[EL] Cats Scratch Their Rescuer

[Eliezer S Poupko]

I feel compelled to defend the "endgame" of greater (though not necessarily
complete) national control over the administration of federal elections.

Query to Steve (if I may): When you speak of greater federal control over
elections coming "at the cost of popular sovereignty," do you not mean *state
sovereignty*? For I don't see how it in any way advances *popular* sovereignty
to allow wide variation in access to voting, for example, based solely on
where a citizen happens to live, not to mention wide variation in security
and reliability.

Furthermore, if we are discussing sovereignty in terms of where ultimate
authority for a decision resides, then I think you must agree that
sovereignty over the "Time, Places and Manner" of federal elections resides
not with the states but with the federal government. For while you say the
Constitution "promises" the highly decentralized administration we have
today, the text (and its judicial interpretation) as you know gives
Congress ultimate authority to decide these matters (with only the
particular exception regarding "chusing" Senators). I'm no scholar of
constitutional history, but I assume the framers--to the extent one values
their opinion on the matter--had good reasons for not leaving ultimate
authority over federal election administration to the states.

Finally, regarding your confidence that "over time, dispersed entities can
repel" security threats, I can only wonder how much time this will
realistically take? And can we afford that much time? By my reckoning, we
need security improvements yesterday.

All best,
-Eli



On Wed, Jul 12, 2017 at 2:00 PM, <
law-election-request at department-lists.uci.edu> wrote:

