As new voter restrictions and bogus post-election “audits” sweep across the country, the Department of Justice sent a shot across the bow Wednesday, issuing two documents laying out federal law on election records and voting rights.
Attorney General Merrick Garland, who previewed the documents last month when he announced the federal lawsuit over new voting restrictions in Georgia, said the department “will not hesitate to act” if states violate federal laws meant to ensure free and fair elections.
“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,” Garland said in a press release.
Scrutiny On Rescinded Pandemic Voting Rules
The first of the two documents, “Guidance Concerning Federal Statutes Affecting Methods of Voting,” noted that pandemic-era voting measures, like expanded mail-in and early voting, accompanied record turnout in 2020 — and also, that some states “have barred continued use of those practices or have imposed additional restrictions on voting by mail or early voting.”
“The Department’s enforcement policy does not consider a jurisdiction’s re-adoption of prior voting laws or procedures to be presumptively lawful; instead, 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,” the document stated.
The guidance is especially timely given the Supreme Court’s recent decision in Brnovich v. Democratic National Committee, in which the court upheld two restrictions in Arizona and, in so doing, further weakened the Voting Rights Act.
The DOJ’s 13-page guidance document Wednesday didn’t go too far into particulars, instead listing the relevant legal authorities under various laws including the VRA, the Americans with Disabilities Act, the Help America Vote Act and other laws.
Section 2 of the VRA, the department noted, “prohibits jurisdictions from eliminating or declining to establish in-person voting or limiting hours and locations of in-person voting if such decisions are intended to impede voters on account of race from casting a ballot or will result in an election system that is not equally open to voters on account of race.”
The two-pronged nature of the section — “intend” or “result” — is key: The former is more difficult to demonstrate, and the latter was affected by Alito’s ruling.
“To the extent that minority and non-minority groups differ with respect to employment, wealth, and education, even neutral regulations, no matter how crafted, may well result in some predictable disparities in rates of voting and noncompliance with voting rules,” Alito wrote for the majority.
Referring to the DOJ document, University of Kentucky election law professor Joshua A. Douglas told TPM, “it is good to see the DOJ take a robust view of protecting the right to vote, especially as it appears the federal courts are unwilling to do so.”
The limited guidance documents underlined the extent to which new legislation is needed to recover from legal setbacks to voting rights over the past decade, Sean Morales-Doyle, acting director of the Brennan Center’s Voting Rights and Elections Program, told TPM. Democrats’ efforts to pass such legislation have so far gotten nowhere, thanks to Republican opposition and the Senate filibuster.
“It’s great to see the Department of Justice taking the approach that they’re taking, but I think without action from Congress and the White House to change federal law and restore and strengthen it, the Department of Justice’s guidance is not going to be enough,” Morales-Doyle said.
Audit Warnings May Fall On Deaf Ears
The second document, “Federal Law Constraints on Post-Election ‘Audits’” comes as politicized “audits” have flourished across the country — most notably in Arizona and Pennsylvania. There are several lesser-known recounts and reviews in Wisconsin and smaller jurisdictions like Barry County, Michigan, where a deputy sheriff and a private investigator have gone town-to-town, questioning clerks about their Election Day procedures.
Just 8 pages total, the guidance noted that normal automatic recounts and canvasses across the country found nothing untoward this last election, but that “in recent months, in a number of jurisdictions around the United States, an unusual second round of examinations have been conducted or proposed.”
The document was primarily concerned with record-keeping, which is particularly relevant because localities have in some cases handed over access to voting materials to private contractors with no prior experience in elections, such as Wake TSI and Cyber Ninjas.
The risk of records being lost, compromised or left unaccounted for “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 document said.
The document ended with a section on voter intimidation, which acted as a follow-up of a letter to Arizona leaders raising concerns that a planned canvas of voters as part of that audit could constitute voter intimidation. Audit leaders called off the canvassing plans after receiving the letter, but recently raised the prospect of revisiting the effort.
“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 document said, citing the abandoned Arizona plans. “This sort of activity raises concerns regarding potential intimidation of voters.”
The DOJ’s guidance made the rounds Wednesday, but it may meet some resistance on the ground.
In June, after Garland announced that the DOJ was formulating guidance for post-election audits, Arizona State Sen. Wendy Rogers (R) — who recently called for decertifying Arizona’s 2020 election results — responded with the improbable threat to jail Garland.
“You will not touch Arizona ballots or machines unless you want to spend time in an Arizona prison,” she wrote on Twitter.
On Thursday, another official pursuing his own questionable 2020 election investigation — Dar Leaf, sheriff of Barry County, Michigan — told TPM the DOJ’s involvement wasn’t welcome.
“I don’t know why they’re poking their nose into that,” he said. “That’s not their jurisdiction.”
