The Justice Department is putting states on notice about their obligations under federal law as GOP-led efforts to conduct reviews of the 2020 election intensify.
Federal authorities on Wednesday issued a pair of new guidance documents to states and voters to remind them of their responsibilities — and their rights.
The moves are part of the Biden administration’s push to demonstrate it is on guard amid new voting restrictions proposed and enacted by Republican-led states across the nation — and as Democratic-led federal voting legislation has stalled in Congress.
“We are keeping a close eye on what’s going on around the country,” said a Justice Department official, who requested anonymity to brief reporters. “If they’re going to conduct these so-called audits, they have to comply with federal law.”
First guidance: preserving election materials
The first document makes clear that states are required to preserve election materials, such as ballots, without damage or destruction, for 22 months following a federal election. That’s a heightened concern for U.S. authorities after Arizona lawmakers hired a private contractor with no election-related experience to perform a review.
In May, the Justice Department sent a warning letter to Arizona’s Republican state Senate leaders, who initiated the review, explaining the state’s duties under the Civil Rights Act of 1960 and warning that a plan to have contractors go door to door to question voters could run afoul of other laws that prohibit voter intimidation.
Since its letter to Arizona officials, the Civil Rights Division at the Justice Department has had conversations with other jurisdictions, the DOJ official said. The official wouldn’t comment on any open investigations in Arizona or elsewhere.
Former President Donald Trump has been exhorting Republican state officials to perform audits of the 2020 election, baselessly claiming the vote was rigged. His attorney general said there was no widespread fraud last year, and his cybersecurity czar called the election “the most secure in American history.”
Second guidance: methods of voting
In other guidance, authorities also want to make clear that states that reverse changes they made to accommodate voters during the pandemic will get no “safe harbor” from the Justice Department if the backsliding is motivated by discrimination or has a discriminatory effect.
“We didn’t want to sort of give jurisdictions or think jurisdictions should have a safe harbor to say, ‘Because we ran our voting system this way before the pandemic, we’re free to go back to that,’ even if going back to that has a racially discriminatory impact or even if going back to that is, in part, motivated by racial reasons,” the official said.
The Justice Department official continued: “You should not assume if you abandon the practices that have made it easier for people to vote, that abandonment is not going to get scrutiny from the Department of Justice.”
In June, the department sued the state of Georgia, saying its controversial new election measure is intended to restrict ballot access to Black voters.
But this month the U.S. Supreme Court imposed new roadblocks for authorities who want to use the remaining tool to police discrimination in voting under the landmark Voting Rights Act of 1965. Experts said the court’s ruling in Brnovich v. Democratic National Committee, which gives states new leeway to restrict some voting access, will complicate the Justice Department challenge and many others.
Earlier this week, the Civil Rights Division weighed in with a statement of interest in a separate case the NAACP filed against Georgia’s secretary of state, Brad Raffensperger, who’s defended the new law.
The federal lawyers said the NAACP is advancing plausible allegations of discrimination when it claims Georgia is making it harder to cast early and absentee ballots and when it “bars efforts to reduce the discomfort of voters waiting hours in lines prevalent in heavily minority precincts on Election Day.”
Those amount to “sizeable” burdens, more than mere inconvenience, the Justice Department brief said.
“Whether through litigation or the issuance of official guidance, we are using every tool in our arsenal to ensure that all eligible citizens can exercise their right to vote free from intimidation, and have their ballots counted,” Assistant Attorney General Kristen Clarke said in a statement Wednesday.