Department of Justice issues 'guidance' on post-election reviews; some view it as a warning
The U.S. Department of Justice on Wednesday issued guidelines for post-election audits, a move that comes three months after the Arizona Senate began a review of Maricopa County's election and as other states consider similar exercises.
The guidance outlines federal laws pertaining to the integrity of the election audits, including the chain of custody of records and the protocols when working with an independent contractor. The Justice Department also issued a separate guidance on methods of voting.
While the department described the documents as guidance, they also serve as a kind of warning about what the federal government will and will not tolerate as part of these reviews. The documents only mention Arizona's effort once in passing, but they follow an earlier letter sent to the Arizona Senate president that raised concerns with the proceedings here.
“The right of all eligible citizens to vote is the central pillar of our democracy, and the Justice Department will use all of the authorities at its disposal to zealously guard that right,” Attorney General Merrick B. Garland said in a prepared statement.
“The guidances issued today describe certain federal laws that help ensure free, fair, and secure elections. Where violations of such laws occur, the Justice Department will not hesitate to act.”
Some see stark message from DOJ
The guidance on the post election reviews specifically mention laws regarding proper custody of ballots and other election material and restrictions regarding contacting voters.
The contractors leading the Arizona audit recently recommended a door-to-door canvassing of some voters in Maricopa County, something Senate leadership had months ago said was on hold indefinitely.
Some outside observers viewed the guidance as an explicit message from the Justice Department cautioning similar efforts elsewhere.
"It is a very up front way of basically warning the folks running the audit in Arizona and also their supporters that this is just not how you run an audit," said Maurice Turner, a cybersecurity fellow with the Alliance for Securing Democracy.
"This is basically the DOJ saying, 'We're on solid legal ground to launch a full investigation into what's going on and anyone in any other state that is looking at Arizona as a model of how to do a forensic audit is going to be in trouble as well.'"
Under federal law, all election materials must be preserved for nearly two years after the votes were cast and the records must “be retained either physically by election officials themselves, or under their direct administrative supervision.”
Whether the chain of custody has been secure for the entirety of the audit remains unclear. The security of the election data has been heavily scrutinized since the recount began.
In early June, The Arizona Republic reported that Ben Cotton, a founder of CyFIR, one of the Senate’s subcontractors, had made copies of some election materials and took them to a “secure lab” in Montana, which appeared to be a home owned by Cotton.
Whether those copies qualify as official election materials remains unclear as the exact details of their removal are unknown. If they maintained the chain of custody when transferring the copies they could possibly be considered official election materials, Turner said.
"But there's no way that the election official would be able to sign off and say the chain of custody remained intact the entire time that the digital copy was outside of their control," he said.
A warning for Cyber Ninjas, too
While the guidance doesn’t specifically name the Arizona audit, it does cite the statement of work from Senate subcontractor Cyber Ninjas as an example of potential voter intimidation after they outlined plans to collect voter information through “a combination of phone calls and physical canvassing.”
A Cyber Ninjas spokesperson did not immediately respond to a request for an update on whether a canvassing effort was planned.
The action from the Justice Department comes about six weeks after the Yavapai County Sheriff warned residents of people knocking on doors impersonating election officials. These unofficial canvasses began just as the state Senate announced their plans to use door-to-door efforts as part of the election audit in Maricopa County.
It's not known who was behind that effort, but it doesn't appear to be part of the Maricopa County review.
In addition to the election reviews, a separate guidance extends to how eligible citizens can cast a vote after many state's modified their voting methods to adapt to the pandemic.
Some states chose to formally adopt those changes while others chose to return to the methods used prior to the pandemic. The guidance also outlines some of the efforts to further restrict mail-in and early voting as well as some of the voter protections guaranteed under federal law.
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