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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.