The DOJ would not say whether it plans to take any action against Arizona and other states pursuing partisan audits.
The Justice Department on Wednesday issued a second warning to states considering their own so-called audits of the 2020 election, highlighting federal laws that those efforts may violate.
According to the new guidance, DOJ is “concerned that some jurisdictions conducting [audits] may be using, or proposing to use, procedures that risk violating the Civil Rights Act,” which requires that elections officials retain and preserve federal election materials for 22 months after an election.
While the guidance doesn’t specifically reference Arizona in that section, the Justice Department had previously raised concerns in a May letter that the state’s Republican-led Senate was at risk of violating the act with its audit. The state Senate had subpoenaed 2.1 million ballots from Maricopa County, the state’s largest, and handed them over to an outside contractor called Cyber Ninjas, whose CEO has promoted election conspiracy theories, to look into former president Donald Trump and his supporters’ baseless accusations of widespread voter fraud. That audit is ongoing.
Since DOJ sent that letter warning about the Arizona audit in May, pro-Trump politicians in several other states have pushed for their own audits, including in Pennsylvania and Wisconsin. A DOJ official said on a press call Wednesday that the new guidance is meant to tell not just Arizona, but “jurisdictions generally that if they are going to conduct these audits — so-called audits … they have to comply with federal law.”
The DOJ official would not answer questions about whether the department will take any action regarding the Arizona audit or other states that are trying to follow that path, saying that they “can’t comment on any investigations that might be ongoing.”
The guidance “sets down a marker that says the Justice Department is concerned about this,” the official said.
Like the May letter, the guidance also warns against voter intimidation. It notes that Cyber Ninjas had initially planned to knock on voters’ doors to confirm that they voted and lived at the correct address, a plan the Arizona Senate abandoned after receiving DOJ’s letter.
DOJ also made clear Wednesday that it believes that the Arizona Senate, Cyber Ninjas, and any other contractors who may participate in a future audit are responsible for preserving and retaining ballots and other election materials, not just elections officials, and warned of a “significant risk of the records being lost, stolen, altered, compromised, or destroyed” when elections materials are no longer controlled by officials. “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 guidance said.
The guidance notes that it is a federal crime to “willfully fail to comply with the retention and preservation requirements” and that anyone found guilty could “face fines of up to $1000 and imprisonment of up to one year for each violation.”
Due to the Arizona audit, Democratic Secretary of State Katie Hobbs consulted with the Department of Homeland Security and determined that Maricopa County’s election machines were no longer useable due to concerns about chain of custody. The county’s majority-Republican board, which has been highly critical of the audit, voted earlier this month to take $2.8 million from their general fund to replace the machines.