The Atlantic

How Ugly Politicking Ate Election Oversight

The federal Election Assistance Commission has neglected key responsibilities or ceded them to other agencies—and two of its four commissioners are spreading the president’s unfounded warnings about voting by mail.

This article is a collaboration between The Atlantic and ProPublica.

Updated at 2:15 p.m. ET on July 22, 2020.

On March 20, state election administrators got on a conference call with the Election Assistance Commission to plead for help. The EAC is the bipartisan federal agency that was established for the precise purpose of maintaining election integrity through emergencies, and this was, by every account, an emergency. In a matter of weeks, the coronavirus had grown from an abstract concern to a global horror, and voting by mail was the only way ballots could safely be cast in states that had not yet held their presidential primaries. But many officials didn’t know the basics: what machines they would need and where to get them; what to tell voters; how to make sure ballots reached voters and were returned to county offices promptly and securely. “I have a primary coming up, and I have no idea what to do,” Nevada Secretary of State Barbara Cegavske said on the call.

She and her colleagues didn’t get the help they were looking for. Of the EAC’s four commissioners, only Ben Hovland, the chair, spoke, and his responses were too vague to satisfy his listeners. The lack of direction was “striking,” says one participant, Jennifer Morrell, an election consultant and a contractor for the Cybersecurity and Infrastructure Security Agency (CISA). “It felt to me that there was no leadership. Nobody was saying, ‘Hey, let’s figure this out.’ Questions just went unanswered.”

The commission punted. On a follow-up call, Hovland volunteered the state of Washington, which votes almost entirely by mail, to respond to questions and provide materials. But Washington built its vote-by-mail system over more than a decade and had accumulated thousands of pages of detailed instructions, too much for other states to implement quickly. Hovland agreed in vague terms to pitch in, but others involved saw little evidence. “We started working with the EAC, and then it just started to get kind of cold,” says Kim Wyman, Washington’s secretary of state. “Nothing happened, nothing good or bad. Just nothing.”

Dogged by partisan infighting, the constant threat of elimination, and a budget that bottomed out last year at less than half what it once was, the EAC has long failed to be effective or even relevant. Current commissioners have dramatically decreased the number of votes taken on important issues. The EAC also hasn’t approved a full set of voting-machine standards since 2005; in 2018, new machines pegged to the old standards malfunctioned in Indiana, and decades-old machines in Georgia failed to record a stunning 150,000 votes for lieutenant governor, spurring ongoing litigation.

In a statement, Hovland noted that despite having “one of the smallest budgets in the federal government, and without a dime of the supplemental funding we requested from Congress” to respond to the pandemic, the commission has succeeded in distributing $825 million in grants to state election officials and in doubling its staff size since the start of the year. “Now is not the time for keeping score,” he said. “It’s time to focus on getting the job done … I am confident that when we look back at this year, and where the EAC was coming from, we will be proud of what we accomplished.”

Now, with the pandemic bearing down for the long haul and state officials begging for help, the commission has neglected key responsibilities or ceded them to other agencies—and two of its commissioners are parroting Donald Trump’s unfounded warnings about voting by mail. After that March 20 call, it wasn’t the EAC but CISA, two associations of state election officials, and a group of election-related private vendors and nonprofits that boiled down Washington State’s information, creating timelines and how-to guides for other states. (The EAC didn’t have the budget or staff to develop the guidance on its own, Hovland told me in an interview. “If my failure here is that I let too many people in the tent … and it got done faster, I’ll take that criticism all day. If the house is on fire and you want to pick up a hose, go for it.”)

After compiling the material, the other groups had more problems with the EAC. When they asked the commission to vet the information and host it on its website, one of the commissioners, Donald Palmer, balked. Voter fraud is vanishingly rare, but Palmer complained that the material contained no information on in-person voting, and argued that voting by mail should not be promoted over other options, according to a document obtained by ProPublica. Regarding one passage, which stated—accurately, experts say—that the return of some ballots as undeliverable before they reach voters is “normal,” Palmer wrote, “We don’t need commentary.” CISA contractors largely disregarded his criticisms, and the EAC website unveiled the guidelines in late April.

The Help America Vote Act was Congress’s attempt to ensure that nothing like the bitterly disputed 2000 presidential election happened again. It required states to maintain central voter rolls, and set standards for voter-list maintenance. It also streamlined voter registration, and allowed for the casting of provisional ballots. And it established the EAC, which is made up of an even number of Republican and Democratic commissioners. They are individually appointed by the minority and majority leaders of both chambers of Congress, and the chairmanship alternates each year between the parties.

