State officials across the nation are fighting former President Barack Obama’s last-minute decision to impose federal authority over state-run election systems, The Daily Caller News Foundation has learned.
The National Association of Secretaries of State (NASS), which includes officials from all 50 states and U.S. territories, appealed to President Donald Trump in a resolution approved Saturday at the group’s winter meeting to overturn the Obama policy, but doing so may encounter unexpected resistance from the new administration.
Obama ordered the Department of Homeland Security (DHS) Jan. 6, 2017, to classify local and state election systems under the new federal designation of “critical infrastructure.”
By a voice vote, the NASS declared that it “opposes the designation of elections as critical infrastructure,” with opposition cutting across party lines. The NASS includes 33 Republicans, 21 Democrats and one independent.
Election authority falls under secretaries of state in most states, but some states give the authority to their lieutenant governors. All were in attendance at the winter meeting.
The Obama administration took state officials by surprise when only day before leaving office, DHS Secretary Jeh Johnson announced he was permitting state and local election machinery to be placed under his federal cybersecurity program. Many state officials denounced the action.
The decision was timed to coincide with issuance of an intelligence report on alleged Russian efforts to interfere with the 2016 elections.
State officials initially felt they could count on DHS under Trump to rescind the designation, but now there are indications the new administration may be retreating from its early opposition to the policy.
Since the country’s founding, the U.S. Constitution recognized the authority of states — not the federal government — to regulate and administer elections.
Some state officials worry the Obama policy could lead to a federal takeover of elections.
Louisiana Secretary of State Tom Schedler, a Republican and immediate past-NASS president, told TheDCNF at the winter meeting that the Obama administration “stonewalled” when asked about the ramifications of the federal designation.
“The biggest difficulty was the stonewalling from the previous administration. They just don’t seem to give us any answers to our repeated requests,” Schedler said. He said Trump administration officials have also not been forthcoming about the meaning of the designation.
Echoing Schedler was Connecticut Secretary of State Denise Merrill, a Democrat, who is the current NASS president.
“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,” Merrill told TheDCNF.
Trump’s DHS Secretary, Gen. John Kelly (Ret.), originally said during his Senate confirmation hearing that he opposed the federal designation, saying it “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.”
Members of NASS appeared undaunted by Kelly’s retreat, with Merrill saying of the resolution, “this is a pretty strong statement from this organization and I know there are members who have contacts in the administration.”
Schedler said NASS hopes to meet with Kelly and Vice President Mike Pence.
“I’m not quite certain he has studied the issue in depth,” Sheldon said of Kelly. “We’re hoping to meet with him. A group of us with, hopefully, Vice President Pence and others to try to see if we can persuade them that this is not the thing to do.”
Indiana Secretary of State Connie Lawson, a Republican and the incoming NASS president, expressed confidence the group could work with the new administration.
“I think it made a strong statement from NASS regarding how we feel about the designation of critical infrastructure and it also leaves it open so we can have conversations with DHS about what this actually means,” she said.
Georgia Secretary of State Brian Kemp, a Republican, said, “I hope this call for change leads to a productive discussion with the new administration.”
Kemp was a particularly vocal critic of the federal designation. He learned after the 2016 election that an attempt was made to compromise his state’s voter registration. The cyber intruder was traced to a DHS computer’s IP address. The DHS Inspector General is investigating the incident.
Merrill emphasized the designation is not a partisan issue.
“I do not see this as a partisan issue. I think this is a question of election administration and where that appropriately belongs, what kind of oversight should come from the federal government. Because it is seen by most of us as a state function,” she told theDCNF.
She added that the designation makes no sense because election machinery does not connect to the Internet. Voter registration lists are tied to the Internet but those lists are manually printed out before elections and tabulations are not tied to any digital systems.
“I can’t say this often enough. The election equipment that actually tallies the results of elections are not connected to the Internet,” she told TheDCNF. “And so, it’s hard to see what the cybersecurity is going to address,” she said.
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