The U.S. Department of Justice cautioned states on Wednesday that undertaking partisan election audits like the one underway in Arizona could violate federal law, sending a warning shot to states as more Republican state lawmakers move forward with their own controversial probes.

Maricopa County ballots cast in the 2020 general election are examined and recounted by contractors … [+] working for Florida-based company, Cyber Ninjas, Thursday, May 6, 2021 at Veterans Memorial Coliseum in Phoenix.

Key Facts

The DOJ’s new guidance document explicitly warns against audits in which election officials are forced to turn over materials like ballots or voting machines to state lawmakers or third parties—as in Arizona, whose audit is being run by the private company Cyber Ninjas.

Federal law requires state and local election officials to retain federal election records for at least 22 months after an election, and the DOJ said it interprets the Civil Rights Act to mean “elections records [must] ‘be retained either physically by election officials themselves, or under their direct administrative supervision.’”

Violating federal law by turning over election materials could be punishable through fines of up to $1,000 or a prison sentence of up to one year.

While some audits could comply with state law, the DOJ said, “federal law imposes additional constraints with which every jurisdiction must comply.”

Taking election materials out of election officials’ control carries a “significant risk of the records being lost, stolen, altered, compromised, or destroyed,” the DOJ wrote.

The federal government had previously warned the Arizona audit could be in violation of federal law, but their guidance Wednesday extends that warning to all states considering similar probes.

Crucial Quote

“Election audits are exceedingly rare. But the Department is concerned that some jurisdictions conducting them may be using, or proposing to use, procedures that risk violating the Civil Rights Act,” the DOJ document reads. “The duty to retain and preserve election records necessarily requires that elections officials maintain the security and integrity of those records and their attendant chain of custody, so that a complete and uncompromised record of federal elections can be reliably accessed and used in federal law enforcement matters.”

In addition to their election audit guidance, the DOJ also issued separate guidance Wednesday warning against states enacting more restrictive voting rules, another trend now being adopted by Republican state lawmakers in the wake of the November election. The DOJ said while many states expanded voting access due to the Covid-19 pandemic, such as by making it easier to vote by mail, the federal government “does not consider a jurisdiction’s re-adoption of prior voting laws or procedures to be presumptively lawful.” This signals the DOJ could take legal action against states that impose or reimpose stricter voting procedures the government believes violates federal law, as it was outlined in the guidance.

Key Background

Maricopa County, Arizona, is now in the midst of a highly controversial partisan audit, which has raised concerns over issues like a lack of transparency and how it’s being funded. Despite the controversy, Republican lawmakers across the country are now issuing their own calls for similar so-called forensic investigations that examine voting materials, including even in states that former President Donald Trump won. Pennsylvania GOP state Sen. Doug Mastriano has subpoenaed election officials in the state for their voting materials—a request that is so far being ignored—and Texas House Democrats introduced legislation last week that could kickoff an audit in that state as well. Wisconsin has multiple audits underway after Assembly Speaker Robin Vos announced he hired former law enforcement officers? to investigate the election on top of an audit being conducted by the state’s nonpartisan Legislative Audit Bureau, and state Rep. Janel Brandtjen has also called for a third “comprehensive, forensic examination” of the election results. While the audits will not change the election results, critics warn they could further sow distrust in the vote count. The audits could also carry a hefty price tag for local election officials, as state officials in Arizona and Pennsylvania have already decertified voting machines that have been turned over to third-party investigators, causing states to have to replace their machines and potentially spend millions of dollars doing so.