HAVA, Russian hackers and provisional ballots: How an ‘early win’ became a legislative quagmire

The bill known around the Minnesota Capitol as HAVA has become the cynics’ go-to metaphor for the 2019 Minnesota Legislature.

What began the year as an example of the kind bill that the divided House and Senate could agree upon quickly, a so-called early win, is now the symbol of disagreement. More accurately, a symbol of inexplicable disagreement, at least on the surface.

HAVA stands for the Help America Vote Act, a Congressional act first adopted after the Bush-Gore recount debacle of 2000 and renewed after revelations of Russian interference in the 2016 election. The federal law allocated $380 million to the states to beef up their election cyber security.

Most states didn’t need legislative approval to spend the money — but Minnesota isn’t one of those states. Most states that did need approval have gotten it from their respective legislatures — but Minnesota isn’t one of those places either. A few states’ voting systems are known to have been attacked by foreign agents. Minnesota is one of those states.

Now, the lack of progress on HAVA has caused Gov. Tim Walz and House DFL leadership to blame the GOP-controlled state Senate, which has adopted a bill to spend $1.5 million, or less than a quarter of Minnesota’s $6.6 million allocation. The DFL-controlled House, meanwhile, has passed a bill that would allocate the entirety of Minnesota’s pool of money to Secretary of State Steve Simon to implement a plan that was created by a task force on election security. 

How a bill becomes a cause

This is actually the second time the Legislature has tried release the funds. Last year, the first batch of cash was part of a giant omnibus bill that then-Gov. Mark Dayton vetoed for reasons unrelated to HAVA. That’s why it was considered to be something that could get done early and easily in 2019.

Why then, is the Legislature in the final month of its regular session without having passed the authorization? And why did the Senate GOP members of a House-Senate conference committee fail to show up — again — to a meeting to resolve differences between its version of the bill and the House’s?

The answers from the Senate are vague yet vaguely reassuring. Asked again Tuesday as the Legislature reconvened after a week-long Spring break, Senate Majority Leader Paul Gazelka would only say, “HAVA will get done by the end of session.”

The real answer appears to relate to something called provisional balloting, a system by which voters with uncertain credentials or registration can still vote on election day. Those provisional ballots are set aside until questions can be answered. Once that happens — once they are “cured” in election officer parlance — they can be counted.

The original HAVA insisted that all states have such systems. Exceptions were made, however, for states with same-day voter registration, which Minnesota has. With same-day registration, a voter can vote with two pieces of identification at the precinct on election day. They can, in essence, “cure” any questions instantly — and therefore don’t need a provisional ballot.

But as election security has become an issue for Republicans, both in Minnesota and nationwide, some in the GOP have alleged that ineligible voters — felons, undocumented immigrants, whatever — have been voting and changing the outcomes of races. So much so that demanding that Minnesota adopt provisional voting has become something of a rallying cry for the party.

Sen. Mary Kiffmeyer, a Big Lake Republican and former Minnesota secretary of state, supports provisional balloting, but when a fellow Republican offered an amendment on that $1.5 million appropriation to require half of it be spent to create such a system, she opposed it. Why? She said she wanted that starter money to pass “clean,” meaning without additional requirements like provisional balloting, but the explanation also left open the possibility that the spending of the remaining funds could be tied to provisional balloting.

There are other indications that provisional balloting has become a cause for the GOP caucus. The Minnesota Voters Alliance, a conservative group that has twice sued Simon over election-related issues, has made demands that the GOP Senate fight for provisional balloting.

“What you can do: Contact Senate leadership to impress upon them the importance of amending this bill,” the organization wrote in a call to action message sent to its members in January. “Inform them of the reasons provisional ballots are needed and appropriate for inclusion, and demand that they add provisional ballots to the authorizing legislation, or refuse to allocate any of the special funds at all!

“Senate leadership MUST enforce unanimous action by its majority members on election issues. These bills MUST be amended to provide, at least, equal amounts of money for ‘cyber security’ and for implementing a provisional ballot system … If provisional ballots are not added to the bill, then the bill should be rejected in its entirety.”

The Voters Alliance is led by Andrew E. Cilek, who outlined his thoughts on the integrity of Minnesota’s election system in a recent column in “Thinking Minnesota,” the journal of the Center of the American Experiment. “The most serious challenges to the integrity and credibility of election results come not from the Russians. The major threats come from the Minnesotans in charge of administering elections,” he wrote.

Kiffmeyer has also downplayed the threat of hacking, recently telling the Star Tribune: “People are being hacked all the time,” she said. “You’re being hacked all the time. I am. This is no big thing.”

