On Friday, Homeland Security Secretary Jeh Johnson–against the will of some states–designated federal elections as “critical infrastructure,” building on the false narrative that “Russia hacked our elections” in November.
In a statement, Johnson said:
I have determined that election infrastructure in this country should be designated as a subsector of the existing Government Facilities critical infrastructure sector. Given the vital role elections play in this country, it is clear that certain systems and assets of election infrastructure meet the definition of critical infrastructure, in fact and in law.
I have reached this determination so that election infrastructure will, on a more formal and enduring basis, be a priority for cybersecurity assistance and protections that the Department of Homeland Security provides to a range of private and public sector entities. By “election infrastructure,” we mean storage facilities, polling places, and centralized vote tabulations 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.
This is unprecedented and, if Trump doesn’t reverse it, an action that is likely to be challenged in court by states, which have constitutional authority to manage elections, and without federal interference or “assistance” of any kind.
In fact, Johnson noted further in his statement that several states were opposed to what he is doing–which is essentially his boss’ bidding of course–but he decided he would do it anyway, because that’s just how this administration has always behaved: ‘We do what we want, when we want, and to hell with what states or the Constitution says.’
The strongest objections are coming from Georgia Secretary of State Brian Kemp. As reported by Politico:
During an earlier interview with the site Nextgov, Kemp warned: “The question remains whether the federal government will subvert the Constitution to achieve the goal of federalizing elections under the guise of security.” Kemp told POLITICO he sees a “clear motivation from this White House” to expand federal control, citing Obama’s health care law, the Dodd-Frank financial-reform legislation and the increased role of the Education Department in local schools.
“I think it’s kind of the nose under the tent,” said Vermont Secretary of State Jim Condos, a Democrat. “What I think a lot of folks get concerned about [is] when the federal government says, ‘Well, look, we’re not really interested in doing that, but we just want to give you this,’ and then all of a sudden this leads to something else.”
“Elections have always been run and organized by the states,” added Connecticut Secretary of State Denise Merrill, another Democrat, Politico reported. “And I think there has always been a fear that there would be federal intervention that would not recognize differences among the states.”
Merrill added that it’s unhelpful to have such alarming rhetoric about election security crop up so close to November.
“We’re not happy about anything that serves to make people concerned about the safety of the election at this point,” she said. “I think it’s wrong to think that there’s some sort of threat that isn’t there.”
The fact is, as noted in Article I, Sect. 4, Clause 1, elections are to be run by states, with Congress having a secondary role. And this regulatory change came from the federal bureaucracy, not Congress, so it is challengeable in court.