The Department of Homeland Security has begun begun considering declaring the election a "critical infrastructure," giving it the same control over security it has over Wall Street and the electric power grid. Get the full story.
Here are some statements from FedSoc experts:
The Department of Homeland Security does not have the legal authority to interfere with states’ election systems without their permission. While the federal government has the general power to protect the nation’s cyber infrastructure, it cannot intrude into areas of state sovereignty without clear constitutional mandate. Article I, Section 4 of the Constitution recognizes the authority of the states to regulate the times, places, manner of elections, subject to congressional regulation. As far as I am aware, Congress has not clearly decided to regulate the information systems of state electoral systems or delegated this authority to DHS.
--John Yoo, Emanuel S. Heller Professor of Law at University of California at Berkeley School of Law
The Constitution specifically gives the states the power to administer elections, and to determine the qualifications of all voters in both state and federal elections. Congress only has authority over the time, place, and manner of federal elections and any attempt by the federal government to take over the administration of elections through a “critical infrastructure” designation would be unconstitutional and an invasion of authority reserved to the states.
--Hans von Spakovsky, Senior Fellow at the Heritage Foundation. von Spakovsky has written on the issue for Conservative Review.
There is no federal power to control or secure elections; each state administers its own elections, restricted only by constitutional protections for voting rights. It may make sense for states to request federal support here, but it would set a dangerous precedent for a federal agency to unilaterally take over state electoral processes.
--Ilya Shapiro, Senior Fellow in Constitutional Studies, the Cato Institute
Elections are and ought to be the province of the states. The Constitution provides a very limited role for the federal government in elections. It may override state rules the time, place, and manner for elections to the U.S. House, and the time and manner for the Senate. It can also set the time for choosing presidential electors. It has no role in the actual administration of elections, and no role in elections for state office at all.
One of the great strengths of the American election system is that there is no national network or infrastructure that can be taken down. Hacks of isolated local systems can occur, but the system is so thoroughly decentralized that it is all but immune to any system-wide or systematic attack. We have already successfully held elections through civil war and invasion of our nation by a hostile power during the War of 1812. And, though many in Washington won't want to hear it, delays in certifying election results or temporary vacancies in some federal elective offices due to indecisive or fraudulent elections, don't adversely affect the daily lives of Americans like a breakdown of the power grid, the financial sector, or other "critical infrastructures" identified by Secretary Johnson. Indeed, in our history we have frequently had delays in certifying elections, and occasional need to re-run elections, with no "debilitating effect on security, national economic security, national public health or safety, or any combination thereof." One reason for that is that the federal government had not played a role in nationalizing elections or election security, thus assuring that problems remained isolated and local.
Homeland security is critical, but it is also critical that the Department of Homeland Security knows and respects its limits.
--Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School