FIVE

NEAR CRISIS, NEXT CRISIS: THE ELECTION OF 2016 AND BEYOND

While we may never learn the full extent of the covert attempts to infiltrate and manipulate the 2016 U.S. presidential election, what we do know should alarm if not terrify us. A National Security Agency report published seven months after the election concluded that “Russian intelligence obtained and maintained access to elements of multiple U.S. state or local electoral boards.”¹²³ Two years later, Special Counsel Robert Mueller’s long-awaited report confirmed that Russians undertook this and other actions in order to help Donald Trump win the White House. Among other things, the Russians manipulated social media to spread disinformation and disseminated private emails hacked from Clinton campaign chairman, John Podesta, and other leading Democrats.

Revelations subsequent to the Mueller report are even more disturbing. The Senate Intelligence Committee issued a bipartisan report concluding that, during the 2016 election, Russia breached election systems in all fifty states, an attack “more far-reaching than previously acknowledged and one largely undetected by the states and federal officials at the time.”¹²⁴ The Senate report was released less than twenty-four hours after Mueller warned that Russia is moving forward with plans to interfere in future elections.

While the Senate investigation found that the Russian government “directed extensive activity . . . against U.S. election infrastructure at the state and local level,”¹²⁵ there have been no disclosures of attempts to interfere with the actual casting or tabulating of votes. However, we cannot rule out that possibility. Indeed, the heavily redacted Senate report implied that the Russians, among others, may be currently seeking means of altering votes in future elections, and that outdated voting machines in many states remain particularly susceptible to such efforts. The report quotes Dr. Alex Halderman, a professor of computer science at the University of Michigan, as saying that “our highly computerized election infrastructure is vulnerable to sabotage and even cyberattacks that could change votes.”¹²⁶ Some experts speculate that hackers—including foreign governments—already have the ability to alter votes in our voting machines.

The Cybersecurity Infrastructure Security Agency, a division of the Homeland Security Department, is also concerned that election systems could become paralyzed by ransomware, a type of cyberattack that has already sabotaged municipal computer networks in Baltimore, Atlanta and other cities.¹²⁷ “This threat to our democracy will not go away, and concern about ransomware attacks on voter registration databases is one clear example,” said Vermont Secretary of State Jim Condos.¹²⁸ “A pre-election undetected attack could tamper with voter lists, creating huge confusion and delays, disenfranchisement, and at large enough scale could compromise the validity of the election,” according to John Sebes, a chief officer at the OSET (Open Source Election Technology) Institute, an election technology policy think tank.¹²⁹

In addition to sabotage and extortion, we must beware of efforts by foreign and domestic entities to spread disinformation or weaponize hacked data. Such activities are particularly dangerous because they may provide leverage against the president they help elect. But, unless the president or members of his or her campaign participate in such activities, or at least know about them and fail to alert the authorities, they do not call into question the legitimacy of an election. Vote tampering obviously crosses that line. If a president engages in or knows of such activities and doesn’t report them, he or she should be impeached and removed. Whether or not the candidate knows about it in advance, if enough votes are tampered with to affect the outcome of the election, the election is a sham and the “winner’s” claim to office lacks legitimacy.

In 2016, even minimal vote tampering could have changed the outcome of the election. To be sure, although Trump received millions fewer votes than Hillary Clinton, his victory in the Electoral College was reasonably comfortable: He received seventy-seven more electoral votes than Clinton, a margin exceeding that of twelve presidential winners. But Trump’s seventy-seven vote Electoral College victory is less impressive than it might seem. This misleadingly large margin stems from a combination of two factors: the winner-take-all nature of the Electoral College and the fact that Trump won several sizable states by a tiny amount. His margin over Clinton in Michigan, Pennsylvania, and Wisconsin was less than 1 percent, and in Florida just 1.2 percent. Had Clinton won those four states, she would have received 302 electoral votes to Trump’s 229—almost a perfect reversal of Trump’s victory (304–227). Clinton also won a few states by tiny margins, but they happened to be small states with far fewer electoral votes.

As we shall see in the next chapter, 2016 was not an outlier: The Electoral College often produces results where a small swing of votes in a few states would have yielded a different winner. This point is particularly salient with respect to 2016, however, because a foreign power covertly engaged in substantial activity to manipulate the outcome.

