In 2016, Department of Homeland Security Secretary Jeh Johnson found that state election officials were suspicious of federal offers of assistance in defending their voting systems from cyber attack. He tried to persuade them to accept DHS designation of those systems as “critical infrastructure,” which would have given states access on a priority basis to a range of protections. The response he received ranged from “neutral to negative.” DHS concluded that, in the middle of an election, it was best not to have a protracted, politicized fight over this step. It focused on providing assistance where it could, and a large number of jurisdictions requested help. In January 2017, even with officials remaining skeptical about the designation, Secretary Johnson proceeded to issue it.

According to Johnson, and as further reflected in reporting by The Washington Post, election officials resisting this engagement with the federal government viewed it as a threat to” states rights.” At least one, Brian Kemp of Georgia, suspected that the Administration might be using the claimed Russian interference as a ploy to advance the political prospects of its favored candidate, Hillary Clinton.  Kemp and others were not convinced that the Obama Administration had properly fixed blame on the Russians. Congressional Republican leadership stayed close to their state allies on these points, also stressing the rights of states and declining to embrace the finding of Russian intrusions.

This is a revealing part of the 2016 story: government at war with itself, in the grip of partisanship, when under cyber attack from a foreign government. The attack was directed at the electoral process, and yet it was still not enough to produce a unified, fully coordinated federal and state response. For all the progress in bipartisan election administrative reform in recent years–and there has been a fair measure of it–Johnson’s account exposes key, and altogether familiar, structural obstacles.

First, we have thousands of voting jurisdictions around the country and a powerful fear among many politicians and administrators that somehow cooperation in national administrative reform will endanger local control. Without doubt, there is value in the variation among voting systems. It allows for experimentation and keeps administrators in close touch with voter experience and concerns. The risks, especially in national or statewide elections, are also clear. We have, as we saw in Florida in 2000, varying and inconsistent administrative and vote counting standards that do violence to equal protection requirements and to the credibility or acceptance of outcomes. In Florida, these problems were on dramatic display within a state, and had major recounts occurred simultaneously in multiple states, vote count standards and administrative practices would have been seen to vary just as widely across the country.

Second, we have too much electoral administration under partisan control, swayed by the fact or appearance of political pressure. It is remarkable that a Secretary of State would advise the Department of Homeland Security that he had a better understanding of what the Russians were–or were not–doing, and that he suspected the United States’ most senior government officials of making up or exaggerating the threat in order to help one candidate against another. This official may have believed what he said, or he may have felt that he had no political choice but to resist the offer of federal assistance or suffer the political consequences from “the base.” He was certainly not alone in feeling these pressures. He is a good example of what happens when an official gives entirely into them.

What can be done about this?

At a minimum, the election administration community should perform an “after action” audit of the 2016 episode and examine how the federal and state government performed in emergency conditions and how this collaboration can be improved. Senior officials have concluded that the Russians will keep up their nasty work: this is not the last of the elections they will hope to influence or disrupt. The Putin regime’s own “after action” report would have to take cheerful note of the conflict that immediately arose between the federal and state government over how to respond.

Any such “after action” deliberation should be public, perhaps in multiple venues, which is the best way to assure accountability. The Presidential Commission on Election Administration’s overall experience with the election administration community suggests that its experienced, professional leadership, in both parties, would look closely and responsibly at this problem. Peer pressure can help to discourage or limit the spread of irresponsible behavior like Secretary Kemp’s.

But longer-term, if a fear of compromising “states rights” will remain a challenge for state and local governments confronting a threat like the United States did in 2016, then we need reforms to lessen political pressures and incentives to grandstand on that issue. An official worried about “states rights” but committed to professional administration can and most of the time will work out a satisfactory protocol for cooperation with the federal government and cross-state programs of mutual aid. Add the politics, and the digging-in on states rights can become pure rhetoric in the service of a partisan goal. Then the chances of a constructive protocol coming to pass are reduced to none, or close to it.

The PCEA recommended increased professionalization–and de-politicization–of election administration. The story told by Secretary Johnson only underscores the urgency of getting to this goal.

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