Senate staff said Kiffmeyer wasn’t available to comment further, though she did release a statement on HAVA on Tuesday that said: “The Senate was never included in the scheduling discussions on this conference committee today, and we informed the House and Secretary’s office we could not be there should they decide to host it. They decided to meet anyway.”

“If cybersecurity was so urgent, Secretary Simon would have taken the $1.5 million right away. But that hasn’t stopped him from working on cybersecurity already. And Minnesota’s elections are secure. Because we use paper ballots, the votes cannot be hacked. We always have a hard copy of the election results available for inspection. We will continue to examine the use of the Secretary of State’s office funds to be sure his priority is on election security and integrity.”

‘That is an outrageous statement’

Kiffmeyer’s remarks about hacking being “no big deal,” set off Walz when he was asked about it Tuesday.  

“It is a big deal,” Walz said. “I hear a lot of things around here that I don’t engage with. That one I’m going to engage in. That is an outrageous statement.”

He urged the GOP to show up for the conference committee and used it as a predictor for the final month of the session. “I think it will be telling … if they choose to not show up at this, that could make for a very hard four weeks. It would show you that obstruction is the name of the game and compromise is not in the vocabulary. We’re watching that closely as well.”

Walz also said that he wouldn’t compromise on the issue, and that if the GOP wants to debate provisional balloting it would have to come separately from the HAVA appropriation. “Some type of fantasy that comes up about rampant voter fraud is not going to be a reason to not protect our system,” he said.

“There are very few things that I say I take off the table. I will not put Minnesotan’s health care at risk … and I will negotiate or risk what has now fallen into the theater of the absurd on HAVA and protecting our election system,” Walz said. “Other than that, bring it to me.”

House DFL leadership had a similar position. If the Senate wants to include provisional balloting in a separate elections administration bill, it is welcome to do that. But House Speaker Melissa Hortman said the House will not negotiate the issue in a form that puts the cyber-security money at risk. It also would oppose having it in the bill that funds state government and elections. “No one should hold the state budget hostage for their ideological agendas on elections,” the Brooklyn Park DFLer said.

DFLers are generally opposed to provisional balloting, arguing that same-day registration solves the problem that Congress intended be solved: reducing the chances that eligible voters be excluded. That is why, Simon said, states with same-day registration were exempted from the HAVA demand that provisional voting be adopted in all states. While same-day registration was meant to help more people vote, Simon said that, used improperly, it could be employed as a tool of voter suppression?

More susceptible to attack? 

At that afternoon conference committee that the Senate did not attend, an election security expert now working for the federal Department of Homeland Security told the members who did attend that there are high chances for additional attacks on U.S. elections.

Noah Praetz had been the head of elections for Cook County, Illinois and was there when foreign entities succeeded in penetrating the voter data files of the state. After that, he was part of the bipartisan team that decided how to spend the state’s $14 million HAVA allocation.

“If the Mueller report did nothing else, it indisputably underlined the truth we’ve come to accept,” Praetz said. “There are highly capable adversaries who are interested in disrupting the institution of elections. Considering that, we must redouble our effort to protect the institution.”

He said the strategy for election officials should be “defend, detect, recover.” That is, they should do what they can to put up defenses against hacking and be able to know if those systems have been breached. If so, they need systems to make sure any voting information can be recovered so as to prevent results from being tampered with. Minnesota records all votes on paper ballots so can always recover true results. But any attempt to hack can reduce confidence in a system that depends on it.

“The bottom line is we can’t eliminate every chance of breach,” Praetz said. “But we can make sure that successful attacks are rare. And we can provide assurances that we are prepared to recover quickly when they happen. We will regret it if our democracy is damaged because we looked away at a critical moment.”

Praetz said he was reluctant to weigh in on a political argument over provisional balloting. But he also said that while Illinois had such a system, it was rendered less important once the state adopted same-day voter registration.

He said the number of times a provisional ballot is used to resolve a question of voter eligibility is “tiny.”

When prodded by Rep. Ray Dehn, DFL-Minneapolis, Praetz agreed that if Minnesota is the only state that hasn’t spent its HAVA money, it could draw more attention from hackers. “In some ways these are crimes of opportunity — deploy the least resources possible, scanning various websites and infrastructure and getting into the easiest one to get into,” Praetz said.

When small counties in Illinois asked him why they would be targeted, he said, he told them: “They’re not going after you. They’re going after anybody whose windows are unlocked and yours happen to be.”