While here at DEFCON Voting Village this week, there is clearly more energy, more concern, and a greater sense of patriotism about defense of our democracy and securing our elections than I’ve yet to see.  And that has me thinking about how the federal government and states’ governments need to cooperate for the benefit of our democratic republic.

The evidence is clear here in Las Vegas: election security continues to be the hot issue in the public eye, the media, and yes, even Congress (despite perceptions).  Insofar as Congress is concerned, here is a common refrain:

“The Federal government should not gain more control over state elections.”

I believe that sentiment is absolutely correct.  States legislatures write the own state’s election laws.  State elections offices make regulations and define requirements for how the state’s local election offices should conduct election for the state.  Traditionally, the Federal government has no role in defining how any state and its localities elect governors, state legislators, county commissions, and the proverbial dogcatcher.

The Basic Misunderstanding

Current proposed Federal legislation is not about Federal interference in these state-internal matters. Current legislation is, however, focused on uniform safeguards for Federal elections: the processes of electing the President and Vice-President, the Senate, and the House of Representative.

The U.S. Constitution, Article 1, Section 4, gives Congress the power to pass legislation that defines how elections must be performed, but only for elections to Federal office. And Congress has used the power repeatedly, in legislation that has covered a wide range:

  • Voting rights,

  • The methods of voter registration,

  • The right of everyone to cast a ballot independently and privately (regardless of physical or other limitations),

  • Special assistance for military and overseas voters, and even

  • How states must operate voter registration databases.

Most recently, in 2018 the last $380 million of HAVA funds was released to states for spend on — among other things — methods to improve the cyber-security of voter registration systems. (The Help America Vote Act (HAVA 52 USC §§ 20101 – 21145) was passed in 2002.)

If rightly understood — and that’s currently not the case universally — current proposed Federal legislation is in the same vein as HAVA, NVRA, UOCAVA, and other Federal law alphabet soup.  Consistent with those laws, current legislation places funded mandates on states (including their local elections offices) within their responsibility for conducting elections for those three types of Federal office (President, Senators, and Representatives).

None of this legislation past or currently proposed makes any stipulations about how states and their localities conduct elections for state and local matters. States will often choose to follow Federal requirements for state and local elections, but that choice is part of each state’s prerogatives.  For instance, after HAVA banned the non-accessible “lever machines” for voting, states like NY and CT could have chosen to continue to use them for elections that did not include Federal offices, while using newer and federally compliant equipment for elections that included Federal offices.  Instead, they chose to settle on having the newer kind of voting machines for all elections in the state.

Why Is It Important Now?

This is important now because of greater-than-ever serious threats to integrity of elections. To connect that point to this mischaracterized notion of “Federal control” over elections, see my next post on that.