The Presidential Advisory Commission on Election Integrity offered its first public request this week, as Vice Chair and Kansas Secretary of State Kris Kobach requested voter information from every state. That single request has likely done long-lasting damage to the political ability of the federal government to regulate elections. In particular, any chance that meaningful election security issues would be addressed at the federal level before 2020 worsened dramatically this week. The request is sloppy, as Charles Stewart carefully noted, and, at least in some cases, forbidden under state law. The letter was sent to the wrong administrators in some states, it requests data like “publicly-available . . . last four digits of social security number if available” (which should never be permissible), and it fails to follow the proper protocol in each state to request such data. Response from state officials has been swift and generally opposed. It has been bipartisan, ranging from politically-charged outrage, to drier statements about what state disclosure law permits and (more often) forbids. But the opposition reflects a major undercurrent from the states to the federal government: we run elections, not you.
The Constitution’s default rules provide that the state legislatures choose the “times, places and manner of holding elections for Senators and Representatives,” but Congress has the power to “make or alter such regulations.” Congress has slightly less power over presidential elections and very little over state or local elections (but more so since Reconstruction). And in American history, Congress has been reluctant to enact laws regulation elections except in a handful of instances (including major laws like the Voting Rights Act). For the most part, elections are primarily a matter of state regulation and control.
The 2016 presidential election highlighted this decentralized system when concerns about election security arose. As I noted in the Illinois Law Review Online, the Federal Bureau of Investigation and the Department of Homeland Security investigated attempted breaches into voter registration databases in late 2016. There has been increased, and justifiable, concern about election system security—thankfully, nothing (so far) that has undermined the outcome of any election.