Officials with the Department of Homeland Security are deciding to continue a last-minute Obama administration policy designating state-run election systems as “critical infrastructure,” which gives the federal government new and expansive authority over elections.
The policy was so unpopular among state officials, the National Association of Secretaries of State rejected the designation Feb. 18 and appealed to the Trump administration for a reversal of the policy.
DHS official David Hess, acting as a Trump senior administration official who is performing the duties of the department’s undersecretary, affirmed the Obama administration’s previous policy in a March 6 letter to NASS President Denise W. Merrill.
Hess reaffirmed the special federal designation for election machinery as “critical infrastructure,” claiming it will help state election officials and saying it “enables DHS to prioritize its assistance to election officials.”
Hess added that the with the new federal designation, “DHS will be able to prioritize providing relevant threat information to election officials.”
Georgia Secretary of State Brian Kemp, a Republican, was defiant, vocally opposing the status quo apparently favored by the Trump administration. “DHS still failed to alleviate states’ real concern — what is the limit to this federal power? Until this question can be answered, I will remain opposed to the designation of elections systems as critical infrastructure,” he told TheDCNF today in a statement.
Incoming NASS president and Indiana Secretary of State Connie Lawson — also a Republican — told TheDCNF today they hope the White House will get involved in the decision and reverse the DHS position. Vice President Mike Pence is “currently reviewing” the issue, a spokeswoman for Lawson told TheDCNF.
By a voice vote, the NASS last month passed a resolution stating it “opposes the designation of elections as critical infrastructure.” State officials from both political parties support the resolution. The NASS includes 33 Republicans, 21 Democrats and one Independent.
State officials fear the designation could lead to the nationalizing of election systems. They note that since the founding of the country, elections have been a local affair, managed only by state and local officials.
The federal government was historically barred from direct involvement in state elections, until President Obama’s DHS Secretary Jeh Johnson unexpectedly announced its unprecedented policy Jan. 6, only weeks before the end of the administration. Many state officials denounced the action.
The Obama administration decision was timed to coincide with issuance of a contentious intelligence report on alleged Russian interference in the 2016 U.S. presidential elections.
During his confirmation hearing for DHS Secretary, General John Kelly initially told Senators the federal designation “appears to be a political question beyond the scope of DHS’ current legislative cyber mandates.”
But Kelly reversed himself Feb. 7, 2017, telling the House Committee on Homeland Security that, “I would argue that, yes, we should keep that (designation) in place.”
Federalizing elections has been roundly condemned by numerous state officials.
Louisiana Secretary of State Tom Schedler, a Republican, told TheDCNF that the Obama administration “stonewalled” state officials when they asked how the designation would affect the operation of state election machinery.
Connecticut Secretary of State Denise Merrill, a Democrat, who received the DHS letter and is the current NASS president previously told TheDCNF, “We were continually asking them ‘what does this mean, what will it cover, what are the implications?’ And we sort of never got anything back.”
In a related development, the DHS Inspector General has been investigating unauthorized attempts to hack state election systems last year. The “scans” tried to penetrate the state election systems of Georgia, Indiana and West Virginia. All of them were traced back to a DHS “Internet Protocol” (IP) address.
State officials such as Kemp believe the DHS attacks were designed to intimidate state officials who were outspoken against the designation and declined any help from DHS for cybersecurity protection.
Kemp wrote President-elect Donald Trump last Dec. 13, telling him, “I respectfully write today to request that you task your new Secretary of Homeland Security with investigating the failed cyberattacks against the Georgia Secretary of State’s network firewall.”
Rep. Jason Chaffetz, chairman of the House Oversight and Government Reform Committee, Jan. 11, asked the IG to investigate the attempted hacks.
“If these allegations are true, they implicate state sovereignty laws and various other constitutional issues, as well as federal and state criminal laws,” Chaffetz, a Utah Republican, told DHS Inspector General John Roth.
Title 18 of the federal code makes it a federal crime to “having knowingly accessed a computer without authorization” and to damage or impair the integrity or availability of data, a program, a system, or information. The penalty includes a fine and up to 20 years for each offense.
Roth informed Kemp Feb. 17 that his office was officially “investigating a series of ten alleged scanning events of the Georgia Secretary of State’s network that may have originated from DHS-affiliated IP addresses.” A firewall in Georgia’s system thwarted each attempt.
The acting official claimed DHS was moving forward to establish state-run election systems as a critical infrastructure “sub-sector.” There are 16 different sectors that the federal government has identified as “essential services.”
Many of those relate to the continuing function of American society in the event of a crisis, such as electrical grids, chemical and machine manufacturing.
Hess emphasized that the participation of states is “voluntary” and insisted it “does not involve federal intrusion, takeover, or regulation of any kind.”
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