The Department of Homeland Security could not have picked a better succeeding week to perform a Friday news dump announcing its decision to designate state election systems as “critical infrastructure” like previously done for the nation’s transport, electrical, financial, and water systems. Though this largely predictable move has sparked concerns among state election officials and watchdogs with respect to federal over-reach, equal uneasiness has been expressed about the incredibly vague nature DHS has chosen to describe how it will intervene in Constitutionally-prescribed state matters.
Days ago, DHS Secretary Jeh Johnson announced his department’s decision to designate America’s “polling places, vote tabulations locations, voter registration databases, voting machines” and other elements wholly maintained or overseen by local governments to now be subcategorized with other assets deemed worthy of Washington’s protection. Johnson couched the need to intervene on the basis of improving cybersecurity protections for state systems.
Hoping to minimize public concerns that Washington was over-stepping its bounds, Secretary Johnson noted, “This designation does not mean a federal takeover, regulation, oversight or intrusion concerning elections in this country.” (original emphasis) The outgoing secretary made a noticeably vague reference to the specter of alleged Russian attempts to hack and influence the 2016 Election by saying his decision is “simply the right and obvious thing to do.”
Given the relative unknowns that come with this decision, if left unchanged, there are six matters to be aware of in the coming months.
Experts are still uncertain what the ‘designation’ means for state elections offices.
Perhaps even more concerning than a new layer of federal assistance is an ambiguous one. Academics and election officials alike have expressed discomfort with the lack of parameters put forth by the announcement, particularly in a governing sector that is populated with bureaucrats following strict procedures and guidelines with little observable room for improvisation. Secretary Johnson noted that the program would be voluntary and avail states to “all the benefits and protections” the federal government could offer, however.
Great concerns have been voiced from a separate federal office with some oversight over elections.
By combining a voluntary mechanism with a system advertised to be practically all-encompassing down to individual voting machines, one federal elections regulator has expressed deep discomfort with the announcement. U.S. Election Assistance Commissioner Christy McCormick responded to the news by challenging Secretary Johnson to be more forthcoming on the details of the plan, noting that federal officials have been conservative in their communications to states about what such a designation could mean. McCormick argues that DHS could be embarking on a carrot-and-stick approach, pressing more states into allowing federal entry into their voting systems by withholding information about cyber threats.
“If DHS were truly concerned with the security of these elections, they would simply provide these resources without … requiring states to ‘volunteer’ before any information or resources will be shared,” McCormick summarizes.
The commissioner also expressed concern that states are still being kept in the dark about their relative autonomy once a secretary of state or board of elections lets the feds within their gates.
“If states do ‘volunteer,’ will they be able to decide the scope of the Federal Government’s access? Will they be able to ask the Federal Government to leave?”
McCormick additionally charges that DHS could disrupt a longstanding tradition of transparency in election data.
This decision was entirely predictable.
Secretary Johnson was largely up-front with the fact that his office was considering this action, dating back to August 2016. DHS made global headlines alleging that scores of state voting systems around the country had been breached by outside actors, accessing voter registration files and other data. At the time and after his latest announcement, the secretary and other Obama Administration officers assured the public that no actual votes or registrations had been tampered with. In essence, those reportedly performing breaches were accessing information that was already kept as a matter of largely unfiltered public record.
Adding to the intrigue shortly after the election, Georgia Secretary of State Brian Kemp accused DHS—not Russian or other actors—of attempting to breach their secured election systems on November 15.
America’s vast, decentralized network of election systems would require equally vast federal interference.
In the United States, there is no centralized federal officer that can claim “the buck stops with them” with respect to elections. There are at least 50 official-use databases containing American voter registration files, with hundreds more separate ones feeding new and updated voter data from state agencies that have nothing to do with elections, like DMVs. More than 8,000 local jurisdictions administer voting and registration. In some states, these jurisdictions split the suite of duties among multiple county or municipal offices. Local officials are charged with fielding thousands of polling locations, often hosted on private property. Depending on when you vote in an election, you may sign-in at a polling place differently. The type of voting machine or method used to cast a ballot can also vary depending on the county in question.
To assume that a one-size-fits-all security plan from Washington will not weigh heavily on local governments begs even the most collegial pushback, especially given the scope of protection currently advertised by DHS.
The DHS acted in a period of diminished federal authority over state election systems.
The Shelby County v. Holder Supreme Court decision might not have impacted the average voter, but the U.S. Department of Justice found itself with far less direct influence, beginning in 2013. For decades, a number of largely southern states had to seek approval from the DOJ to make any kind of change in how they perform elections—from moving a polling place across the street to instituting a voter ID law and beyond. After the court ruled that Congress needed to reassess if states like Alabama and Texas needed still be treated as if it were 1965, Obama Administration officials have been left in their final days to find a new avenue into direct oversight.
The ‘designation’ is reversible.
Between the infancy of the concept and the emerging chorus against the Department of Homeland Security’s decision, the forthcoming Trump administration stands well-positioned to reverse course. If left unattended, federal officers will have ample opportunity to induct states and begin to normalize election procedures among the varying levels of government, increasing the difficulty for a full reversal.
Attention @realDonaldTrump White House-to be: the @DHSgov decision to list state election systems as “critical infrastructure” is reversible
— PublicInterestLegal (@PILFoundation) January 12, 2017
Ohio Secretary of State Jon Husted voiced general objections against the plan before a national conferece of secretaries of state, according to the Columbus Dispatch.
“Whether it’s a Homeland Security secretary appointed under President Obama or one appointed under President Trump, I don’t want the federal government to have authority to invite themselves into our elections process in Ohio or any other state without our permission,” the Republican election administrator said. “[B]y doing this, a lot of us were worried that you’re sending the wrong message, that there was some sort of problem that needs fixed.”
EAC Commissioner McCormick also cautioned that the move would likely lead to more partisan enforcement of elections if the DHS were to proceed as planned.
Logan Churchwell is a founding editor of the Breitbart Texas team. You can follow him on Twitter @LCChurchwell. He also serves as the communications director for the Public Interest Legal Foundation.
This article has been updated to reflect additional information.
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