The nation’s top state election officials say they’ll keep fighting a Department of Homeland Security order that designates state and local election systems as “critical infrastructure,” and aren’t happy with the message they got this week that the designation will remain.
For the moment, that fight means lobbying congressional delegations to use whatever power is at their disposal to make DHS back off. Barring that, a separation of powers lawsuit may be their last option, but it’s not clear yet if any state or coalition of states is willing to take that step just yet.
Indiana Secretary of State Connie Lawson will take over next month as president of the National Association of Secretaries of State, a group that originally opposed the critical infrastructure designation when it was created in the last days of the Obama administration.
“The association still stands behind the resolution that we passed in February,” Lawson told the Washington Examiner. “We are against the designation.”
Her remarks came after the group got a clear signal this week from Senate Intelligence Committee Chairman Richard Burr, R-N.C., that some kind of federal oversight of the local election process may be inevitable in the wake of Russia’s election meddling. He said the secretaries could cooperate with the DHS designation, or face even greater control in the future by the feds.
“It is absolutely critical that we have not only a collaboration but a communication between the federal government and the states as it relates to our voting systems,” Burr said at the end of an open committee hearing looking into the security of voting systems. “If not, I fear that there would be an attempt to, in some way, shape, or form, nationalize [voting systems]. That is not the answer.”
The secretaries of state who are opposed say DHS and the executive branch have assumed powers not intended for them.
“We don’t believe the federal government has a right to be in our states telling us how to run elections unless Congress passes an act,” Lawson said.
She added that every secretary who voted months ago for the NASS resolution, which opposed the DHS designation, has been working to lobby their own congressional delegation.
The designation originated from the Obama administration, but got support from Trump’s Secretary of Homeland Security John Kelly earlier this month. But in Wednesday’s testimony, committee members learned that 21 states were potentially targeted by cyberattacks from Russian sources, though the scale and threat of those attacks aren’t publicly known because DHS didn’t share its information with the states.
While DHS seemed to get broad support from senators on the committee for the “critical infrastructure” designation, it also was criticized for not having been more proactive in communicating with state and local officials in sharing their knowledge of all of the possible attacks going on in 2016.
An NSA document was leaked in early June showing federal officials knew for parts of 2016 and most of 2017 about the numerous cyberattacks on local election systems in 21 different states. Local officials complained that if the document had not leaked, they might not have been informed at all about what federal officials had learned.
If a majority of secretaries of state want to take action to push back more forcefully against DHS, that could happen in early July in Indianapolis, when NASS meets for their annual conference.
The conference will feature a full day’s work on cybersecurity issues, with representatives from the FBI and DHS in attendance, Lawson said.
