WASHINGTON ― At the time ― only about a month ago ― Obama administration officials thought the move was a swell idea; good for national security and a subtle way to twist the knife in the president-elect on the topic of Russian election hacking.
But it may have been the riskiest decision of the Obama years, opening a legal door to Donald Trump forces looking to control future access to the ballot box in the name of national security, and to a new president who decries millions of (phantom) “fraudulent” votes he claims were illegally cast against him.
Here’s how the Obama administration did it.
On Jan. 6, the administration released a devastating report on Russian involvement in the presidential election, buttressing those trying to undermine the validity of Trump’s Electoral College victory.
On the same day, and not by coincidence, then-Homeland Security Secretary Jeh Johnson issued an official designation as part of the National Infrastructure Protection Plan, designed, at least in part, to show just how seriously the outgoing Obama national security team regarded such intrusions.
In a four-page notice, Johnson said that, henceforth, “election infrastructure in this country” would gain protection as part of the “Government Facilities critical infrastructure.” It was now “critical infrastructure,” just like dams, the electric grid, financial services and a host of other sectors.
Elections And The Constitution
And what did he mean by “election infrastructure?” Everything, from the voting machine in your precinct to the big data on tote boards on your TV screen:
“By ‘election infrastructure’ we mean storage facilities, polling places, and centralized vote tabulation locations used to support the election process; and information and communications technology to include voter registration databases, voting machines, and other systems to manage the election process and report and display results on behalf of state and local governments.”
Johnson had been mulling the designation for months, and admitted in his announcement that it had faced opposition from “many state and local election officials.” He insisted the move “does not mean a federal takeover, regulation, oversight or intrusion concerning elections in this country.”
It meant only that election infrastructure would become a “priority” within the national security plan, and that “cybersecurity assistance” would be available but “only for those who request it.”
Many state officials were not impressed with the explanation and remain so. In fact, they tend to be scared when feds offer “help;” they know there are always strings of Washington control attached to the money.
State officials are jealous of their prerogatives and fully aware that the U.S. Constitution mandates state control of elections, up to and including ― and in a way especially ― the presidential race. The only exception, and it is major one, is for civil rights, and that, too, was mandated by Constitutional amendment.
A ‘Trojan Horse’ Power Grab
Last fall, the proposed DHS designation was opposed by libertarian scholars and election officials in places known for allegiance to “states rights” ― places such as Kansas and Georgia.
Officials there remain opposed, according to representatives for the secretaries of state in both. Several other states have joined their ranks.
More significantly, now that the “states’ rights” theory has become attractive to those who fear Trump, California has weighed in with concerns.
While protecting electoral systems is important, California Secretary of State Alex Padilla said recently, “it is unclear if the incoming administration will abide by Secretary Johnson’s definition of the limits.”
Libertarian and conservative critics note that the decentralization of the American voting system is actually its greatest protection, and that centralizing it legally and digitally would make it more ― not less ― vulnerable.
More important, they worry that it would make possible a federal “Trojan horse,” said Heritage scholar Hans von Spakovsky. Such a power grab could allow DHS officials “access to any and every voting location they deem threatened,” and give them authority to “investigate, prosecute, disrupt and otherwise reduce” any perceived threats.
And, under the terms of the DHS rules, discussions of such “national security” threats to voting and decision-making to deal with them would be exempt from public view, not subject to the Freedom of Information Act.
Trusting Trump’s DHS Secretary
Trump’s now-confirmed DHS secretary, John Kelly, received only one written question on the topic, and vaguely answered (or someone answered for him) that it was unclear whether elections belonged under such a critical infrastructure regime.
But sources in the national security community, in the Trump administration and on Capitol Hill told The Huffington Post that, as of Wednesday afternoon, the designation had not been rescinded; nor was anyone aware of a move afoot to do so.
Johnson declined to comment.
White House press secretary Sean Spicer repeatedly declined to comment, as did a spokesman for DHS.
This issue will take center stage at the Washington meeting of state officials later this month. An organization representing secretaries of state has asked for clarifications and guidance, but so far has received none, according to Kay Stimson of the National Association of Secretaries of State.
With Republicans in charge in most states, it is not clear how much they will be willing to put their fiery principles ahead of their desire to remain in power in their jurisdictions.
It’s a bunch of people in a fever swamp worrying about something that is merely advisory and a good idea to begin with.
Meanwhile, former Obama administration officials and Democratic allies on the Hill brushed aside concerns raised in recent days about possible Trump administration use ― or misuse ― of the designation.
“It’s a bunch of people in a fever swamp worrying about something that is merely advisory and a good idea to begin with,” said one top Democratic staffer who did not have permission to speak on the record.
“I trust John Kelly to get it right,” said a former high-ranking Obama administration national security official, also declining to be quoted on the record ― in his case out of a desire to give the new administration a chance to “do the right thing” without public prodding.
Even if Kelly is the stand-up guy Democrats think he is, it isn’t clear how much power he will have in Trump World.
After all, he wasn’t immediately “read in” on what was happening with Trump’s immigration ban. Though he is a regular member of the newly revived Homeland Security Council, Trump political mastermind Steve Bannon is a member of it, too.
Who knows what threats Bannon ― or Trump ― may find lurking in the electoral system in 2018 or 2020? And who knows what measures DHS might deem necessary to “protect” that system?
Thanks to the unintended assistance of Obama administration, we may find out soon enough.