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Justice Department warns GOP over pointless election 'audits'

As more Republican officials eye Arizona-style election "audits," the Justice Department is stepping up with warnings -- and a subtle threat.

To protect voting rights and the integrity of the nation's electoral system, Congress will need to approve new federal laws. There's reason for some cautious optimism that Democratic policymakers recognize the seriousness of the situation and are at least trying to work toward a solution.

But in the meantime, all eyes are on the Department of Justice, which also appears to be stepping up on the issue. NBC News had this report this week:

The Department of Justice notified states Wednesday that they must follow federal law when conducting post-election audits or changing election procedures. "We are concerned that if they are going to conduct these so-called audits, they have to comply with federal law and can't conduct them in a way that's going to intimidate voters," a senior department official said.

A New York Times report added that the Justice Department warned state officials that "auditors could face criminal and civil penalties if they destroy any records related to the election or intimidate voters in violation of the Civil Rights Act of 1960 and federal laws prohibiting voter intimidation."

It was the latest in a series of gradual steps, which started in earnest in May, when the Justice Department's Civil Rights Division wrote to Arizona State Senate President Karen Fann (R), explaining that federal officials had reviewed "news reports and complaints regarding the procedures being used" for the state GOP's utterly ridiculous "audit." The correspondence noted reports suggesting Arizona ballots, machines, and voter information are no longer under the control of state and local elections officials, aren't being kept secure, and are at risk of "being lost, stolen, altered, compromised or destroyed."

The Justice Department similarly reminded the Republican leader that "federal law creates a duty to safeguard and preserve federal election records."

As we've discussed, it was no small thing to see federal law enforcement warn Arizona Republicans that their sham "audit" may have violated federal laws regarding the mishandling of ballots and elections equipment.

Attorney General Merrick Garland appeared to raise the stakes, at least a little, in remarks a month later on voting rights. Though he did not explicitly mention the Grand Canyon State by name, the attorney general did say, in prepared remarks, "[S]ome jurisdictions, based on disinformation, have utilized abnormal post-election audit methodologies that may put the integrity of the voting process at risk and undermine public confidence in our democracy."

The problem, of course, is that for many far-right Republicans in a variety of states, Arizona's bonkers process has become a model worthy of emulation. In recent months, GOP officials haven't just flocked to Phoenix to observe the so-called "audit," they've also returned home to states like Wisconsin, Pennsylvania, Texas, and others, with plans to duplicate Arizona's farce.

Simultaneously, of course, Republican officials in far too many states are targeting voters' access, including an embrace of pre-2020 election procedures, many of which made it difficult to take advantage of early voting and/or postal balloting.

It's why the Justice Department issued a separate guidance to states on this, as well. As my MSNBC colleague Hayes Brown summarized:

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."

It's not a substitute for new federal legislation, but it's a start.

Indeed, Edward B. Foley, an election law expert at Moritz College of Law at Ohio State University, told NBC News that the Justice Department's guidance "may dampen the enthusiasm to undertake these pseudo-audits that had seemed to be spreading rapidly around the country."

The message amounts to "proceed at your own risk because you may be facing a federal criminal prosecution if you breach chain-of-custody or anti-intimidation requirements," he said.