DOJ fires warning shot against ‘unusual’ post-election ballot reviews

The Justice Department on Wednesday issued another warning aimed at states conducting or considering audits of ballots tallied in last year’s election, reminding election authorities that allowing ballots to be mishandled can violate federal law.

While the Biden administration “guidance” document carries no formal legal weight and may not strike fear into local officials, the Justice Department used the release of the legal analysis to press their campaign of saber-rattling against Republican-led audits of the 2020 vote in Arizona and other states, as well as voting changes many GOP-controlled states are pursuing as part of purported anti-fraud efforts.

“Jurisdictions have to be careful not to let those ballots be defaced or mutilated or lost or destroyed as part of an audit,” said a Justice Department official who briefed reporters on condition of anonymity. “This document puts down a marker that says the Justice Department is concerned about this.”

The new, seven-page Justice Department issuance doesn’t break new ground, but it does send the message that federal officials are closely scrutinizing the audit efforts.

“Election audits are exceedingly rare. But the Department is concerned that some jurisdictions conducting them may be using, or proposing to use, procedures that risk violating the Civil Rights Act,” the memo says.

“We are keeping a close eye on what's going on around the country,” the official said, alternately referring to the reviews as “audits” or “so-called audits.”

The guidance comes as the most prominent post-election audit, in Arizona, stretches on for months, well past the initial timetable set up for the review. The effort there has been besieged by conspiracy theories and inexperience, election experts say.

The Justice Department already sent the Arizona state Senate a letter in May raising concerns that the procedures for auditing Maricopa County ballots were not adequate to make sure they were preserved under federal law. However, federal officials would not say whether they are planning to take legal action against that state or any other jurisdiction. A requirement in the Civil Rights Act of 1960 calls on election authorities to preserve ballots from federal elections for 22 months.

“We can’t comment on any investigations that might be going on,” the DOJ official said.

And as former President Donald Trump couples his calls for audits with pressure on states to severely curtail mail-in voting, the Justice Department warned Wednesday that state officials should not assume that it is automatically legal to return to their pre-pandemic policies.

“We didn’t want to sort of give jurisdictions or think jurisdictions should have a safe harbor to say, ‘Because we ran our voting system this way before the pandemic, we’re free to go back to that,’ even if going back to that has a racially discriminatory impact or even if going back to that is, in part, motivated by racial reasons,” the DOJ official said.

“What we’re just saying to jurisdictions is ... you should not assume if you abandon the practices that have made it easier for people to vote, that abandonment is not going to get scrutiny from the Department of Justice,” the official added.

Last month, the Justice Department filed suit against the state of Georgia over its recently enacted changes to election practices, including curtailing the use of dropboxes compared to their deployment in the 2020 election and adding restrictions on sending absentee ballot request forms.

Georgia officials said the suit was without merit, noting that a number of northeastern states have more restrictive practices for early or absentee voting.

However, the Justice Department suit argued that the changes the Georgia Legislature made were intended to discriminate against African American voters. If that can be proven in court, then the comparisons to other states may have little impact.

Georgia is also facing a series of lawsuits from civil rights groups, which are arguing both that the new state election law was racially targeted and that it is unlawful because it will have a disparate impact on Black voters.

The new guidance on audits stops short of asserting that it is illegal for a state or locality to use a contractor for ballot reviews. But the Justice Department warns that doing so seems to increase the chances that the integrity of the ballots may be violated.

“Where election records leave the control of elections officials, the systems for maintaining the security, integrity and chain of custody of those records can easily be broken,” the DOJ pronouncement says. “Moreover, where elections records are no longer under the control of elections officials, this can lead to a significant risk of the records being lost, stolen, altered, compromised, or destroyed. This risk is exacerbated if the election records are given to private actors who have neither experience nor expertise in handling such records and who are unfamiliar with the obligations imposed by federal law.”

The review of the ballots in Arizona are from votes cast in Maricopa County, the state’s most populous county, which Biden narrowly carried. The effort is called an “audit” by supporters but is nearly universally derided by election experts as a ham-fisted fishing expedition that plays into election conspiracy theories.

The Arizona process has been besieged by infighting this week. Ken Bennett, a former Republican secretary of state who was serving as a “liaison” for the state Senate and the auditors, told a conservative radio host that he was locked out of the efforts earlier this week. On Wednesday, he told the host, KFYI’s James T Harris, that he was stepping down.

“I am the liaison in name only,” Bennett told Harris on Wednesday. “Being locked out at this critical point … makes it impossible for me to be a true liaison for the Senate.” Bennett said he feared being a “rubber stamp” for any final report.

The process has been vociferously opposed by the Republican-controlled Maricopa County board of supervisors and the Republican county recorder, the county’s chief election official. A handful of Republicans state senators in the closely divided chamber have also said they do not support the effort pushed by state Senate President Karen Fann.

“You told us in closed caucus the ‘audit’ would not cost taxpayers more than 150k and you wouldn't divulge who you were hiring,” state Sen. Paul Boyer, a Republican representing part of Maricopa County, tweeted at Fann last week. “Had you told us it was an inexperienced, partisan firm, I wouldn't have been the only one to object.”

The state Senate also issued new subpoenas to the Maricopa board of supervisors and the county’s election vendor — Dominion Voting Systems — on Monday, seeking ballot envelopes and routers. A spokesperson for the county told the Arizona Republic that it had “already provided everything competent auditors would need to confirm the accuracy and security of the 2020 election” and would review the new subpoena in the coming days.

Supporters of Trump have also sought to export Arizona-style reviews to other states. Earlier this month, Pennsylvania state Sen. Doug Mastriano, a Republican who has spread Trump’s lies about the election and is considering a run for governor, looked to kick off his own review in his state. Mastriano asked that three counties — Philadelphia, Tioga and York — turn over a sweeping amount of information.

The state’s top election official, acting Secretary of State Veronica Degraffenreid, warned counties against participating.

Officials from Tioga, a small county that Trump won handily, said they would not participate, and York officials questioned the legality of the request. Philadelphia officials have not publicly responded.

The Justice Department’s release of the guidance document on audits and another on voting methods fulfilled a pledge by Attorney General Merrick Garland in a speech last month, when he vowed to make voting rights enforcement a central focus of his tenure.

In that June 11 address, Garland also promised to double the voting-rights staff of Justice’s Civil Rights Division within 30 days. A Justice Department official said Wednesday that Garland’s goal had been met, but declined to say just how many people had been hired or transferred into the unit.