The law was passed in 2002 with bipartisan support. President George W. Bush said it would “help state and local officials to conduct elections that have the confidence of all Americans.” In a joint statement, former Presidents Jimmy Carter and Gerald Ford said the bill signified '“the most meaningful improvements in voting safeguards since the civil rights laws of the 1960’s.”

The agency got off to an inauspicious start. While the law required all four commissioners to be in place by late February 2003, they weren’t confirmed until early December. As of early 2004, the agency still had no permanent office or budget. Prodded by Paul DeGregorio, a longtime Republican election official from Missouri and one of the original commissioners, the EAC
disbursed millions of dollars to states, adopted standards for voting technology, and devised data-collection practices that the agency still uses. EAC staffers began helping election officials, especially in small counties with meager budgets, buy voting machines and create statewide voter lists.

But the agency was embarrassed by various scandals. In 2008, when the EAC spent almost $7,000 on polo shirts for the staff to wear when they visited election offices, it accidentally overbought, leaving 263 leftover shirts. This tiny fraction of federal spending triggered an investigation by the General Services Administration’s Office of Inspector General. (The inspector general concluded that there had been no mismanagement of funds, and many of the extra shirts have found their way into the hands of current employees, who occasionally wear them as a joke.) In 2009, the agency faced multiple accusations of political hirings and firings, and whistleblowers reported a hostile work environment. An investigation found no evidence for the allegations, but it criticized poor management and rampant dissatisfaction among staff, something the agency struggles with to this day.

That’s when Gregg Harper, a newly elected representative from Mississippi, determined that one of his top priorities would be abolishing the EAC. Harper’s view—not explicitly supported by the statute’s language—was that the Help America Vote Act intended for the EAC to exist only long enough to distribute the original funds and implement voting-machine requirements. It has done both, he told me in an interview, but “somehow [it’s] just hung around.”

Over the course of a decade in Congress, Harper wrote four bills to eliminate the EAC. None became law, but Harper was successful in reducing the EAC’s operating budget from about $11.5 million in 2006 to a low of $8 million in 2019. That’s less than the budget of, for example, the Department of Justice unit that investigates crimes involving bitcoin and other cryptocurrencies.

The agency became so neglected that departing commissioners weren’t replaced. From 2010 to 2014, it lacked the minimum three commissioners needed for any decision, and for some of that time, it didn’t even have one commissioner. Even the people it purported to serve, the secretaries of state, repeatedly voted in favor of disbanding the agency, most recently in 2015. The votes had no practical impact but sent a signal to Congress that the commission was held in low esteem.

Morale plummeted. Talented employees moved to other government agencies, taking with them institutional knowledge and election experience, resulting in more embarrassments, which resulted in more budget cuts. “I honestly don’t know how a government agency survives like this,” Hovland told me. “They expect so much—for us to help 50 different states and to perform large roles that take time and expertise. That costs money. It takes attention. It takes staff.”

Today, the EAC’s headquarters, in Silver Spring, Maryland, looks more like a low-budget call center than a government office. The carpet is curling up off the floor and the paint is peeling. “The place is embarrassing,” one recently departed employee told me. “How do you invite congressmen who are trying to eliminate you to an office like that to show them what you do?”

Underlying the budget cuts and the attacks on the commission lies a deeper problem: a growing dispute over the basic machinery of democracy. Voting methods once thought routine, such as absentee ballots, have become grist for partisan bickering. The escalating fight over voter fraud has crippled the EAC, often sabotaging its most dedicated commissioners while emboldening those who are less effective.

A U.S. Senate race in 2000 helped spawn the voter-fraud hysteria—and launch the careers of key figures on both sides of the debate. Missouri Governor Mel Carnahan was running a close race against the incumbent Republican John Ashcroft. Three weeks before the election, Carnahan’s plane crashed into a hilltop near St. Louis. Everyone aboard was killed, including Carnahan; his son, Randy, who piloted the private plane; and Carnahan’s former chief of staff.

The repercussions were unprecedented. It was too late to remove Carnahan’s name from the ballot, so his widow, Jean, became the unofficial candidate. The acting governor announced that he would nominate her for the seat if her late husband won the election. The campaign mailed out thousands of I’m Still With Mel! buttons, volunteers turned up by the hundreds, and a swell of empathy for the plucky widow swept through Missouri. Mel Carnahan became the first senator to win posthumously, and Jean Carnahan became Missouri’s first female senator.

At the time, Ben Hovland was a young staffer on the Carnahan campaign. Devastated by the candidate’s death, he worked 20-hour days, “waking up with calf cramps in the middle of the night, just in agony,” he recalled in the first of three two-hour phone interviews with me. The victory exhilarated him. “In a career where you see a lot of Astroturfing and the sort of things that can make you cynical about politics, this was really a rare, genuine moment of all these people who were coming out because they wanted to do something, wanted to be a part of something, wanted to say thank you because Governor Carnahan had made a difference in their lives,” he said.

