The Elections Clause Obligates Congress to Enact a Federal Plan to Secure U.s. Elections Against Foreign Cyberattacks

• Publication year: 2020

The Elections Clause Obligates Congress to Enact a Federal Plan to Secure U.S. Elections Against Foreign Cyberattacks

Suman Malempati

THE ELECTIONS CLAUSE OBLIGATES CONGRESS TO ENACT A FEDERAL PLAN TO SECURE U.S. ELECTIONS AGAINST FOREIGN CYBERATTACKS

Abstract

While foreign adversaries continue to launch cyberattacks aimed at disrupting elections in the United States, Congress has been reluctant to take action. After Russia interfered in the 2016 election, cybersecurity experts articulated clear measures that must be taken to secure U.S. election systems against foreign interference. Yet the federal government has failed to act. Congress's reticence is based on a misguided notion that greater federal involvement in the conduct of elections unconstitutionally infringes on states' rights. Both state election officials and certain congressional leaders operate under the assumption that federalism principles grant states primacy in conducting federal elections.

This Comment dispels the myth that Congress must defer to states to regulate federal elections. The text of the Elections Clause in Article I, Section 4 of the U.S. Constitution confers to Congress final authority in determining the "Times, Places and Manner" of federal elections. Therefore, the system of administering federal elections is based on decentralization rather than federalism.

The risk of foreign interference in U.S. elections was a precise reason the founders bestowed on Congress ultimate control over federal elections. States and municipalities lack the capacity to effectively combat foreign cyber invasion. This Comment makes the case that Congress has a responsibility to exercise its power under the Elections Clause to create a federal plan to secure voter registration databases and voting mechanisms against cyberattacks in order to protect the integrity of American democracy.

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Introduction.............................................................................................423

I. The Current Cybersecurity Threat to U.S. Election Infrastructure..............................................................................427

A. Russian Interference in the 2016 U.S. Election ........................ 428
B. Recommendations of Cybersecurity Experts to Strengthen U.S. Election Infrastructure...................................................... 432
C. States Responded Inadequately and Ineffectively to Russian Cyberattacks ............................................................................. 437

II. The Landscape of Congressional Authority over Federal Elections.........................................................................................440

A. Congressional Authority Under the Reconstruction Amendments and the Voting Rights Act.................................... 441
B. The Demise of the Voting Rights Act and Shifting State-Federal Authority to Regulate Elections .................................. 446
C. The Elections Clause Grants Congress Broad Authority to Regulate Federal Elections ...................................................... 448

1. Decentralization Versus Federalism .................................. 449
2. Congress Has Used Its Election Clause Authority to a Limited Degree ................................................................... 450

III. Congress Should Act to Protect U.S. Election Infrastructure..............................................................................454

A. Congress Has an Obligation Under the Elections Clause to Protect U.S. Democracy........................................................... 454
B. Congress Has a Duty to Secure U.S. Elections Against Foreign Interference Because States Are Ill-Equipped and Reluctant to Do So ........................................................................................ 457
C. Congress Must Enact a Federal Plan to Preserve the Right of All Citizens to Vote ................................................................... 459

IV. A Proposed Federal Plan to Secure U.S. Elections ...............462

A. Congress Should Establish Binding Federal Standards for States to Register Voters, Maintain Secure Voter Databases, and Check-in Voters at the Polls .............................................. 463
B. Congress Should Mandate Uniform Paper Ballots for All Federal Elections ...................................................................... 465
C. Congress Should Require All States to Submit to Federal Election Audits .......................................................................... 466

Conclusion.................................................................................................467

