Borrowing a pen and a phone from his outgoing boss, Secretary of Homeland Security Jeh Johnson, in a Friday night drop, announced he has designated elections in the United States as critical infrastructure in accordance with Presidential Policy Directive (PPD) #21 (2013). The scope of the designation is vast and includes “at least the information, capabilities, physical assets, and technologies which enable the registration and validation of voters; the casting, transmission, tabulation, and reporting of votes; and the certification, auditing, and verification of elections.” The list provided by DHS includes, but “is not limited to”: storage facilities, which may be located on public or private property that may be used to store election and voting system infrastructure before Election Day; polling places (including early voting locations), which may be physically located on public or private property, and may face physical and cyber threats to their normal operations on Election Day; centralized vote tabulation locations, which are used by some states and localities to process absentee and Election Day voting materials; information technology infrastructure and systems used to maintain voter registration databases, voting systems and associated infrastructure, which are generally held in storage but are located at polling places during early voting and on Election Day; information technology infrastructure and systems used to manage elections, which may include systems that count, audit, and display election results on election night on behalf of state governments, as well as for post-election reporting used to certify and validate results. In a call to the National Association of Secretaries of State on Thursday, billed by DHS as a call to inform the Secretaries about Secretary Johnson’s current thinking on whether or not to designate elections as critical infrastructure, the DHS Secretary stated, “This designation is simply the right and obvious thing to do.” Secretary Johnson repeated this sentence in his Press Release on Friday night, clearly indicating that he was reading off a draft of the Press Release on Thursday when he spoke to the States’ Secretaries and that his “thinking” was not actually open to further consideration or discussion with the States’ Secretaries, who are the Chief Election Officials in most of the fifty States. I challenge Secretary Johnson’s statement. It is not “simply” right and certainly not obvious for at least the following reasons, many of which I highlighted in my previous statement on this issue, made on September 8, 2016. 

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