Ashcroft, though, was humiliated, and convinced that only cheating could explain his loss. Once Bush appointed him U.S. attorney general, he initiated years of intense investigations into voter fraud. These probes found next to nothing, but three lawyers who worked on them at the Justice Department would become leading voter-fraud conspiracy theorists: Hans von Spakovsky, J. Christian Adams, and Kris Kobach. Von Spakovsky uses his perch as manager of the election-law-reform initiative at the Heritage Foundation to prod Republican legislators and secretaries of state to supply examples of voter fraud to a database. Adams runs the Public Interest Legal Foundation, which sues jurisdictions over largely exaggerated claims of bloated voter rolls, which he claims lead to fraudulent voting. As Kansas’s secretary of state from 2011 to 2019, Kobach restricted voting rights, and headed Trump’s now-defunct voter-fraud commission. He’s now running for the U.S. Senate.

Even as Ashcroft ramped up his investigations, he largely protected the EAC, whose chair, DeGregorio, was a fellow Missouri Republican. But after Ashcroft left his post in 2005, von Spakovsky began badgering DeGregorio.

“He put some heat on me to be more partisan, indicating I was just too bipartisan,” DeGregorio told me. “I started getting pressure from people to issue an opinion a certain way or take a more partisan stand, or to not go along with the Democrats so much in the commission, because we had too many unanimous votes.”

In 2007, the EAC hired two respected researchers to study voter fraud. But after they found little evidence of a problem, the commission decided not to adopt their report, saying the extent of voter fraud was open to interpretation. Von Spakovsky had emailed the EAC multiple times to complain about the project and the researchers. Von Spakovsky, who didn’t respond to questions for this article, told the media and congressional investigators at the time that his communications with the agency were appropriate and that it wasn’t unusual for the Justice Department to work with the EAC.

DeGregorio was informed in 2007 that he would not be reappointed to the commission. Roy Blunt, the senator from Missouri who had originally recommended him for the role, told DeGregorio that “there were individuals who did not want my reappointment, because they felt I wasn’t Republican enough and that I was too bipartisan,” DeGregorio recalled. He was replaced by Caroline Hunter, a Republican operative with no experience in administering elections.

By 2014, the voter-fraud movement was starting to penetrate the commission’s inner ranks. Christy McCormick, who had worked on voting issues at the DOJ that originated under Ashcroft, was appointed as a commissioner, was appointed as a commissioner.* The commissioners chose Bryan Newby, a Kansas election administrator, as the agency’s new executive director. After he was appointed to the EAC, an audit found that he had misspent county funds in his prior job. But Kobach, who was at the time Kansas’s secretary of state, took no action.

One of Newby’s first moves as EAC director was to approve Kobach’s plan to require Kansans to present documentary proof of citizenship when registering to vote. A federal judge struck down the plan in 2018, finding that it disenfranchised 30,000 voters and was illegal under the Help America Vote Act. A separate challenge in federal court to Newby’s ruling is pending.

In the waning days of the Obama administration, Department of Homeland Security Director Jeh Johnson declared elections “critical infrastructure.” The designation gave DHS a formal role in protecting elections from outside intervention, foreign or otherwise. But Johnson’s staff didn’t know where to turn for detailed information about the election process. They considered the Federal Election Commission, but it focuses on campaign finance. Finally, somebody mentioned the EAC.

DHS reached out, giving the EAC an opportunity to weigh in on national policy and foster a uniform approach among states and counties for handling elections. But Neil Jenkins, the DHS official in charge of leading the discussions, told me that he found the EAC’s leaders unreliable and combative.

His relationship with McCormick was especially unproductive. After Trump was elected, she rarely attended meetings and briefings where DHS sought to alert the commissioners to the growing threat of Russian interference, Jenkins said.

In January 2017, McCormick wrote a post for the EAC’s website describing the idea that Russia had interfered in the 2016 election as “deceptive propaganda perpetrated on the American public” by the Obama administration. State election administrators say that she often talked to them about the “hoax.” She told at least two that she “knew the Russian people,” having once lived there, and that they wouldn’t be capable of such villainy.

Later in 2017, Trump appointed her to his voter-fraud commission, which also included Kobach, von Spakovsky and Adams. In its first meeting, she claimed to have personally observed voter fraud, without giving details. Emails released by the commission in connection with a lawsuit show that she worked closely with von Spakovsky and Adams to figure out how to collect state data on fraud. She suggested a Justice Department statistician as a staffer for the voter-fraud commission, calling him “conservative (and Christian too).”

