A last-minute decision by the Obama administration to designate election systems as critical infrastructure drew intense criticism from state and federal elections organizations on Monday. US Homeland Security Secretary Jeh Johnson announced the move Friday with 30 minutes’ notice to the National Association of Secretaries of State and US Election Assistance Commission, an independent bipartisan federal agency that develops voluntary voting guidelines and certifies voting systems.
Officials at both agencies are criticizing the department for what they said was a failure to work with state officials to fully answer their questions about the designation before making the change. “We’re having trouble understanding exactly what they’re going to do, that we’re not already doing,” Connecticut Secretary of State Denise W. Merrill, who heads the national secretaries association, told The Associated Press. “States were already doing much of this (security work) themselves using very different products.”
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Discussions between Homeland Security Department officials and the states about whether to designate elections systems as critical infrastructure began in August after hackers targeted the voter registration systems of ultimately more than 20 states in the months prior to the election. But after many states expressed worries about the potential for increased federal regulation or oversight, Secretary Johnson said he wouldn’t make a decision until after the election.
The designation puts responsibilities on the Department of Homeland Security, requiring it to conduct security checks and provide information about emerging and imminent threats. The designation does not, however, require entities identified as critical infrastructure to participate. Much of the nation’s critical infrastructure is in the private sector. Other sectors identified as critical infrastructure include energy, financial services, health care, transportation, food and agriculture and communications.
Christy McCormick, a commissioner for the US Election Assistance Commission, said the decision potentially gives significant authority to numerous federal agencies. “We don’t know how this will work. This has not been thought out (and) the scope of what they’re speaking about is huge,” she said. The election process in the US is highly decentralized, with voters casting ballots in 185,000 precincts spread over 9,000 jurisdictions during the 2016 presidential election. It is also subject to rigorous and elaborate rules that govern how and what equipment is used.
Election infrastructure that would fall under the designation as defined by DHS includes storage facilities, polling places and vote tabulation locations, plus technology involved in the process, such as voter registration databases, voting machines and other systems used to manage the election process and report and display results. McCormick said Homeland Security ignored commissioners’ requests to delay a decision until there is more discussion. She called the move an example of “federal overreach” and said she will ask President-elect Donald Trump to review the decision.
The commission itself was apparently hacked after the election and the involved server remains offline. McCormick said no information was compromised. Johnson’s announcement came hours after US intelligence agencies released a declassified report that said Russian President Vladimir Putin ordered an influence campaign aimed at the US presidential election. The report said Russian intelligence services had “obtained and maintained access to elements of multiple US state or local electoral boards,” but didn’t elaborate.
The report also said there was no evidence the operation affected any vote tallies. The designation allows for sensitive security information that’s shared with DHS to be withheld from the public, which U.S. officials say will allow for frank discussions that would prevent bad actors from learning about vulnerabilities. DHS would also be able to grant security clearances when appropriate and provide more detailed threat information to states.
Merrill said the injection of secrecy into the process was her “chief concern.”
“Fundamentally, elections are different than anything else, in the sense that you must maintain the transparency and accountability of your elections to the American public,” Merrill said. In the balance between security and transparency, she said elections systems need to “err on the side of transparency.”