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DOJ has a warning for Arizona's 'audit' and state attacks on voting rights

The new Justice Department guidance to states is a warning shot in defense of democracy.
Photo illustration: A hand holding a ballot that has the state map of the United States and a red wax seal of the Department of Justice.
Consider this a warning.Anjali Nair / MSNBC; Getty Images

There’s an art to the subtle threat. Not the bold, blustery rages that former President Donald Trump would reportedly fly into behind closed doors but the gentle reminder, said with a smile, that your life could be made miserable if you don’t watch your step.

On Wednesday, the Department of Justice released two documents warning states that they have to follow federal law before, during and after elections. Without naming names, the first set of guidelines generally called out states that have moved to change their election laws to restrict voters’ access to the polls after the 2020 election. The second is focused on the “audit” still taking place in Arizona, along with potential copycats.

The simple — and much-needed — message from the Justice Department: “We’re watching you.”

Nowhere in the first document does it explicitly say the department will be targeting state legislators, election officials or anyone else using Trump’s rhetoric to make voting harder. Instead, it just casually points out that several federal laws could be violated in the process of doing so, even if that just involves rolling procedures back to their pre-pandemic standards:

Since the 2020 election, 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. In view of these developments, guidance concerning federal statutes affecting methods of voting is appropriate.

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.

That, in DOJ’s eyes, includes making sure new restrictions on voting by mail, early voting or voting on Election Day don’t violate, for example, the Voting Rights Act, the National Voter Registration Act of 1993 or the Civil Rights Act of 1957.

The department has already made clear it is willing to go to court to enforce those laws. Last month, the Justice Department sued Georgia under the Voting Rights Act, alleging that the state’s recently passed election law unfairly targeted minority voters. The guidelines issued Wednesday are a shot across the bow of any states that would like to follow Georgia’s lead.

Even more interesting — and ominous — is the document focused on “Federal Law Constraints on Post-Election ‘Audits.’” (Scare quotes theirs!) In it, the Justice Department reminds readers the 2020 election was “the most secure in American history” and that none of the recounts required under state law “produced evidence of either wrongdoing or mistakes that casts any doubt on the outcome of the national election results.”

Yet, Arizona has spent months now going through a “digital forensic audit” that has found no evidence of any of the wild conspiracies it’s been chasing. (It has however made bank for the auditors, so you can see why they woudn’t want the party to end anytime soon.) Despite that, the firm behind the audit suggested earlier this month that maybe it should be allowed to go door to door and canvass Maricopa County voters to double-check their votes.

The Justice Department had already warned the Arizona Senate, which approved this farce, that the probe might risk violating federal law. Wednesday’s guidelines are more explicit about what laws might have been broken — and the consequences for breaking them.

First, it warned that handing over election records to “private actors who have neither experience nor expertise in handling such records and who are unfamiliar with the obligations imposed by federal law” — i.e., Cyber Ninjas, the firm running the show in Arizona — would likely be a violation of the Civil Rights Act of 1960. “The Act protects the right to vote by ensuring that federal elections records remain available in a form that allows for the Department to investigate and prosecute both civil and criminal elections matters under federal law,” the document explained. And breaking that law is a very big deal that carries potential criminal penalties.

Second, the guidelines stress that intimidation of voters — which a door-knocking scheme could qualify as — is, in fact, super illegal and that intimidation doesn’t have to involve physical threats. “In certain contexts, suggesting to individuals that they will face adverse social or legal consequences from voting can constitute an impermissible threat,” the document said, before listing several examples from past court cases:

  • "Sending a letter to foreign-born Latino registered voters warning them that 'if they voted in the upcoming election their personal information would be collected … and … could be provided to organizations who are "against immigration"' was potentially intimidating."
  • "Having police officers take down the license plate numbers of individuals attending voter registration meetings contributed to intimidating prospective voters."
  • "Sending robocalls telling individuals that if they voted by mail, their personal information would become part of a public database that could be used by police departments to track down old warrants and credit card companies to collect outstanding debts could constitute intimidation."
  • "Linking individual voters to alleged illegalities in a way that might trigger harassment could constitute intimidation."
  • "Conducting a 'ballot security' program in which defendants stand near Native American voters discussing Native Americans who had been prosecuted for illegally voting, follow voters out of the polling places, and record their license plate numbers might constitute intimidation."

“Jurisdictions 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 Justice Department wrote. “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.”

Taken together, the two documents can be considered part of Attorney General Merrick Garland’s “f--- around and find out” doctrine on voting rights. (Not that he’d ever call it that.)

Garland announced in June that his department will make countering new election restrictions a major priority for the Civil Rights Division. Already this year, 18 states have enacted 30 laws that make voting more difficult, according to the Brennan Center for Justice. Hundreds more bills have been proposed in states across the country. The new guidelines are a sharp promise that any future shenanigans will be met with a swift challenge.

Are these guidance documents enough on their own to stop Republicans' three-step plan to thwart democracy? No: That will require Congress passing new laws to bolster the Justice Department's currently flagging arsenal. But it’s heartening to see that Garland intends to do what he can in the meantime.