New Federal Protections of the Right to Vote or Overstepping? Presidential Policy Directive 21

Posted by Maya Efrati, Shane Wade on January 25, 2017

On January 6th, former Secretary of Homeland Security secretary Jeh Johnson designated United States elections as part of the critical infrastructure outlined in Presidential Policy Directive 21 (PPD-21). The decision has received equal parts praise and criticism. Given FairVote’s longstanding support for a constitutional right to vote, we wanted to examine Johnson’s designation.

PPD-21, available here, was issued in February 2013 and calls for a “national unity of effort to strengthen and maintain secure, functioning, and resilient critical infrastructure.” It sets out not only a clear overall policy on securing our elections, but also details step-by-step requirements and responsibilities for each agency involved in the process. There are significant risks to our complex election system, with often outdated equipment and convoluted issues to take into account. This new directive is an attempt by the federal government to make a proactive and coordinated effort to protect our vote.

With this policy, state and local governments can - if they choose - receive federal assistance, share information, and use their resources efficiently. Elections will be more transparent, as different processes become consistent and organized. More secure and stable elections mean more more voter confidence in our democracy, a win for all.

Mississippi Representative Bennie Thompson praised Secretary Johnson for the designation. "In the long term, this will put our electoral systems on a more secure footing and maintain public confidence in our elections," said Rep. Thompson in Politico. "I commend Secretary Johnson for making this important decision."

But the scope of the designation is controversial. Its critics, including Commissioner Christy McCormick of the Election Assistance Commission, are skeptical, and believe that it extends the long arms of the federal government too far. McCormick issued a lengthy statement that highlights its vagueness and asserts that the action politicizes elections, among other flaws. “Elections officials asked for more time, conversation, and discussion and a thorough understanding of the scope and benefits of the critical infrastructure designation,” Commissioner McCormick said in his statement. “That request was flat out denied by the unilateral action of Secretary Johnson.”

Additionally, the U.S. Election Assistance Commission, which is the bipartisan agency responsible for administering the new policy, has indicated that it needs more specificity in its tasks. Chairman Thomas Hicks stated just this past week that the agency will take part in upcoming meetings to get clarity on the meaning of this designation, especially in light of the differing priorities of the new administration.

However, the recent election has put a spotlight on the many potential problems of the current system — particularly those tied to running “democracy on the cheap,” such as outdated voting equipment, inefficient voter registration databases, and insufficient accountability and transparency in election administration. Such practices and underfunded elections contribute to a reality where the United States trails international norms. Moreover, public confidence in elections has reached all time lows, emphasizing the need for action. This newly instituted policy will allow our governments, whether at the federal, state or local level, access to a better toolkit for addressing these critical issues.

Underlying this debate is the fact that there is no explicit, affirmative right to vote in the Constitution. If there were a constitutionally protected right to vote, the federal government would have a clearer role in protecting the security of elections, and the concerns of both sides are addressed. Representatives Keith Ellison (D-MN) and Mark Pocan (D-WI) have continually proposed an amendment to the Constitution that would provide every citizen of legal voting age the “fundamental right to vote in any public election held in the jurisdiction in which the citizen resides,” while enabling Congress with the power to enforce and implement the law through appropriate legislation. The most recent introduction of the bill, H.J. Res. 25,  came in the 114th Congress and secured 40 co-sponsors.

Looking forward, this is an opportunity to combine the best of national standards and protections of the right to vote with state and local innovations. Only by taking advantage of this opportunity for reform can we secure the right to vote for everyone.

Photo Courtesy: Barry Bahler 

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