Derek Muller: The Kobach fallout on election security

The following is a guest post from Derek Muller:

The Presidential Advisory Commission on Election Integrity offered its first public request this week, as Vice Chair and Kansas Secretary of State Kris Kobach requested voter information from every state. That single request has likely done long-lasting damage to the political ability of the federal government to regulate elections. In particular, any chance that meaningful election security issues would be addressed at the federal level before 2020 worsened dramatically this week.

The request is sloppy, as Charles Stewart carefully noted, and, at least in some cases, forbidden under state law. The letter was sent to the wrong administrators in some states, it requests data like “publicly-available . . . last four digits of social security number if available” (which should never be permissible), and it fails to follow the proper protocol in each state to request such data.

Response from state officials has been swift and generally opposed. It has been bipartisan, ranging from politically-charged outrage, to drier statements about what state disclosure law permits and (more often) forbids.

But the opposition reflects a major undercurrent from the states to the federal government: we run elections, not you.

The Constitution’s default rules provide that the state legislatures choose the “times, places and manner of holding elections for Senators and Representatives,” but Congress has the power to “make or alter such regulations.” Congress has slightly less power over presidential elections and very little over state or local elections (but more so since Reconstruction). And in American history, Congress has been reluctant to enact laws regulation elections except in a handful of instances (including major laws like the Voting Rights Act). For the most part, elections are primarily a matter of state regulation and control.

The 2016 presidential election highlighted this decentralized system when concerns about election security arose. As I noted in the Illinois Law Review Online, the Federal Bureau of Investigation and the Department of Homeland Security investigated attempted breaches into voter registration databases in late 2016. There has been increased, and justifiable, concern about election system security—thankfully, nothing (so far) that has undermined the outcome of any election.

Before this week, the states were already nervous about federal regulation of their election systems. DHS designated election systems as “critical infrastructure” in the waning days of the Obama administration. The National Association of Secretaries of State formally opposed the designation; the Trump administration indicated it would maintain the DHS designation. States worried that they would lose flexibility and bear increased costs without adequate justification.

The delicate balance between federal and state regulation of election system security was already going to be a complicated problem to begin to resolve by 2020. Then comes this request from Mr. Kobach.
Ostensibly, the Commission’s request for information is designed to ferret out voter fraud (despite Professor Stewart’s careful explanation of the likely problems stemming from this sloppy request). And while others have critiqued the request on various grounds, it struck me that this request has only served to deepen state skepticism of federal election regulation.

(Here I feel compelled to add a caveat for those inclined to misread these inferences: I do not believe that Mr. Kobach’s request is some kind of false flag operation designed to actually empower states, restrict federal power, and increase the likelihood of foreign interference in our elections.)

In the next few years, what is the likelihood that state election administrators voluntarily provide election system information with the federal government? Probably a lot lower than they were a week ago. States were already skeptical of handing over information about, much less any control over, their elections to the federal government. They’re probably even less willing today.

That’s probably not what state election officials are thinking about when pushing back against the Commission’s request with such vigor. Nevertheless, it undoubtedly heightens skepticism they may have already had. They are publicly assuring state voters that they will not share sensitive election information with the federal government—the kind of promise that will linger.

Fair-weather federalists may applaud election officials in California and New York resisting Mr. Kobach. But it is worth noting that this resistance likely enhances a significant political limitation to any federal election regulation in the near future.

These thoughts are mostly descriptive. In the end, I’m not sure what the best path forward to secure our elections may look like—how much federal regulation or guidance is wise policy; the extent to which federal recommendations should be voluntary (consider the important advances made in the states from recent voluntary adoption of recommendations of the Presidential Commission on Election Administration); or to what extent election security would require new laws from Congress, as opposed to federal agencies acting within the scope of existing statutory mandates. Smart people, particularly those with a deep knowledge of computer science, have offered a great deal of valuable practical insight in the last few months, which I hope is seriously considered in the states.

But, I do believe that these conversations at the national level are going to be much harder to have in the first place. The Commission’s sloppy request has increased state skepticism of federal guidance. We should expect state resistance here to signal abiding skepticism of any kind of federal election system security standards by 2020.

(Rick kindly offered space on his blog to share these thoughts, derived from my recent Tweetstorm.)

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