[Image via NASS]
Secretaries of State from across the nation were in Washington, DC this past weekend for the annual Winter Meeting of the National Association of Secretaries of State (NASS) – and before leaving town, the membership approved two resolutions registering NASS’ position on key issues in the ongoing struggle to balance federal and state control over elections:
NASS Resolution Reaffirming the NASS Approach to Federal Legislation (originally adopted 2007, reaffirmed 2012 and 2017)
The nation’s Secretaries of State believe that our federal and state governments must work in cooperation to serve the citizens of the United States. To facilitate the appropriate balance for an equal and effective partnership, the National Association of Secretaries of State (NASS) urges federal officials to adhere to the following guidelines when developing laws and regulations:
1. Members of Congress should respect our country’s legal and historical distinctions in federal and state sovereignty and avoid preemptions of state authority when drafting federal legislation.
2. Federal legislation should include a reasonable timeframe for implementing state requirements or programs.
3. Federal legislation that affects the office and duties of the Secretaries of State should be drafted with input from NASS or a representative sample of the Secretaries of State who would be impacted by the bill.
4. Federal legislation that mandates changes to state laws or regulations should include full funding to support those changes.
5. Federal legislation should not curtail state innovation and authority solely for the sake of creating uniform methods among the states; all legislation should grant states maximum flexibility in determining methodologies for properly and effectively carrying out the duties of Secretaries of State, including the protection of voting rights.
NASS Resolution Opposing the Designation of Elections as Critical Infrastructure (adopted 2017)
WHEREAS, the United States Constitution recognizes the authority of the legislatures of each State to regulate the times, places, and manner of holding federal elections; and
WHEREAS, the election infrastructure of the United States is utilized to conduct federal, state, and local elections alike; and
WHEREAS, on January 6, 2017, U.S. Homeland Security Secretary Jeh Johnson announced that he had designated election infrastructure as a subsector of the existing Government Facilities critical infrastructure sector; and
WHEREAS, Secretary Johnson’s scope of the designation of elections as critical infrastructure includes physical elements, such as “storage facilities, polling places, and centralized vote tabulations locations,” to which cybersecurity issues do not apply, “voter registration databases,” of which redundant copies are separately stored, and “other systems to manage the election process and report and display results,” which are not critical to the determination of official certified election results; and
WHEREAS, Section 1016(e) of the USA Patriot Act of 2001 (42 USC § 5195c(e), the “Critical Infrastructure Protection Act”) defines critical infrastructure as, “systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters[,]”; and
WHEREAS, the election infrastructure in the United States is highly decentralized and constitutionally under the purview and control of the states and their local jurisdictions; and
WHEREAS, the opposition to designating elections as critical infrastructure is bipartisan, as evidenced by a September 28, 2016, letter signed by Paul D. Ryan, Speaker of the United States House of Representatives, Nancy Pelosi, Democratic Leader of the United States House of Representatives, Mitch McConnell, Majority Leader of the United States Senate, and Harry Reid, Democratic Leader of the United States Senate, stating, “we would oppose any effort by the federal government to exercise any degree of control over the states’ administration of elections by designating these systems as critical infrastructure[,]”; and
WHEREAS, Secretary Johnson stated that he would not designate elections as critical infrastructure without a thorough discussion with members of this body; and
WHEREAS, questions submitted by numerous members of this body and other election officials remain unanswered; and
WHEREAS, numerous members of this body and other federal, state, and local election officials have publicly opposed the designation of elections as critical infrastructure; and
WHEREAS, several states have discovered attempted intrusions by the Department of Homeland Security under former Secretary Johnson, which need to be thoroughly investigated by the Department of Homeland Security’s Inspector General, including regarding such attempted intrusions to the designation process; and
WHEREAS, on February 7, 2017, current U.S. Homeland Security Secretary John F. Kelly indicated during testimony before the U.S. House of Representatives’ Homeland Security Committee that he intends to uphold the former secretary’s designation of elections as critical infrastructure, and;
WHEREAS, the U.S. Department of Homeland Security has no authority to interfere with elections, even in the name of national security;
NOW THEREFORE BE IT RESOLVED that the National Association of Secretaries of State (NASS) opposes the designation of elections as critical infrastructure.
It’s worth noting that NASS is doing more than just talk about cybersecurity – it also unanimously formed an Election Cybersecurity Task Force tasked with developing and advancing NASS priorities and plans regarding state election cybersecurity issues, including strategies for building effective partnerships with public/private stakeholders and the federal government, including the U.S. Department of Homeland Security.
Per NASS policy, both resolutions remain in effect for five years unless amended or rescinded. While neither resolution has any legal effect on the policy debates in Washington, the language of both suggest that NASS continues to value the strong role of states in the administration of American elections and will fiercely defend the power of Secretaries to set and direct election policy in their home states.
In short, while federal policymakers at both ends of Pennsylvania Avenue may have ideas about elections, NASS and its members will fight to keep that authority at the state level.
It’s not news, but it’s definitely noteworthy as 2017 continues … stay tuned.