The Elections Clause Obligates Congress to Enact a Federal Plan to Secure U.S. Elections Against Foreign Cyberattacks

Abstract

While foreign adversaries continue to launch cyber-attacks aimed at disrupting elections in the United States, Congress has been reluctant to take action. After Russia interfered in the 2016 election, cyber-security experts articulated clear measures that must be taken to secure U.S. election systems against foreign interference. Yet the federal government has failed to act. Congress’s reticence is based on a misguided notion that greater federal involvement in the conduct of elections unconstitutionally infringes on states’ rights. Both state election officials and certain congressional leaders operate under the assumption that federalism principles grant states primacy in conducting federal elections. This Comment dispels the myth that Congress must defer to states to regulate federal elections. The text of the Elections Clause in Article I, Section 4 of the U.S. Constitution confers to Congress final authority in determining the “Times, Places and Manner” of federal elections. Therefore, the system of administering U.S. elections is based on decentralization rather than federalism. The risk of foreign interference in U.S. elections was a precise reason the founders bestowed on Congress ultimate control over federal elections. States and municipalities lack the capacity to effectively combat foreign cyber invasion. This Comment makes the case that Congress has a responsibility to exercise its power under the Elections Clause to create a federal plan to secure voter registration databases and voting mechanisms against cyber-attacks in order to protect the integrity of our democracy.