William & Mary Bill of Rights Journal
Abstract
Since the 2016 U.S. presidential election, the threat of foreign interference in U.S. elections has loomed large in the minds of the American public. During the 2016 campaign season, Russian government-backed hackers infiltrated the networks and computers of the Democratic National Committee (DNC), the Democratic Congressional Campaign Committee (DCCC), and various campaign officials, harvesting private information and installing spyware and malware for ongoing intelligence purposes. U.S. intelligence officials have indicated that, using similar tactics, the Russian hackers also targeted election systems and officials in all fifty states, successfully breaching at least two of those states’ election systems, Illinois and Florida. The purpose of these hacks was not to damage or otherwise incapacitate the nation’s electoral infrastructure, but rather to gather information that could be used in a larger, comprehensive, and ongoing misinformation campaign designed to undermine the public’s trust in democratic and governmental institutions, influence public opinion and, ultimately, impact the election itself.
The Russian campaign in 2016 was wildly successful, and the U.S. intelligence community has made it clear that the Russians have every intention of continuing these types of malign cyber-operations in future elections. Although Russia may be the poster child for this type of electoral interference, U.S. officials have stated that other foreign powers have taken note of the Russian success and will likely be engaged in similar sorts of ideological warfare in the years to come. This new threat has prompted ongoing discussions regarding the country’s election security and state and local officials’ preparedness—or rather lack thereof—to handle this growing national security issue. Many of these debates involve questions of federalism given the overlapping governmental interests and responsibilities this issue implicates: election administration, a constitutional privilege entrusted to the states; and national security, a sphere traditionally understood to fall under the federal government’s domain.
The Framers of the U.S. Constitution undoubtedly recognized that foreign threats would always pose a danger to the United States’ continued independence, and, to that end, they debated at length to achieve the most effective and efficient allocation of governmental defense responsibilities between the states and the federal government. Naturally, a document written in the late eighteenth century, a time when warfare was strictly understood to be a tangible threat, could not have predicted that the United States’ democratic processes could be attacked without the enemy ever needing to step foot on American soil. Notwithstanding the Framers’ unfamiliarity with modern day technology, they nonetheless contemplated the two governmental responsibilities foreign electoral interference directly implicates: maintaining a republican form of government in the states and defending the nation from foreign invasions. Article IV, Section 4 of the U.S. Constitution specifically entrusts the federal government with these dual obligations, proclaiming “[t]he United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.” Based on the plain text and underlying rationale of these provisions, it is clear that if alive today, the Framers would consider defending the states against foreign electoral interference as an obligatory duty falling squarely on the federal government’s shoulders.
This Note takes the position that foreign election interference and hacking attempts should be understood as an “invasion” within the scope of Article IV, Section 4. This “invasion” poses an acute and unique risk to the states’ “Republican Form[s] of Government” such that the federal government has a constitutional duty to defend against it. It is important to note that the argument here does not posit an affirmative, judicially enforceable obligation on the federal government to act. Rather, “duty” should be understood as a judicially cognizable constitutional basis that further justifies greater federal involvement in and support of election security and administration. Nor does this Note advocate for a sweeping, pre-emptive, one-size-fits-all federal legislative or regulatory framework for election administration. Such action would not only completely divest state and local jurisdictions of a constitutionally vested power, but would also likely create more problems than it would purportedly solve. Historically, the states have always fiercely resisted attempts by the federal government to interpose itself into the states’ administration of elections, and the prospect of a complete federal takeover would in all likelihood make implementation near impossible. Instead, this Note advocates for the federal government to take a more proactive role in assisting states and localities to fund and secure their election systems generally, and further articulates why such action would be both consistent with the Framers’ intentions and beneficial to the nation’s national security as a whole.
Part I provides a general overview of the current state of election administration and security in the U.S. It also discusses how systematic problems with funding, varying cybersecurity standards and expertise, and inconsistent sharing and reporting of information can be exploited and exacerbated in the context of foreign interference attempts. Part II then briefly discusses how the federal Elections Clause provides the constitutional authority for the national government to legislate and regulate election administration, as well as highlighting federal legislation that already exists in this area. Finally, Part III examines the challenges involved in applying existing international law to non-damaging cyber-operations like the Russian election hacks and attempts to characterize them through comparison to the 2014 Sony hack. It also analyzes the Framers’ intent and rationale for their inclusion of Article IV, Section 4 and how its text and structure command the importance with which they viewed the provision’s obligations.