DHS' Election Power-Grab Raises Huge Questions and Red Flags

COMMENTARY Election Integrity

DHS' Election Power-Grab Raises Huge Questions and Red Flags

Jan 13, 2017 6 min read
Hans A. von Spakovsky

Election Law Reform Initiative Manager, Senior Legal Fellow

Hans von Spakovsky is an authority on a wide range of issues—including civil rights, civil justice, the First Amendment, immigration.
Homeland Security Secretary Jeh Johnson has rushed through a designation of the nation’s state and local election systems as “critical infrastructure.” SHAWN THEW/EPA/Newscom

Key Takeaways

Christy McCormick, a commissioner on the U.S. Election Assistance Commission, is raising questions about Johnson’s actions.

Johnson “discarded and dismissed the opinions and concerns of the Secretaries [of State] and of the EAC Commissioners.

Commissioner McCormick is asking that President-elect Trump and his designated DHS secretary, Gen. John Kelly review the actions of DHS.

As I warned last August, Homeland Security Secretary Jeh Johnson has rushed through a designation of the nation’s state and local election systems as “critical infrastructure.” Why now, after the election and in the waning days of the Obama administration?

Christy McCormick, a commissioner on the U.S. Election Assistance Commission (EAC), is raising these questions — and even more serious inquiries — about Johnson’s actions. The EAC is the federal agency charged with being the national clearinghouse and resource for states and local election officials on the best practices and standards in administering elections. So why is DHS big-footing all over the EAC’s turf?

In announcing the designation, Johnson declared that elections should be a “priority for cybersecurity assistance and protection” from the federal government. The Jan. 6 designation, he said, was “simply the right and obvious thing to do.” Yet the formal designation itself admitted that “many [state and local election officials] are opposed to this designation.”

The day before the announcement, Johnson had a nationwide telephone conference call with election officials. According to McCormick, it was “billed by DHS as a call to inform [them of Johnson’s] current thinking on whether or not to designate elections as critical infrastructure.”  

At the time, McCormick said, election officials “were still asking for information” about the designation. After all, she noted Johnson had never conducted a “discussion or review of what the designation means” or its benefits. Moreover, she added, election officials had never been given “an adequate opportunity to engage in the decision-making process.”

Rather, she said, Johnson “discarded and dismissed the opinions and concerns of the Secretaries [of State] and of the EAC Commissioners, the very people who actually have deep professional experience in conducting and administering elections.” His unilateral action, she said, “blindsided election officials.”

In fact, McCormick said that when they spoke with or were briefed by DHS officials on other occasions, “sometimes even less than an hour later” there was “different or additional information provided by or leaked to the media by DHS officials.” Numerous times, “we have been left shaking our heads and unable to reconcile the pieces of information that [DHS has] given to us.”

Essentially, McCormick argues, Johnson borrowed “a pen and a phone from his outgoing boss … in a Friday night drop.” And the designation is near all-encompassing, covering virtually everything that state and local election officials do and giving federal officials unprecedented access to state databases.

Anticipating objections, Johnson declared that the designation “does nothing to change the role state and local government have in administering and running elections” and does not represent “a federal takeover.” But as I pointed out back in August, this designation could give the Justice Department access to any and every election and voting location they deem threatened. If this authority is misused, it could allow the feds to demand changes be made to election and voting systems, regardless of the views of local officials.

McCormick raised the same issue, questioning the “so-called benefits” of this designation and also said that “serious questions still remain” about the roles of other federal agencies such as the Department of Justice.

