Vestigial structures are an inherent function of biology, be they penguin wings, bat bones, whale pelvises, or human wisdom teeth; they are organs that stay anchored in bodies even after time has rendered their functions ineffectual. Just as the evolution of life results in useless appendages, so too do the evolutions of bureaucracies. The question then becomes, when does this transition happen, and how is it possible to tell? Without the presence of empirical scientific evidence that assists biologists, deciding the answers as they relate to government agencies falls to politically charged debates with debilitating consequences. This much is abundantly clear in the case of the Election Assistance Commission (EAC).
Created in 2002 as a part of the Help America Vote Act (HAVA), the bipartisan commission is charged with developing national voting system guidelines, advising state and local election officials, distributing HAVA funds, and testing and certifying voting machines. Having emerged from the chaos and uncertainty of the 2000 elections, HAVA, and by extension, the EAC, passed “with nearly unanimous bipartisan support.” Its duties fall somewhere between the Federal Election Commission (FEC) and the Department of Homeland Security (DHS), yet it does not possess the strong regulatory power of either. Rather, the commission functions as an intermediary between federal and state governments. However, sixteen years after its formation, that consensus is no longer the case.
While Democrats generally support the commision, it faces strong opposition by Republicans. This divide deepened after the 2016 elections. The EAC, GOP members argue, is a vestigial structure, a drain on tax dollars, and essentially unnecessary given its role could easily be absorbed into other institutions. As the Atlantic’s Russell Berman stated: “Every odd-numbered year since 2011, Republicans in the House have tried to kill the Election Assistance Commission.” Democrats, on the other hand, are fighting for the EAC, arguing that its task is, in fact, unique, and that in the aftermath of the 2016 election interference, this commission is even more vital. In diving deeper into the commission’s history, it becomes clear that both sides are correct.
Around the time of the elections, the EAC suffered a cyber attack, exposing large swaths of election security data to potentially unfriendly global buyers and possibly even infecting local voting machines. The breach and pervasive notions that the EAC represents the problems with federal regulation, and what is considered a state matter may very well have been its death knell. Moreover, conflict within the commission over voter suppression has led to a lawsuit by some of the EAC’s strongest supporters. To many, this clearly demonstrates exactly how the commission creates more insecurities than it solves, much like, for instance, the appendix.
That leap is not outrageous; in fact, it is quite logical. All of the information that was stolen in the hack could have been found in the databases of other government agencies. Only because the EAC gathered it together in one insecure place was such a breadth of data able to be compromised. Its federal origin also constantly clashes with advocates of federalism in problematically contradictory ways; for instance, the EAC has been on both sides of a lawsuit over voter ID laws. Without the permission of its commissioners, executive director Brian Newby reversed decades-long policy protecting voter rights, triggering attacks from groups like the League of Women Voters and the Brennan Center. Just a few years before, the commission had been sued by Kris Kobach because of its aggressive protections. With these examples, it is not hard to imagine a more functional system existing without the complications that have arisen over the years.
At the same time, those weaknesses were not always inherent outcomes. During the Obama administration, the Republican Congress actively failed to appoint new commissioners, and without the minimum of three, the agency could not function in the way HAVA intended. While obstructionism was characteristic of Congress during the Obama administration, importantly, the aforementioned Kobach lawsuit alleged that the understaffing of the EAC was a constitutional infringement on states’ rights. In this case, Republicans created the problems that other Republicans cited as a fundamental function of the commission. Nonetheless, in those crucial pre-election years, the EAC was not functioning at its highest capacity in terms of funding new machines, checking security, and working with state governments. Now, on the eve of the midterms, and with the mistrust of voting systems, it would be an awful time to disband the EAC, which would be “a green light to Putin to do it again,” according to Democratic Representative Quigley.
Still, the question of necessity remains. The security risks associated with a bureaucratic institution handling state-specific data are clear. So too are the urgent election security ever present and ever pressing. Lost in this political tug of war has been a crucial component: relationships. The Election Assistance Commision has built, over the last 16 years, relationships with state and local election officials without which the system would not work. That emotional work is not delegable to the FEC, an organization that focuses more on campaign finance, nor to the DHS, which is aggressively centralized and has no connections to states. The EAC fills that gap where the individual vote lies, and in the current climate, relationships are, in fact, the evolutionary trick that is needed most of all.