Though no evidence suggests that attacks by Russians or other malicious actors affected the actual casting or tabulation of votes, it is important to recognize that even a little bit of such chicanery can easily affect the result of an election. We will never know whether the Russians’ weaponization of social media and other covert operations got Trump over the top, but perhaps next time the Russians will not rely on indirect efforts: Next time they—or someone else—may engage in vote tampering. No one puts it past them to try, and there is no reason to assume they could not succeed.

In September 2018, an annual hacker conference simulated an election utilizing actual election equipment and created a “Voting Machine Hacking Village” that successfully breached every piece of voting machinery.¹³⁰ The people who organized the conference drafted a lengthy report that issued the following conclusions:

• A voting tabulator currently used in 23 states is vulnerable to remote hacking via a network attack. Because the device in question is a high-speed unit designed to process a high volume of ballots for an entire county, hacking just one of these machines could enable an attacker to flip the Electoral College and determine the outcome of a presidential election .

• A second critical vulnerability in the same machine was disclosed to the vendor a decade ago , yet that machine, which was used into 2016, still contains the flaw.

• Another machine used in 18 states was hacked in only two minutes, while it takes the average voter six minutes to vote. Thus one could hack a voting machine on Election Day within the time it takes to vote.

• Hackers had the ability to wirelessly reprogram, via mobile phone, a type of electronic card used by millions of Americans to activate the voting terminal to cast their ballots . This vulnerability could be exploited to take over the voting machine and cast as many votes as the voter wanted. ¹³¹

The report’s conclusions dovetail with what experts have been telling us. In the book Hacking Elections Is Easy, the authors, experts on cyber-security, explain that, well, hacking elections is easy: “The Question is not, ‘Are script kiddies, lone-wolves, hacktivists, cyber-mercenaries, or nation-state actors from Russia or China trying to impact our elections? Rather, due to our virtually defenseless election process, the questions that should be asked are, ‘Why wouldn’t they?’ and ‘How do we know that they have not already done so?’”¹³²

Lest this be seen as alarmist, note that the National Academy of Sciences, Engineering, and Medicine concurs that our elections are extremely vulnerable. They observe that malware (malicious software that creates viruses and the like) “can be introduced at any point in the electronic path of a vote—from the software behind the vote-casting interface to the software tabulating votes—to prevent a voter’s vote from being recorded as intended.”¹³³

The threat of a presidential election undermined by foreign interference has grown to the point that the FBI has publicly warned about it and actively works to safeguard against it.¹³⁴ (Alas, the same cannot be said for the Senate, which has refused to vote on critical election security bills.)¹³⁵ Meanwhile, the New York Times reports that “intelligence officials believe Russia intends to raise questions in the aftermath of future elections about irregularities or purported fraud to undermine faith in the result.”¹³⁶ But would Russia settle for raising questions about irregularities or fraud if they can do the real thing, taking action that actually doctors results? As noted, we cannot rule out the possibility that this occurred in 2016. The FBI determined that a Russian military intelligence unit hacked into voter registration systems in Florida, which could have enabled them to delete or add voters to the rolls and cancel mail-in ballots.¹³⁷ Needless to say, such activities can affect the actual vote count. Department of Homeland Security officials have declared themselves “confident” that the activities in Florida had no impact on vote totals, but confidence is not certainty.¹³⁸

Because there is no evidence that any hackers actually affected the tabulation of votes, we may be lulled into a false sense of security. That is, we may not be asking, at least with sufficient urgency, what would happen if Russia or some other force directly compromises our election.

Consider a thought experiment involving an alternate history of the 2016 election. Suppose the Mueller report found that the Russians had successfully hacked the vote-counting machinery in Michigan and Pennsylvania, switching enough votes to change the outcome of the election. (Note that Trump won Michigan and Pennsylvania by just 55,000 votes combined.) Were it not for the Russian operations, according to our hypothetical investigation, Clinton would have won these states and therefore the presidency. Had this happened, a few days later we might have awakened to something like the following news report.

Revelations that Russia essentially hijacked our election naturally outraged Democrats. Many, including Speaker of the House Nancy Pelosi, are calling for President Trump’s impeachment. Most legal scholars, however, believe that impeachment is inappropriate unless it can be demonstrated that Trump, or at least members of his campaign, knew about the Russian effort.

