Milley told NPR amid right-wing calls for the military to overturn the election.

I mean, sure, Flynn is himself former army brass, but it seems unlikely there are "enough Flynns" in the army, or that enough could be found on short notice to support such an approach that is by most accounts a coup.

N.B. to give the veneer of legality, apparently:

Trump, in any case, would need congressional approval to invoke martial law, according to a study earlier this year by the Brennan Center for Justice.

I couldn't find that exact study, but a CRS report on the Posse Comitatus Act notes that while the act itself has quite a few vague areas (e.g. it doesn't explicitly apply to the Marine Corps or to the National Guard) and there's not much jurisprudence on it, these issues have been supplemented by numerous DoD internal regulations, so the unreserved participation of the latter seems necessary for such actions to succeed.

3

The first step is to declare the election fraudulent. The second step is to demand a "re-do". What next comes next depends on just how the election is re-done.

The Republican party can be classified as being in four main camps. There's the ones who are actively upholding the rule of law and opposing Trump. There are the ones who are not saying anything, and perhaps participating in Trump's agenda somewhat, out of fear of the consequences for standing up to him. There are those who have been bought into Trump's propaganda and honestly believe that the election was stolen. And there are those who are fully aware this is a scam, but are willingly going along with it because they see it as an opportunity to advance their interests.

How a "re-do" of the election proceeds depends on how much influence each of these groups have on it. The fourth group will be pushing voter suppression to the extreme, and if that's not enough to swing the election their way, they quite possibly will simply engage in fraud. The third group will largely go along with anything the fourth group can frame as fighting fraud. Much of voter suppression will fall in that category, and even creating fraud by Republicans can in many cases be twisted into fighting fraud by Democrats. The third group will be faced with a lot of cognitive dissonance, which in many cases they will have to resolve by either moving to the first or fourth group. If the fourth group can sideline the first group, cow the second group into going along, and manipulate the third group into serving their agenda, they may be able get the election to give the "correct" result, allowing Trump a patina of legitimacy.

On the other hand, if the third group are the ones running the show, they may buy into the fourth group's propaganda so much that they honestly believe that if they simply run the election in a completely "fair" manner, then Trump will win, and be surprised to find that Trump still loses. If the first group can take control of the re-do and assure the second group that they can act with integrity without too much risk, then they may be able to keep the election result from changing.

Where martial law comes in is that it allows Trump to sidestep what he calls the "deep state" and other people call "basic democratic institutions" and replace it with a top-down structure largely dictated by him. The top would be largely the fourth group, the middle the third group, and the bottom the second group. The first group would be declared incompetent/corrupt/treasonous and removed from their positions. If it comes to that, whether it succeeds depends on how much Trump can establish that hierarchy. Trump has exhibited incompetence in a wide range of fields, and there's little reason to think that pulling off a coup would be an exception.

There's also the question of how far non-Republicans and the first group will go to oppose this. They seem to have rolled over on the grabbing people off the street in Portland. The courts would almost certainly declare this illegal, but if Trump sends federal officers to carry out his orders, injunctions won't do anything unless anyone stands up to enforce them.

Also, it's not clear how much of Trump's campaign against the election results is actually directed towards overturning it, and how much of it is motivated by other concerns, such as radicalizing the base for Georgia's run-off, scamming more money from the third group (Trump has raised millions of dollars off of this), or just feeding Trump's ego.

As for legality, it would violate standard legal principles, but it is generally accepted that legal principles can be ignored in "special" cases. The Japanese internment camps, the draft, and "ceremonial deism" are all examples of the letter of the law has been ignored in favor of the alleged "spirit". And as Peter points out, if Trump succeeds in destroying the current democratic infrastructure, he can have it retroactively declared legal.

  • 1
    This might be clearer if these groups had names rather than sequence numbers. – Jontia Dec 22 '20 at 8:03
3

The power of any and all law is underpinned by and derived from the force with which it is enforced - predominantly the police and prison system.

Martial law means direct military control. Since the army is better equipped than the police, it usurps the capacity of the police to enforce the law, thereby usurping authority of the courts to enforce law. Once in place, this gives power to whomever controls the army to issue whatever edicts they may dictate, knowing all such commands may be enforced by the full power of the army. So is it legal? Well, one might say once it happens the old law is no longer the law - it's the new law now, and by that law, yes, it's 100% legal.

But this only holds, provided the military have the appetite to use (probably lethal) force to wrest power away from the police. This appetite, requires both a chain of command, and troops on the ground, willing to execute the dictator's commands. The chain of command (generals etc.) may choose not to transmit the orders down to troops, and troops may elect not to execute same orders by shooting, beating, capturing & imprisoning protestors, police, judges who stand up against them. Their reluctance may arise out of allegiance to the prior regime (e.g. democracy) or out of fear of the dictatorship losing power, leading to their trial for treason.

This reluctance of the military to execute their orders played out on June 5th 1989 in Tianenmen square, where tank man famously stopped a column of tanks. But the Chinese leadership made the astute move of drafting in Chinese troops from remote rural regions knowing they were from different ethnic groups to most in Beijing and would be less sympathetic to the protestors' cause. SO while there was some dissent from soldiers, sufficiently many had no quarms shooting protestors that the pro-democracy protests were put down.

If we now ask whether a president of the USA would be likely to succeed in this endeavour: This will depend upon

a) the allegiances of the troops and their commanders when called upon to do so, and

b) the will of the electorate to sustain deaths in resisting it.

I don't know enough about the precise allegiances of the US armed forces to comment on this, but it's plain that the electorate is sufficiently divided that, especially with so many guns in the country, there would be civil war. On this basis, it seems reasonable to speculate that the vast majority of army commanders would not want to be responsible for triggering civil war and would therefore put their heads together and find a way to support the status quo, i.e. of the courts and police remaining in control of the law.

-4

There are several states where he alleges election fraud, as well as illegal election processes (court ordered election changes that violate election laws of those states).

Martial law could in theory be used to force revotes in those states, that would then be considered legal.

But at the moment it is really just political theater, no different from the security theater that is the TSA or the political theater that was the objection to voting for/against a Supreme Court nominee before an election, it’s just something done to make a political point.

But what makes it really terrible in my opinion is that it’s too late for it to be useful either in itself (martial law and a revote in the states that violated state laws, would have have to have happened immediately, preferably before the voting was finished to be worthwhile) or as political capital for some goal. Unless that goal is to get Congress to demonstrate their power, it’s simply too late for it to have any effect, as he will be out of office.

  • Why is this getting so many downvotes? – Acccumulation Dec 21 '20 at 20:10
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    Second paragraph, plus reliance on personal opinion. – ohwilleke Dec 21 '20 at 23:07
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    @Acccumulation I haven't down voted, but I image the problem is the false equivalence between voting against a Supreme court justice ( which is a reasonable normal political position) and threatening military force to disenfranchise millions of your own citizens (which is not). – Jontia Dec 22 '20 at 6:53
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    RE "But what makes it really terrible in my opinion is that it’s too late for it to be useful": Until this point in the answer, the answer seems to focus on addressing the question about why Trump might think martial-law could be potentially useful in a bid to overturn the election. But that line suddenly changes the tone of the answer if read as suggesting that the problem with this scheme is it wasn't enacted sooner. – Nat Dec 22 '20 at 12:56
  • @Jontia: wasn’t comparing voting on nomination, but complaints about having to vote act all. – jmoreno Dec 23 '20 at 13:03

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