Wednesday’s guidance came in the form of two documents entitled, respectively, ”Federal Law Constraints on Post-Election ‘Audits” and “Guidance Concerning Federal Statutes Affecting Methods of Voting.” In the DOJ’s guidance on post-election audits, the Biden administration began with its familiar refrain that “the November 3rd election was the most secure in American history,” and that notwithstanding “automatic recounts or canvasses,” there was no evidence “of either wrongdoing or mistakes that casts any doubt on the outcome of the national election results.”
Yet, as the DOJ put it, there has since been an “unusual second round of examinations” by states looking at “certain ballots, election records, and election systems used to conduct elections in 2020.” Then, with a not-so-veiled threat, the Biden administration rattled off the “federal constraints, which are enforced by the Department of Justice,” on these audits.
Helping Suspicious Events Avoid Oversight
Among other laws, the federal guidance on post-election audits highlighted Section 301 of the Civil Rights Act of 1960 that “requires state and local election officials to ‘retain and preserve’ all records relating to any ‘act requisite to voting’ for twenty-two months” after the covered election. This mandate, the DOJ explained, means that election records must “be retained either physically by election officials themselves, or under their direct administrative supervision,” the latter of which requires election officials to have physical access to the records, according to the DOJ.
While not singled out by name, the detail contained in its guidance statements suggest the DOJ has in its sights the Arizona Republicans leading the probe into Maricopa County voting. Just Monday, the Republican-led Arizona Senate served another subpoena on officials in Maricopa County, seeking its routers and other information necessary for the legislature to complete its audit.
The DOJ’s guidance will likely provide the Maricopa County Board of Supervisors, which has resisted attempts by the state Senate to obtain the equipment and other data, an excuse to keep a close hold on the information. The guidance from the Biden administration, however, seems also to seek to scare off state officials from pursing such investigation, as seen by the DOJ’s reference to the criminal penalties that attach to willful violations of the Civil Rights Act.
Attempt To Intimidate State Officials
The DOJ referenced criminal penalties again later in its guidance statement when discussing federal laws that prohibit the intimidation of voters. Then, after providing some examples of non-physical intimidation, the Biden administration suggests that work apparently planned as part of the Arizona audit qualifies as “intimidation.”
“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 DOJ wrote, citing a “Cyber Ninjas Statement of Work.” Cyber Ninjas is the Florida-based company hired by the Arizona Senate to conduct the audit. It reportedly had proposed using a “combination of phone calls and physical canvassing” to “collect information on voters in three urban precincts.”
The Biden administration claims “this sort of activity raises concerns regarding potential intimidation of voters,” especially “when such investigative efforts are directed, or are perceived to be directed, at minority voters or minority communities.” States “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,” the DOJ continues, before warning that “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 DOJ’s closer seems a sure signal that it intends to shut down any real analysis of voting in Arizona because it claims that investigative efforts that are merely “perceived to be directed at minority communities” qualify as intimidation under federal law.
Keep The 2020 Chaos Voting Or Else
Arizona is not the DOJ’s only target, however, as the second guidance document issued yesterday shows. Rather, in “Guidance Concerning Federal Statutes Affecting Methods of Voting,” the Biden administration, while hiding behind a litany of legal citations and legalese, exposes its intent to target any state that tightens voting procedures from the pandemic period.
After noting favorably the record turnout seen in 2020, stemming from the increased use of vote by mail and early voting, the DOJ explained that since then, “some States have responded by permanently adopting their COVID-19 modifications; by contrast, other States have barred continued use of those practices or have imposed additional restrictions on voting by mail or early voting.”
While one would think that returning to pre-COVID voting procedures would pose no legal problem—after all, if a voting rule was valid before COVID, why would it be illegal now—the Biden Department of Justice sees things differently.
“The Department’s enforcement policy does not consider a jurisdiction’s re-adoption of prior voting laws or procedures to be presumptively lawful,” the guidance document reads. Rather, “the Department will review a jurisdiction’s changes in voting laws or procedures for compliance with all federal laws regarding elections, as the facts and circumstances warrant.”
In other words: Red states, prepare to be sued.
Politicizing Election Security Is Dangerous
The DOJ already targeted Georgia last month with litigation under the Voters Right Act, claiming Georgia’s mainstream regulations of the time, place, and manner of elections result “in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” At the time the Biden administration filed suit against Georgia, the allegations against the state were pretty insane, but the entire case became a burning dumpster after the Supreme Court issued its decision in Brnovich v. DNC, shortly after the DOJ filed the case.
In Brnovich, the Supreme Court upheld Arizona’s in-precinct voting requirement and ban on ballot harvesting against a Voting Rights Act challenge. In doing so, the high court delineated several guideposts to address whether a voting regulation abridges the right of citizens to vote on account of race, including “the size of the burden; the degree to which the voting rule departed from the standard in 1982 when Congress amended [the Voting Rights Act]; the size of the disparity of the rule on minorities; the opportunities provided by the state’s entire voting system; and the strength of the state’s interests in the law.”
While yesterday’s guidance does not explicitly conflict with the court’s holding in Brnovich, that the Biden administration stressed in its summary that the Voting Right Act’s demand that election systems be equally open to voters of all races “reaches rules involving the availability of vote by mail, deadlines, application and ballot formalities, or drop boxes for returning ballots,” suggests the DOJ intends to push more frivolous lawsuits, like the one filed against Georgia.
At least in the Georgia case, though, the DOJ did not have the benefit of the Supreme Court’s decision in Brnovich. Should the Biden administration execute on the not-so-subtle threats conveyed in Wednesday’s guidance, it will be doing so with full knowledge that the voting-integrity laws passed by Republican-controlled states fully comply with the Voting Rights Act.
Unfortunately, the Biden administration and the Democrat Party have decided that they score a victory just by pretending Republicans seek to disenfranchise voters of color and by portraying voting-integrity laws as Jim Crow 2.0, whether they win in court (or success in passing H.R. 1). Here, the left is playing with fire, because our country is too divided to withstand many more elections where half the populace believes the election was rigged.
That reality represents the clear and present danger—not Arizona’s audit or any of the other complaints put forth by the Biden administration in yesterday’s guidelines. ✪