It means that, even when private “auditors” are given access, state election officials still must preserve their integrity. (Enforcing this part of the law is something voting-rights groups have called on the administration to do.)
In a swipe at the unprofessional audit underway in Maricopa County, Ariz., the department stated: “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.” It added that the “risk of the records being lost, stolen, altered, compromised, or destroyed . . . 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 department also made clear it is prepared to enforce criminal penalties for violation of these document retention requirements. That is clearly a shot across the bow of the Arizona Republicans, who have allowed an inexperienced outfit led by conspiracy theorists to rifle through ballots and despoil voting machines.
Further, the department warned against various forms of voting intimidation that violate federal law, again signaling that phony GOP audits, especially Arizona’s, are on thin ice.
“There have been reports, with respect to some of the post-2020 ballot examinations, of proposals to contact individuals face to face to see whether the individuals were qualified voters who had actually voted,” the department stated, referencing Cyber Ninjas, the outfit that has proposed canvassing Arizona voters in search of voter fraud. “This sort of activity raises concerns regarding potential intimidation of voters. . . . Jurisdictions that authorize or conduct audits must ensure that the way those reviews are conducted has neither the purpose nor the effect of dissuading qualified citizens from participating in the electoral process. If they do not, the Department will act to ensure that all eligible citizens feel safe in exercising their right to register and cast a ballot in future elections.”
The directive is not a lawsuit, but it provides a clear predicate should Arizona or other jurisdictions flout voting laws. Given the uphill climb for new voting-rights legislation, aggressive enforcement of existing laws is critical. Attorney General Merrick Garland seems willing to combat fake audits, something not covered by legislation under consideration in Congress.
When coupled with other developments at the Justice Department regarding matters related to Jan. 6, it seems Garland is attempting to dispel the impression that he intends to be a passive observer of an assault on voting rights. He does not have a lot of arrows in his quiver thanks to the filibuster and the Supreme Court’s cramped view of voting rights, but he sounds ready to make the most of what he has. That’s a development all Americans should cheer.