Justice Dept. warns states to follow federal law in election audits and voting changes

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The Department of Justice notified states Wednesday that they must follow federal law when conducting post-election audits or changing election procedures.

"We are concerned that if they are going to conduct these so-called audits, they have to comply with federal law and can't conduct them in a way that's going to intimidate voters," a senior department official said.

In two guidance documents, the Justice Department also said states should not assume that reverting to pre-pandemic voting procedures provides them a safe harbor from potential legal challenges.

"States should not conclude that because they ran a voting system in a certain way before the pandemic, they're free to go back to it, even if doing so has a racially discriminatory impact or is motivated by racial reasons," the official said.

"What we're saying is, you should not assume that if you abandon the practices that have made it easier for people to vote, that is not going to get scrutiny from the Department of Justice."

In conducting audits, for example, a federal civil rights law requires state and local election officials to preserve all voting records for 22 months after a federal election. Even if state legislators or other office holders take custody of ballots for an audit, the obligation to keep the records intact does not change.

The Justice Department notified Arizona in May that voting records in Maricopa County, where ballots are being reviewed, were no longer under the control of election officials and appeared not to be adequately safeguarded by a contractor.

The audit-related document that the Justice Department issued Wednesday also reminded states that canvassing certain areas to see if individuals were legally qualified to vote could be considered a form of voter intimidation, which is also banned by federal law. The letter sent to Arizona in May noted that contractors planned to "knock on doors to confirm if valid voters actually lived at the stated address."

Arizona said in response that the Maricopa County ballots are being securely maintained and that it would "indefinitely defer" the door-to-door component of its audit.

Edward B. Foley, an election law expert at Moritz College of Law at Ohio State University, said Wednesday's guidance "may dampen the enthusiasm to undertake these pseudo-audits that had seemed to be spreading rapidly around the country."

The message amounts to "proceed at your own risk because you may be facing a federal criminal prosecution if you breach chain-of-custody or anti-intimidation requirements," he said.

Arizona's audit began in late April but is still underway, and Republicans in a few other states have proposed audits, as well. The contractors hired by GOP members of the Arizona Senate reported earlier this month that they did not have enough information to finish their report.

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