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Can Federalism Cope with Russian Election Meddling?

A series of Senate hearings has made the Russian threat to voting crystal clear. Yet some state election officials would prefer to see it all as an argument about the power of the federal government.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

I’ve spent many hours this summer watching Senate hearings on the integrity of American elections. Lest we forget the Church Committee, which investigated the CIA, or the Select Committee on Presidential Campaign Activities, the Watergate Committee, Congress can be one way Americans learn the truth.

As a former Senate staffer, I have much respect for the professionalism and bipartisanship shown by the two leaders of the Senate Select Committee on Intelligence, Chairman Richard Burr (R-S.C.) and Vice Chairman Mark Warner (D-Va.) 

Nearly 20 million people watched Former FBI Director James Comey testify before the Senate Intelligence Committee last month. One of his warnings was that the Russians had come after American democracy “[a]nd they will be back.” But two other hearings that garnered much less attention left me troubled that the American electoral system won’t be fortified in time for the 2018 election. One hearing was about the history of Russian hacking in Europe and the other was about the reaction of state election officials to federal assistance in light of Russian interference. 

In late June, the Senate intelligence committee heard from a group of experts about Russian interference in European elections. The roster of democratic contests the Russians tried to roil was long; it included Estonia, Ukraine, Norway, the Netherlands, Germany and France, and even included a failed coup last October to storm the Montenegrin parliament while members awaited election results and then kill the prime minister. (Prime Minister Dusko Markovic was the head of state President Trump notoriously shoved aside at his first NATO meeting in May.) 

The experts urged the U.S. and Europe to take a united stand against future Russian interference in Western democracies. R. Nicholas Burns, the no. 3 ranking official in George W. Bush’s state department and a former ambassador to NATO testified, “NATO and the EU should work more closely together to strengthen our democracies in order to resist Russia’s campaign to weaken us. …We must also work with Canada and Europe to strengthen our local and state electoral arrangements— the sanctity of voting rolls and the procedures for tabulating votes—to harden our systems and to make them significantly more resistant to hacking and manipulation by Russian agents.”

In the U.S., the decentralized nature of voting is supposed to be the nation’s great protector. There are 50 states, with 8,000 jurisdictions, and roughly 110,000 polling places. Each state and jurisdiction runs quasi-independently. Unlike our tidy neighbors to the North who have Elections Canada to run national elections in a uniform way, there is no “Elections America.”

But this faith in decentralization as the ultimate safeguard may be misplaced. It may only apply against a small fry attack. At least according to Bloomberg, Russian hackers hit systems in 39 states. (The Department of Homeland Security is much more modest, telling the Senate Intelligence Committee, “21 states were potentially targeted by Russian government cyber actors.”) Meanwhile, the FBI has conceded the voter registration databases of Illinois and Arizona were breached, and ABC News reported there are at least two other states whose voter registration systems were penetrated.

Breaking into a voter registration database is one thing, but controlling the database is something else. But that’s exactly the capability the Russians demonstrated, according to a leaked NSA document published by The Intercept. The NSA found the Russians had successfully infiltrated the network of a company believed to be VR Systems, which sells voter registration software. From there, the Russians could have penetrated the computers of VR customers, allowing hackers “to alter or delete voter registration information in such a way as to strategically create delays and chaos at specific polling locations.” 

Watching a second Senate intelligence committee hearing on Russian interference in the 2016 U.S. elections was almost like seeing two hearings at once. Noted election computer science experts, such as University of Michigan Prof. J. Alex Halderman, flatly warned, “[T]here is no doubt that Russia has the technical ability to commit wide-scale attacks against our voting system, as do other hostile nations.”

Meanwhile, in the face of this threat, many state Secretaries of State, who usually set election rules, wanted to turn it all into a Constitutional argument. For the most part, the Constitution allows the states to set their own election rules, and states guard this prerogative zealously. Known as the Elections Clause, Article I, Section IV of the Constitution reads, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof  but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.”

To many Secretaries of State, practically any action by the federal government to secure the election infrastructure was not an effort to protect democracy, but rather, a breach of federalism and state sovereignty. For instance, in one of his last acts as the Obama Administration’s Director of Homeland Security (DHS), Jeh Johnson designated the nation’s election infrastructure as “critical infrastructure.” In short, such a designation means that DHS deems the voting system one of the “essential services that underpin American society,” and will take steps to enhance its security and resilience.

Sensitive to any objections by state officials, Johnson specifically noted in announcing the designation that it “does nothing to change the role state and local governments have in administering and running elections.” The designation, Johnson added, allows DHS to provide cybersecurity assistance to election officials, “but only for those who request it.” 

But when Connie Lawson, the Republican Secretary of State of Indiana, and the incoming president of the National Association of Secretaries of State, testified before the Senate intelligence committee, one could be forgiven for believing DHS had just handed her a set of rules the size of the Federal Register.

“[W]e are struggling to understand – and implement – the U.S. Department of Homeland Security’s January 2017 Executive Order designating elections as ‘critical infrastructure,’” Lawson pleaded. “I am part of the bipartisan majority of Secretaries of State who support a push to rescind the measure, which clashes with some of the most basic principles of our democracy and already seems likely to cause more problems than it actually solves.”

Fortunately the Supreme Court has already decided the federalism matter, even though people like Brian Kemp, the Republican Secretary of State of Georgia, has called Johnson’s decision “a federal overreach into a sphere constitutionally reserved for the states.” Almost exactly four years ago, the Court decided Arizona v. Inter Tribal Council of Arizona. In a 7–2 opinion by the late Antonin Scalia, the court buttressed the Elections Clause, noting, “[T]hat constitutional provision…empowers Congress to ‘make or alter’ state election regulations…the federalism concerns…are somewhat weaker here. [T]he States’ role in regulating congressional elections – while weighty and worthy of respect – has always existed subject to the express qualification that it ‘terminates according to federal law.’”

Moreover, fixing some of the most vulnerable aspects of the voting system need not cost a lot of money. For years, The Brennan Center has advocated replacing “paperless” voting machines with those that produce a paper ballot. Unfortunately, 44 million registered  voters, in states such as Georgia, Pennsylvania and Virginia still rely on paperless machines. According to an estimate by the University of Michigan’s Halderman, it could cost up to $400 million to replace these machines, which is what the military spends annually on bands. The purpose of having paper ballots is to run risk-limiting audits to check that the computers are counting votes correctly. Such audits could cost roughly $20 million per election or about 0.2 cents for every voter in 2016.

Not only does the US and Europe need to get its ducks in a row. Somehow the US needs to get its own house in order so that the next anti-democratic hack doesn’t walk right through a door left open by a needless battle over federalism.