The White House voting commission’s request for state voter data already has sparked fears that sensitive personal information will be put at risk, and that eligible voters will be knocked off the rolls.
But could the commission’s over-reach have another less-publicized effect? By broadly discrediting federal involvement in elections, it may make it harder to address a formidable array of threats, from foreign cyberattacks to uneven administration to outright efforts to restrict the franchise.
With President Trump in the White House, the commission’s most fervent critics might not see limiting Washington’s power over voting as a bad thing. But over the long run, many of those who worry about maintaining free and fair elections fear that shifting the pendulum further toward the states is unlikely to help the cause.
Justin Levitt, a prominent election administration expert at Loyola Law School and a former Justice Department voting official, said it would be a mistake to draw the wrong lessons from the commission’s mistakes.
“I hope that the reaction to one deeply flawed federal advisory body isn’t a proxy for denigration of any and all federal services,” Levitt wrote in an email to a listserv of election law specialists, which he allowed The Daily Democracy to quote from.
But there’s evidence that that’s what’s happening. On Monday, at a meeting of the National Association of Secretaries of State, the nation’s top state elections officials unanimously passed a bipartisan resolution affirming the right of states to run elections.
The measure came in response to the White House voting commission’s request late last month to all 50 states for voter data, including social security numbers and birth dates. Most states have said they’ll provide only data that’s publicly available.
In saying so, many have taken the opportunity — sometimes in colorful terms — to trumpet state authority over voting.
“My reply would be: They can go jump in the Gulf of Mexico, and Mississippi is a great state to launch from,” said that state’s top elections official, Republican Delbert Hosemann, last week. “Mississippi residents should celebrate Independence Day and our state’s right to protect the privacy of our citizens by conducting our own electoral processes.”
Ohio Secretary of State Jon Husted, a Republican, said that in responding to the commission, “we will make it clear that we do not want any federal intervention in our state’s right and responsibility to conduct elections.”
This outpouring of support for state control over voting comes in the wake of Russian cyberattacks on voting systems that have underlined the need for a robust and coordinated federal response. In January, the Department of Homeland Security responded to the attacks by designating election systems as critical infrastructure.
But several states have opposed the move, again citing the constitutional right of states to run their own elections.
Husted called it “an unprecedented federal overstep.” And in testimony last month before the Senate, Indiana Secretary of State Connie Lawson, a Republican member of the White House voting commission, said DHS’s move “threatens to erode public confidence in our election process as much as any foreign cyber threat.”
Most independent experts say the problem isn’t that the federal government is doing too much. It’s that it’s not doing nearly enough to prevent our voting systems from being breached again.
“Deciding to do nothing more than we are now [will] allow foreign manipulation of our country by governments that wish us harm” Richard Clarke and Robert Knake, cyber-security advisers to Presidents George W. Bush and Barack Obama, respectively, wrote Thursday.
Meanwhile, Congress is considering legislation that would abolish the Election Assistance Commission (EAC), the federal agency that helps states administer elections and produces valuable data on voting patterns.
The EAC also has at times worked to protect access to voting when states have sought to restrict it. For several years it refused to change the federal voter registration form to allow some states to require documentary proof of citizenship. Last year, the agency’s new executive director, Brian Newby, made the change without approval from commissioners, setting off legal wrangling that’s ongoing. Newby acted after being lobbied by a long-time ally, Kansas Secretary of State Kris Kobach — now the de facto leader of the White House voting commission — who was seeking to enforce a Kansas proof of citizenship law.
Kobach’s role in the controversy underscore how, despite his panel’s controversial effort to centralize state voter data, the commission is itself in key ways a project to give states a freer hand to restrict voting. As we’ve reported, one of the panel’s major goals, it appears, is to weaken the National Voter Registration Act so as to make it easier for states to remove voters from the rolls or prevent them from registering in the first place.
Then there’s the problem of election administration. Long lines, broken machines, and poorly maintained rolls effectively disenfranchise millions of voters, disproportionally minorities, each election. A bipartisan election commission appointed in 2013 by President Barack Obama recommended some fixes. But the issues will persist at some level as long as the federal government lacks the authority to meaningfully enforce standards.
There’s a broader context here, too: Ever since the 15th Amendment sought to give African-Americans the right to vote, the federal government has been the most powerful force protecting access to the franchise, especially for marginalized Americans. And, generally speaking, those who have argued most vociferously for states’ rights to run elections without federal interference have tended also to support measures that have restricted voting.
The dynamic operates today. When the Supreme Court weakened the Voting Rights Act in 2013, states including Texas and Alabama celebrated that with Washington out of the way, their restrictive voting laws would now go into effect—often using rhetoric about state sovereignty.
In other words: We already know that the White House commission may do plenty of damage in the medium term by helping states restrict voting and, it now appears, by spurring some voters to voluntarily de-register because of privacy concerns. But if its over-reach ends up shifting the balance of power to run elections even further toward the states, it will have done long-term damage too.