As Trump-supporting politicians in states around the country consider conducting conspiratorial “audits” of the 2020 election returns, the Justice Department warned Wednesday that federal law requires states to maintain possession of or direct supervision over election records that some states are handing over to ill-prepared contractors.
An eight-page guidance document issued by the Justice Department on Wednesday explains federal laws surrounding “Post-Election ‘Audits,’” and explains that DOJ “interprets the Civil Rights Act to require that covered elections records ‘be retained either physically by election officials themselves, or under their direct administrative supervision.’”
The guidance notes that an “unusual second round of examinations have been conducted or proposed” in jurisdictions across the country, and notes that no recounts “produced evidence of either wrongdoing or mistakes that casts any doubt on the outcome of the national election results.” The guidance notes the joint statement from federal and state officials released by the federal Cybersecurity & Infrastructure Security Agency declaring that the Nov. 3, 2020, election “was the most secure in American history.”
A Justice Department official told reporters on Wednesday that the administration was “keeping a close eye on what’s going on around the country” as Republican politicians supporting former President Donald Trump continue to sow doubt about the thoroughly debunked conspiracy theories about a stolen election. The official said that the Justice Department is seeking to make things clear to jurisdictions going forward. DOJ previously expressed concerns about the Arizona audit, which was conducted by an outside firm with little expertise.
The new guidance states that allowing elections records to be held by outside contractors “can lead to a significant risk of the records being lost, stolen, altered, compromised, or destroyed,” and that 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.”
Democrats on the House Oversight and Government Reform Committee announced their own probe of the Arizona “audit,” which has helped to convince more than half of Republican voters that Trump could land back in the White House this year. (He won’t.) More recently, the Arizona contractor has sought permission to go door-to-door asking voters about their ballots.
A separate guidance issued by DOJ on Wednesday clarified the rights of voters under federal law, and encouraged the use of mail-in ballots, which have been a target of Trump’s, whose conspiracy theories about millions of stolen votes led to the Jan. 6 attack on the Capitol.
“Voting by mail can be an effective way of ensuring that many citizens have a practical ability to participate in the election process, given the various logistical difficulties that may preclude individuals from appearing at a polling place on Election Day,” the separate guidance stated.
Attorney General Merrick Garland said last month that the administration would be working to double the number of DOJ voting rights enforcement staffers in the next 30 days. (A DOJ official said that the Justice Department had met that goal, but wouldn’t elaborate on how many officials were in place.)
“There are many things open to debate in America,” Garland said. “But the right of all eligible citizens to vote is not one of them. The right to vote is the cornerstone of our democracy, the right from which all other rights ultimately flow.”
The Justice Department also sued the state of Georgia over its new election laws last month, alleging that the voting restrictions were passed with unlawful discriminatory intent and the “knowledge of the disproportionate effect that these provisions ... would have on Black voters’ ability to participate in the political process on an equal basis with white voters.”