The U.S. Department of Justice is asking Senate President Karen Fann to explain what steps she’s taking to make sure the election audit she ordered doesn’t violate federal laws prohibiting voter intimidation and requiring ballots be preserved.
In a letter to Fann on Wednesday, Pamela Karlan, the principal deputy assistant attorney general of the Justice Department’s Civil Rights Division, said the department had two major concerns with the audit.
First, Karlan said federal law requires state and local election officials to safeguard and preserve election records. She expressed concern that Maricopa County election officials are no longer in control of ballots, election systems and other materials.
If the Senate designates someone else to serve as a custodian for election records, which must be maintained for 22 months, the Civil Rights Act of 1960 requires “administrative procedures be in place giving election officers ultimate management authority over the retention and security of those election records, including the right to physically access” them, Karlan wrote.
“We have a concern that Maricopa County election records, which are required by federal law to be retained and preserved, are no longer under the ultimate control of elections officials, are not being adequately safeguarded by contractors, and are at risk of damage or loss,” Karlan said in her letter.
Maricopa County officials wouldn’t allow the Senate to conduct its audit at county facilities, and have refused to participate in any way. The audit is being overseen by Cyber Ninjas, a Florida-based cybersecurity company with no experience in elections.
The other concern cited in the letter involved possible violations of the 1965 Voting Rights Act. The statement of work for Cyber Ninjas called for the audit to “identify voter registrations that did not make sense” and knock on voters’ doors to confirm their registration information, as well as plans to conduct an audit of voting history in at least three precincts “with a high number of anomalies.” Those plans would require audit workers to visit the homes of voters to determine whether they voted in the 2020 general election.
Karlan said that raises concerns that audit workers might engage in voter intimidation in violation of the Voting Rights Act.
“Past experience with similar investigative efforts around the country has raised concerns that they can be directed at minority voters, which potentially can implicate the anti-intimidation prohibitions of the Voting Rights Act. Such investigative efforts can have a significant intimidating effect on qualified voters that can deter them from seeking to vote in the future,” Karlan wrote.
Karlan asked Fann to respond to her concerns and to explain what steps the Senate is taking to ensure the audit doesn’t violate federal laws. Fann, R-Prescott, said the Senate’s attorney is preparing a response for DOJ.
In an April 29 letter, several voting rights organizations asked DOJ’s Civil Rights Division to send federal observers to monitor the audit. The letter raised both the issues that Karlan raised with Fann.
“Ballots that are protected under federal law are in imminent danger of being stolen, defaced, or irretrievably damaged, and Arizona citizens are in imminent danger of being subject to unlawful voter intimidation as a result of flawed audit procedures,” wrote representatives of the Brennan Center for Justice, Protect Democracy and the Leadership Conference.