Other Democrats are demanding that Trump and Vice President Mike Pence resign, to be replaced by Clinton and her running mate, Senator Tim Kaine. But this approach, too, appears to lack a legal basis. The Constitution provides that Congress shall determine the line of succession governing vacancies in the offices of both president and vice president. Congress long ago established that next in line is the Speaker of the House—in this case, Ms. Pelosi.

Harvard Law School professor Laurence Tribe, a constitutional law expert, notes that “the whole line of succession is laid out in federal law. In the event of double vacancy the Speaker of the House becomes president, followed by the president pro tempore of the Senate. After that, it’s the secretary of state and cabinet members all the way down.”

Tribe is counseling Democrats that there is nevertheless a path to a Clinton-Kaine administration. “As soon as Pelosi takes office, she should nominate Clinton as vice president. After the Senate confirms Clinton, Pelosi resigns and Clinton becomes president. Clinton then nominates Kaine to the vice presidency to fill that vacancy.”

The major obstacle to Professor Tribe’s scenario is Republican control of the Senate. Senate Majority Leader Mitch McConnell says he foresees no circumstances in which members of his caucus would vote to confirm Ms. Clinton as vice president. And all such speculation may be moot given that Trump apparently has no intention of resigning. White House communications director Sarah Sanders put out a statement that leaves little room for interpretation.

“It will be a cold day in hell before President Trump and Vice President Pence resign the office so that Nancy Pelosi or anyone else can become president.”

A bipartisan group of Democratic and Republican lawmakers has huddled to consider legislation calling for a special election, presumably pitting Clinton and Trump in a rematch. However, this idea is already under attack from both sides of the aisle.

“This is not a tennis match, best two out of three sets,” Senate Minority leader Chuck Schumer said. “Hillary won the election, and we must find a way to make her president.”

“If Democrats don’t like the results of this election, there’s another one in less than two years,” McConnell said.

What about the fact that, according to the Mueller report, the election had been stolen by a foreign country?

“That’s just speculation,” McConnell said. “And it wouldn’t matter if it was stone cold fact. There’s nothing in the Constitution authorizing a special election. If you don’t like it, move to Europe. You’ll get all the special elections you want over there.”

McConnell was asked whether he would say the same thing if a Democrat had won the White House thanks to a foreign nation switching votes away from the Republican candidate.

“What I would say makes no difference,” McConnell said. “What matters is what the Constitution says. If people don’t like the Constitution, they can amend it.”

This alternative history is not far-fetched. Had the Russians—or anyone else—made Trump president by tampering with votes, and had the discovery of the chicanery been made only after Trump’s inauguration, something like the scenario sketched above likely would have transpired. Moreover, the sentiment attributed to Mitch McConnell is correct: The Constitution does not provide means for undoing an improper presidential election.

Spanish philosopher José Ortega y Gasset has observed, “The health of any democracy, no matter what its type or status, depends on a small technical detail: the conduct of elections.”¹³⁹ And U.S. law professor Robert Bennett notes, “Selection of the president is the single most important and gripping event in American democracy. . . . There is no more serious concern we should have about American democracy than that the process of selection may work very badly.”¹⁴⁰

The 2016 election reminds us that, notwithstanding the ample warnings provided by the elections of 1800, 1824, 1876, and 2000, we have done little to fix the problems plaguing presidential elections. As noted, it is a certainty that Russian covert operations attacked the 2016 election, and in July 2019, Robert Mueller testified that Russia continues efforts to sabotage our system.¹⁴¹ In October 2019, the Associated Press reported that “hackers linked to the Iranian government targeted a U.S. presidential campaign, as well as government officials, media targets and prominent expatriate Iranians.”¹⁴² It is a near certainty that numerous entities will intensify efforts to infiltrate voting systems and determine future election outcomes. Accordingly, several questions demand immediate answers. What can we do to reduce the likelihood of the scenario in which the wrong candidate (meaning one who receives fewer legitimate electoral votes than their opponent) is deemed the winner? If this dangerous scenario does in fact come to pass, do we have a means of redressing it? If not, what can we do to establish such means? The next two chapters take up these questions.