In 2018, Speaker of the House Paul Ryan announced that he would not reappoint Matt Masterson, the EAC’s other Republican commissioner, who had earned high praise from state officials for leading cybersecurity training programs and improving the EAC-DHS relationship. “Republican congressional leadership and the Trump administration simply aren’t interested in ensuring that our elections are protected from Russian interference,” Connecticut Secretary of State Denise Merrill, a Democrat, said in a statement released after Masterson’s dismissal.

A person close to Ryan told me that McCormick and von Spakovsky worked to push the speaker to drop Masterson. McCormick had sparred with Masterson on many occasions, according to EAC employees, and told like-minded secretaries of state that he was insufficiently partisan. Ryan replaced him with Donald Palmer, who had been—at the urging of McCormick, former EAC staffers said—hired as a contractor for the EAC months before. Masterson is now a cybersecurity adviser to CISA, and worked on the vote-by-mail security policies now available on the EAC’s website.

Last year, writing in a Washington Times piece while serving as EAC chair, McCormick acknowledged that she had been wrong about Russian interference: Russia had in fact posed a “real and persistent” threat to elections. “The vacillating facts that shaped the earliest assessments of what happened and to whom, as well as my lack of access to classified intelligence briefings that others would have had me swear to in good faith, gave me pause,” she wrote.

The aspersions that Ashcroft cast on Mel Carnahan’s victory, and the rising fervor over voter fraud, steeled Hovland’s determination to advocate for voting rights. In early 2008, he became an elections attorney for the Missouri secretary of state: Robin Carnahan, Mel and Jean’s daughter.

Next he worked for the Fair Elections Legal Network, litigating ballot-access issues, and for the Senate Rules Committee, which oversees the EAC. In 2018, the Democratic Party put him in charge of the search for a new EAC commissioner. Those familiar with his search—and the people he approached about the position—say that no one wanted the job.

“I was asked if I wanted it and I couldn’t say no fast enough,” one potential candidate told me. “You just can’t get anything done there.”

Hovland, though, always felt the agency could play an important role. He likes to quote the defense of the agency by Heather Gerken, the dean of Yale Law School: “What’s the point of having 50 laboratories of democracy if no one is keeping score?” When he couldn’t find anyone to fill the vacancy, he volunteered, and was appointed in January 2019.

Palmer, a former election director for Virginia and Florida, was appointed at the same time. He had  testified at the  second and final meeting of Trump’s voter fraud commission. He frequently retweets popular conservative talking points, denouncing “antifa” and Black Lives Matter.

Palmer’s backyard has an inground pool. On March 18, as election officials across the country grappled with the pandemic’s implications for upcoming primaries, Palmer tweeted a mid-day poolside selfie. Election directors were outraged. “I’m trying to figure out how to completely rehaul my election, and this asshole is tweeting pictures of himself sunbathing,” one texted me.

On Twitter, Palmer defended taking a break from his duties. “All EAC employees are teleworking,” he said. “And we do have lunch!” He reported that he’d been on a call that day to discuss the impact of COVID-19 on elections. Three people who participated in the call couldn’t recall him saying anything.

Although McCormick has disavowed her contention that Russian interference in the 2016 election was a hoax, she and Palmer promulgate another of President Trump’s discredited conspiracy theories: that mail-in voting is rife with fraud. In May, they promoted it on Red, White & True, a podcast hosted by Catherine Engelbrecht, who runs True the Vote, a Houston-based group that has unsuccessfully sued several states to block expanded voting by mail.

On the show, Engelbrecht warned of massive ballot “harvesting”—political operatives collecting and submitting mail-in ballots—and said that “millions” of people should be removed from the rolls. “So all of those folks are going to get ballots—a disaster waiting to happen,” she said, straight to camera, flipping her notes for emphasis.

Then Palmer and McCormick—neither of whom responded to questions for this article—called into the program. They could have referred listeners to the commission’s website to learn how to vote by mail safely and securely, but they didn’t. Instead, McCormick echoed the host’s alarmist rhetoric, saying that voters would be mailed ballots regardless of “whether we know if they've died or not,” and that the “security involved is a lot less with a vote-by-mail scheme than it is with an absentee-ballot scheme.”

No Republican, Democratic, or nonpartisan election administrator I spoke with in more than 10 states where voting by mail is well established agreed with these statements. “It’s bollocks. Not a single system works like that,” one said, adding that the podcast made him reluctant to cooperate with the EAC. “What elections official wants to work with an agency actively undermining their work?”