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>    1. Re: Cats Scratch Their Rescuer (Steve Hoersting)
>    2. Re: Cats Scratch Their Rescuer (David Ely)
>    3. ELB News and Commentary 7/11/17 (Rick Hasen)
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> ----------------------------------------------------------------------
>
> Message: 1
> Date: Tue, 11 Jul 2017 15:32:24 -0400
> From: Steve Hoersting <hoersting at gmail.com>
> To: Justin Levitt <levittj at lls.edu>
> Cc: Election Law Listserve <law-election at department-lists.uci.edu>
> Subject: Re: [EL] Cats Scratch Their Rescuer
> Message-ID:
>         <CACBduo-BwEyupNxSJifp4S=Hd1o59CjzJjQ_GjXCyGwZL2ZKNw at mail.
> gmail.com>
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>
> Quick responses, Justin:
>
> I, too, want to "know about" "real risks." I remain confident that, over
> time, dispersed entities can repel them.
>
> I hypothesize "endgame" because, if memory serves, and speaking generally,
> the project to nationalize voting administration has long been a policy in
> search of a rationale. (And I recall the basket of rationales put forth
> over several years to advance McCain-Feingold). Getting to nationalization
> of voting administration under the rubric of national security is a
> powerful trump card (excuse the pun) -- a big broom that sweeps clean --
> and one difficult for citizens to verify ... at the cost of popular
> sovereignty. So I would caution relinquishing very little, and prefer
> dispersed administration, as the Constitution promises.
>
> That you suggest "assistance" is encouraging. Still, that "assistance" --
> especially once formalized in court-approved legislation -- can lead
> gradually to usurpation would be my watchwords.
>
> Regarding your "any and all"--  and a "more broadly" of my own: I want to
> be sure we do not drift from popular sovereignty to "bureaucratic
> sovereignty," if you will. And I can think of few areas where such concerns
> are more pressing than in the mechanics of vote tabulation.
>
> Thanks for the reply. All the best,
>
> Steve
>
>
> On Tue, Jul 11, 2017 at 2:52 PM, Justin Levitt <levittj at lls.edu> wrote:
>
> > Oh, no, I don't believe that the questions are passe.  And my skepticism
> > about complete federal control of voter administration is both
> theoretical
> > and pragmatic.
> >
> > I offered my response simply as one person who has some serious concerns
> > about (and wants to know more about real risks posed by) "Russia, Russia,
> > Russia" -- and there are a bunch of discrete concerns unfortunately
> > conflated, involving at least pursuit of information or influence,
> pursuit
> > of electronic breaches of state systems, and perhaps other strands still
> --
> > without having any sort of personal "endgame" leading to one federal
> agency
> > conducting all of our elections.  If that's the master plan, nobody's
> > filled me in.
> >
> > Also, as I understand it, the designation of state election systems as
> "critical
> > infrastructure <https://www.dhs.gov/critical-infrastructure-sectors>"
> > does not mean that DHS runs elections (hence the black helicopters) any
> > more than the designation of "commercial facilities
> > <https://www.dhs.gov/commercial-facilities-sector>" as critical
> > infrastructure means that DHS runs your local mall.  What it does mean
> > <https://www.dhs.gov/news/2017/01/06/statement-
> secretary-johnson-designation-election-infrastructure-critical>
> > is that DHS, which likely has some capacity for detecting cyberattacks
> that
> > your local county or municipal official may not, can offer detection and
> > inoculation assistance to officials *who want it*, and facilitates what
> > might otherwise be classified or sensitive federal-state discussions.
> >
> > More broadly: I hope that the reaction to one deeply flawed federal
> > advisory body isn't a proxy for denigration of any and all federal
> services
> > (or even any and all federal advisory bodies), any more than the reaction
> > to one [X] becomes a proxy for denigration of any and all [X].  And I
> > suspect *everybody* has their favorite example to fill in in place of the
> > X.
> >
> > On 7/11/2017 11:34 AM, Steve Hoersting wrote:
> >
> > Justin:
> >
> > As to the the second part of your first paragraph: good for you!
> Seriously.
> >
> > As to your numeric series of premises and conclusions, your 4) is
> > inapposite.
> >
> > My point is, and remains, that the Constitution properly (as a matter of
> > policy and popular sovereignty, to say nothing of federalism) leaves
> voter
> > administration widely dispersed under the authority of the several states
> > (subject to input from Congress).
> >
> > It should remain with the several states, formally and functionally. That
> > is my point.
> >
> > If your point is opposite -- that we've nothing to concern us -- I would
> > ask you: Do you think Bernie got a fair shake at the DNC?
> >
> > If not, have you any concern that "shakes" of that kind could become far
> > less "fair", or perhaps less well known to the voting public, were vote
> > tabulation filtered, functionally speaking, through a single federal
> > clearing house?
> >
> > Do you suppose the Framers would have changed their approach to the
> > federal Constitution had the broad sheets of any country treated them to
> > repeated stories of "British meddling" in our elections?
> >
> > Do you suppose such questions -- whatever their age or origins -- are
> > passe? Or, to bring the question quite up-to-date, what is the basis for
> > *your* "skeptic[ism] of 'nationalization of voter administration in a
> > single federal agency'"? For I assume you have one... and that your
> > objection isn't incidental.
> >
> >
> >
> >
> >
> >
> > On Tue, Jul 11, 2017 at 1:53 PM, Justin Levitt <levittj at lls.edu> wrote:
> >
> >> I have been quite outspoken about seeing value in some federal role in
> >> the elections process (perhaps, as a former federal official, that's
> >> natural), and quite skeptical of "nationalization of voter
> administration
> >> in a single federal agency."
> >>
> >> And I don't see why 1) wanting to understand the ways in which foreign
> >> governments sought to affect the election process (FWIW, I think Bluman
> v.
> >> FEC was wrongly decided, but it's actually the law), 2) the ways in
> which
> >> Americans may or may not have facilitated that effort, and 3) ways to
> >> bolster cybersecurity that don't unduly impact legitimate American
> access
> >> to the franchise necessarily lead to 4) black helicopters.
> >>
> >> --
> >> Justin Levitt
> >> Professor of Law
> >> Associate Dean for Research
> >> Loyola Law School | Los Angeles
> >> 919 Albany St.
> >> Los Angeles, CA  90015213-736-7417 <%28213%29%20736-7417>ssrn.
> com/author=698321
> >> @_justinlevitt_
> >>
> >> On 7/11/2017 10:26 AM, Steve Hoersting wrote:
> >>
> >> I see that:
> >>
> >> *The nation?s Secretaries of State sent a clear message to the White
> >> House.  **Members of the National Association of Secretaries of State
> >> meeting in Indianapolis unanimously passed a bipartisan resolution
> >> underscoring the Constitutional rights of states to administer local,
> state
> >> and federal elections.*
> >>
> >>
> >> If "underscoring [and preserving] the Constitutional [power] of states
> to
> >> administer local, state and federal elections" is the issue, the several
> >> Secretaries of State have no greater friend than Donald J. Trump.
> >>
> >> For it is evident that nearly half the endgame of "Russia, Russia,
> >> Russia" is to justify the (formal or functional) nationalization of
> voter
> >> administration in a single federal agency, be it DHS or elsewhere. What
> >> were the buzzwords we heard repeatedly last Autumn? "...critical
> >> [something] architecture"?
> >>
> >> *
> >>
> >> Sanders supporters should be no less concerned. (Whether they are or
> not,
> >> I cannot say).
> >>
> >> Thank you,
> >>
> >> Steve
> >> _______________________________________________
> >>
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> >
> >
> >
> > --
> > Stephen M. Hoersting
> >
> >
> >
>
>
> --
> Stephen M. Hoersting
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> ------------------------------
>
> --
Eliezer S. Poupko
PhD in Public Policy, 2017
LBJ School of Public Affairs
University of Texas at Austin
epoupko at utexas.edu
EliPoupko.com
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