DOJ issues warnings to states on voting laws and audits

The Department of Justice took aim Wednesday at post-election audits and a flurry of voting laws passed after the 2020 elections, warning states some of their actions may run afoul of the law.

The two new guidances released by the department follow a commitment from Attorney General Merrick Garland in June to offer states a refresher on legal obligations as DOJ ramps up its enforcement of voting rights statutes.

The guidance on post-election audits is a clear shot at an effort underway in Arizona, where the state hired an outside firm with no election experience to review its ballots, prompting concern that ballots were being improperly shared with and handled by the company.

“The department is concerned that some jurisdictions conducting them may be using, or proposing to use, procedures that risk violating the Civil Rights Act,” DOJ wrote in the guidance, noting the election officials have record retention requirements.

“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,” it continued.

Arizona hired Cyber Ninjas, a cybersecurity firm, to conduct the audit, and the firm has since proposed going door-to-door to ask voters whether they voted in the election.

DOJ already sent a letter to Arizona in May warning of issues with the audit and Cyber Ninjas’s plans.

“Federal law prohibits engaging in actions that are likely to deter voters from voting in the future, and that threat of certain kinds of investigations in the past had been held by federal courts to be potentially intimidating to voters,” a DOJ official told reporters in a call Wednesday.

“The reason we’re issuing this as guidance is to tell jurisdictions, generally, that we are concerned that if they’re going to conduct these audits — so-called audits — of the past elections, they have to comply with federal law and warning them that they can’t conduct these audits in a way that is going to intimidate voters,” the official said.

The Arizona Senate’s Republican leaders on Monday sought subpoenas for records from Maricopa County election officials as they continue to push a 2020 recount.

A second guidance from DOJ reviews a panoply of sections of different voting rights laws that bar various forms of discrimination and protect practices like early voting and voting by mail.

A DOJ official said the guidance is meant to serve as a reminder to states that they cannot backslide to less inclusive voting practices if those state laws are discriminatory against certain classes of voters, such as racial minorities.

“We didn’t want to sort of give jurisdictions safe harbor to say, ‘Well 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,” the official told reporters on a call.

The official called a new Georgia law — which was challenged by DOJ in June — “the obvious example of that” by restricting ballot drop box locations and imposing new voter ID requirements for absentee ballots.

“What we’re just saying to jurisdictions is: you should not assume that 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.”

During the call the official said the DOJ has also met Garland’s promise to double the number of voting rights attorneys employed by the section.

Though the official would not say how many lawyers DOJ hired, the department ended the Trump administration with around 15 voting rights lawyers.