Engelbrecht lapped up McCormick’s criticism of voting by mail, saying the “idiocy” was “shocking.” She predicted that widespread fraud would throw presidential-election results into question, and that the Supreme Court would have to decide the winner.

Wrapping up the segment, Engelbrecht told viewers that Palmer and McCormick were “awesome. People forget that the EAC is even there.”

The EAC’s most vital function—and perhaps its most glaring failure—is the standardization and certification of voting machines. It has not adopted a full set of requirements since 2005. As a result, manufacturers have had little incentive to upgrade machine security, except in a few states that became so impatient, they introduced their own standards.

The commission’s first effort to revise the 2005 guidelines ground to a halt in 2010 because it didn’t have enough commissioners to pass new standards. Without a quorum until 2014, staffers plunged ahead by working with elected officials across the country and other federal agencies. Soon after Masterson, McCormick, and Thomas Hicks, a Democrat and former congressional staffer, were sworn in at the start of 2015, they approved a partial update, seemingly paving the way for a full overhaul of the standards. Instead, the process was bogged down, especially after Masterson, who was knowledgeable on the subject because he had worked for the EAC’s testing and certifications section, which reviews voting machines, wasn’t reappointed.

When Hovland and Palmer joined the commission in 2019, “honestly the standards just weren’t ready,” Hovland said. “They were supposed to be completely ready to go, but they just weren’t.”

In the meantime, the 2015 updates were having almost no impact, because they grandfathered in existing machines under the old standards. Manufacturers seized on that loophole, and only one system has applied for certification.

In February, at a gathering of state election directors in Washington, D.C., the four EAC commissioners held a panel to discuss the standards. Led largely by New Jersey’s election director, Bob Giles, state officials grilled the commissioners on their lack of progress. Asked by Giles about one proposed section, Hovland said that one reason it had not been voted on was because it still contained grammatical errors.

“So it’s about five pages. So if each of you reviewed one page a day, I think you could get it done,” Giles snapped, as the audience in the room laughed.

“I could do that, Bob, but we are traveling around the country, trying to keep an agency alive,” Hovland said.

The exchange galvanized the commissioners. At the end of February, they voted to send out the standards for public comment. They are now reviewing 77 comments and discussing them with state and local election officials and other interested parties. Final approval isn’t expected before the November election.

During a virtual public hearing in May, Hicks appeared to admit that he had not read the full 300-page standards.

“I think right now we have an opportunity with this pandemic to be sitting at home, and I'm going through the old adage of, ‘How do you eat an elephant? Basically one bite at a time,’” Hicks said.

Hicks told me that he had read the standards, which he called “a critical agency priority,” and that he has been going over them a second time to improve his understanding. His comment during the hearing was “misunderstood and taken out of context,” he said.

There are signs that the EAC may finally be ready to fill the role for which it was created. Its budget rose to $11 million this year. Starting last year, for the first time since 2009, it has had a full complement of four commissioners. In recent months, it has recruited several seasoned staffers, even rehiring some who had left the agency in frustration.

After the Office of Personnel Management questioned Bryan Newby’s leadership and described low staff morale within the EAC, Newby wasn’t reappointed in 2019, and he became North Dakota’s election director. He has filed a complaint with the federal Office of Special Counsel against the EAC’s two Democratic commissioners, Hovland and Hicks, saying they opposed his reappointment for political reasons. This month, the commissioners named Acting Executive Director Mona Harrington, the EAC’s former chief information and security officer, as his permanent replacement.

State officials acknowledge that they have no choice but to support the EAC. After the 2016 election, they realized that their fledgling state security offices were no match for a hostile nation-state. “Honestly, I just don’t know who can certify machines if not the EAC,” one Republican state election official told me. “I used to believe that there was no place in the federal government for the agency, but we need these standards. We have to have the EAC.”

Another told me, “I don’t think many of us feel like the agency should go away. We all want them to stay, and things look more promising now than they have since the agency was founded. I hope it stays that way.”

Underscoring the state officials’ change in attitude, the elections committee of the National Association of Secretaries of State voted Tuesday to encourage Congress to keep funding the EAC. Wyman, Washington’s secretary of state, said she regrets her vote in 2015 to abolish the commission. The states “have a different relationship with the EAC now,” she said.

As we concluded our conversation, Hovland recalled an unflattering article in The Hill about the EAC on its tenth anniversary. “Sometimes people ask me what I think the 20-year-in article is going to say,” he said. “I want it to be one of a turnaround. I think we’re getting there.”

* This article originally stated that Christy McCormick worked at the Department of Justice under former Attorney General John Ashcroft. While she worked on cases that originated during his tenure, she began after he left.