During the conference call Johnson told election officials that their participation was “voluntary.” However, he did say that if they didn’t “volunteer,” they would not be able to receive information from DHS to secure their own systems. McCormick notes:

This begs the question--if they “volunteer,” does that allow DHS to invade ALL of their “information, capabilities, physical assets, and technologies” in order to get the information that may be known by DHS and the U.S. Intelligence Community (USIC)? If States do “volunteer,” will they be able to decide on the scope of the Federal Government’s access? Will they be able to ask the Federal Government to leave? Will they be required to provide uniformity or consistency in order to participate in DHS’s efforts? Will DHS or other Federal agencies require States to conform to a new security standard? If DHS were truly only concerned with the security of these elections, they would simply provide these resources without the declaration or requiring states to “volunteer” before any information or resources will be shared. I am still unconvinced that a declaration of critical infrastructure status is necessary for DHS to help the States with security efforts, because we’ve already seen them do so.

McCormick further argues that Johnson’s action “politicizes elections.” He bypassed the EAC, which was set up by Congress as a bipartisan, independent agency to guard against having elections “handled or governed by a partisan branch of the Federal Government” that is under the control of whatever party occupies the White House.

She also points out that this designation “creates a layer of non-transparency and unnecessary, federally-controlled bureaucracy.” Elections need to be transparent. This is why the states allow outside observers at all levels of the election process. But, McCormick notes, the critical infrastructure designation “departs from that transparency standard and provides for the establishment of numerous councils and centers that will be out of the view of the public and run solely by Federal bureaucrats.” This is not good. As she observes, “Closed discussion or control of election administration by various councils and groups out of the view of the public does not engender faith or confidence in the elections.”

Congressional testimony by administration officials supports McCormick’s view.

McCormick also finds the technical explanation for this designation to be “insufficient.” Indeed, she notes, the declassified report on Russian hacking claims that Russian intelligence “obtained and maintained access to elements of multiple U.S. state or local electoral boards.” McCormick says this “is patently untrue.” Neither the EAC nor state election officials have been provided with any evidence by any intelligence agency that this occurred, she notes, adding that “upon inquiry of this particular allegation, DHS officials told us that it was a mistake to include that statement in the report and they do not have evidence to support the statement.”

The declassified report wasn’t even about the November election, she notes: “It was about politics.” And connecting the allegations in the report “to the election administration process and asserting that it rose to the level of interference in our elections is a gross and incorrect characterization.” As McCormick rightly points out, “what happens on or to the email systems of political parties or their committees, purported influence campaigns, and celebrations for one candidate or another have no impact on the security and integrity of our election infrastructure.”

Congressional testimony by administration officials supports McCormick’s view. Regardless of the credibility of the intelligence community’s allegations about Russian hacking, all of those allegations pertain to an intrusion in the computer network of the Democratic National Committee and John Podesta’s email communications, not the election administration systems of the states.

On Jan. 5, the same day as Jeh Johnson’s conference call, Director of National Intelligence James Clapper told the Senate Armed Services Committee that there was no Russian hacking of “vote tallies” or any manipulation of voting machines. Indeed, after the Nov. 8 election, Johnson himself admitted that DHS saw no “evidence that hacking by any actor altered the ballot count or any cyber actions that deprived people of voting.”

The U.S. has the most decentralized election administration system of any Western democracy. Elections are run at the county (and even township) levels, and voting machines are not tied into the internet or a centralized computer system. Again, as Johnson told MSNBC, this decentralization protects us since there are “9,000 jurisdictions responsible for vote counting across this country.”

That decentralization is our “greatest security asset,” according to McCormick, yet the critical infrastructure designation “presents the potential for DHS to encourage states to move to a uniform system.” That, she argues, would strike at the heart of decentralization and “decrease the security of our elections.”

Nor is there any apparent need for federal intervention. As McCormick observes, “Election officials have been aware of and have been dealing with cyber security and physical security of election infrastructure for many, many years and do an excellent job of it.”

Commissioner McCormick is asking that President-elect Trump and his designated DHS secretary, Gen. John Kelly, “immediately reverse this unjustified and unsupported critical infrastructure, designation” and review the actions of DHS. The federal government, she notes, should “leave the conduct of elections to the States, as mandated in our Constitution.”

This piece originally appeared in Conservative Review.