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Introduction

Does federalism prevent Congress from taking action to secure U.S. elections against foreign cyberattacks? Since its founding, the United States has grappled with how to balance the authority of state governments against that of the federal government in managing elections.¹ Article I, Section 4 of the U.S. Constitution, often called the "Elections Clause," grants each state the power to designate the "Times, Places and Manner" of federal elections, but it also states that "Congress may at any time by Law make or alter such Regulations."² Despite the seemingly sweeping power designated to congress by the Elections clause, scholars and the supreme court have traditionally viewed the regulation of elections and the voting process through the lens of state sovereignty.³ Currently, U.S. election infrastructure consists of a heterogeneous array of voter registration procedures, registered voter databases, pollbooks, voting machines, and vote counting mechanisms that vary from state to state.⁴ states are also inconsistent in the degree to which they delegate election management to counties and municipalities.⁵

Two hundred and thirty years ago in the Federalist Papers, Alexander Hamilton explained the rationale for embedding Congress's power to regulate elections into the constitution.⁶ Hamilton explained that leaving control of federal elections solely in the hands of state governments could create an existential risk to the nation.⁷ With the Elections clause, the drafters of the constitution "reserved to the national authority a right to interpose, whenever extraordinary circumstances might render that interposition necessary to its safety."⁸ Hamilton presciently recognized that the threat of foreign interference

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in U.S. elections would be such an extraordinary circumstance.⁹ He wrote in Federalist 59 that "a firm union of this country, under an efficient government, will probably be an increasing object of jealousy to more than one nation of Europe; and that enterprises to subvert it will sometimes originate in the intrigues of foreign powers."¹⁰

In 2016, for the first time in the history of this nation, Hamilton's prediction of foreign interference came true when Russia attempted to interfere with and influence the U.S. presidential election.¹¹ Along with a campaign of misinformation, Russia directly attacked U.S. election systems.¹² Beginning as early as 2014, the Russian government directed extensive activity against U.S. election infrastructure at the state and local levels.¹³ A 2018 report by the Senate Intelligence Committee revealed that Russian operatives attempted to hack into the election systems of each of the fifty states.¹⁴ Russia attacked a point of vulnerability in U.S. election infrastructure—states' supposed primacy in conducting federal elections.¹⁵ According to the Senate Intelligence Report, "[s]tate elections officials, who have primacy in running elections, were not sufficiently warned or prepared to handle an attack from a hostile nation-state actor."¹⁶ Hamilton's interpretation of the Elections Clause suggests that Russian aggression is a clear reason for Congress to exert its constitutional authority to protect U.S. election infrastructure.¹⁷

Despite the obvious risk that our democracy may be undermined by foreign interference, some members of Congress have expressed reluctance to take a greater role in protecting federal elections.¹⁸ State officials have also pushed back and even rejected federal help in securing their state and local election

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systems out of concern for maintaining state sovereignty.¹⁹ Although Congress has previously overridden the right of states to conduct elections by passing the Voting Rights Act of 1965 (VRA) under the Fifteenth Amendment, it has yet to invoke its full Elections Clause powers.²⁰ With its holding in Shelby County v. Holder in 2013, the Supreme Court gutted the VRA, tilting the balance toward state autonomy in conducting elections.²¹ Therefore, Congress can no longer rely solely on its power to enforce the Reconstruction Amendments to supersede state authority over elections.²²

This Comment argues that the threat of foreign attacks against U.S. election infrastructure requires Congress to exercise its power under the Elections Clause to enact legislation establishing a uniform system for federal elections.²³ This Comment takes the position that foreign cyber intrusion is the type of existential threat for which the Elections Clause gives Congress the authority to act. Because the Constitution grants Congress the ultimate authority to regulate federal elections, the creation of a federal system for elections does not intrude on state sovereignty.

Part I describes the current cybersecurity threat to U.S. election infrastructure. A paucity of federal regulations poses significant risks in the face of such twenty-first century threats. This Part describes the scope of Russia's attacks on state and local election systems during the 2016 election and catalogs the recommendations of cybersecurity experts in how best to secure election infrastructure against future attacks. By detailing how state and local election officials responded ineffectively to cyberattacks in 2016 and leading up to the 2018 election...