DOJ Issues Second Warning About Partisan ‘Audits’ of 2020 Election

Buzzfeed News reports, The Justice Department Is Sending States A Second Warning About Partisan “Audits” Of The 2020 Election:

The U.S. Justice Department on Wednesday issued a second warning to states considering their own so-called audits of the 2020 election, highlighting federal laws that those efforts may violate.

According to the new guidance, DOJ is “concerned that some jurisdictions conducting [audits] may be using, or proposing to use, procedures that risk violating the Civil Rights Act,” which requires that elections officials retain and preserve federal election materials for 22 months after an election.

While the guidance doesn’t specifically reference Arizona in that section, the Justice Department had previously raised concerns in a May letter that the state’s Republican-led Senate was at risk of violating the act with its audit. The state Senate had subpoenaed 2.1 million ballots from Maricopa County, the state’s largest, and handed them over to an outside contractor called Cyber Ninjas, whose CEO has promoted election conspiracy theories, to look into former president Donald Trump and his supporters’ baseless accusations of widespread voter fraud. That audit is ongoing.

Since DOJ sent that letter warning about the Arizona “fraudit” in May – [with no subesequent legal action] – pro-Trump politicians in several other states have pushed for their own “fraudits,” including in Pennsylvania and Wisconsin. A DOJ official said on a press call Wednesday that the new guidance is meant to tell not just Arizona, but “jurisdictions generally that if they are going to conduct these audits — so-called audits … they have to comply with federal law.”

The DOJ official would not answer questions about whether the department will take any action regarding the Arizona audit or other states that are trying to follow that path, saying that they “can’t comment on any investigations that might be ongoing.”

The guidance “sets down a marker that says the Justice Department is concerned about this,” the official said.

Like the May letter, the guidance also warns against voter intimidation. It notes that Cyber Ninjas had initially planned to knock on voters’ doors to confirm that they voted and lived at the correct address, a plan the Arizona Senate abandoned after receiving DOJ’s letter.

DOJ also made clear Wednesday that it believes that the Arizona Senate, Cyber Ninjas, and any other contractors who may participate in a future audit are responsible for preserving and retaining ballots and other election materials, not just elections officials, and warned of a “significant risk of the records being lost, stolen, altered, compromised, or destroyed” when elections materials are no longer controlled by officials. “This risk 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 guidance said.

The guidance notes that it is a federal crime to “willfully fail to comply with the retention and preservation requirements” and that anyone found guilty could “face fines of up to $1000 and imprisonment of up to one year for each violation.”

Due to the Arizona audit, Democratic Secretary of State Katie Hobbs consulted with the Department of Homeland Security and determined that Maricopa County’s election machines were no longer useable due to concerns about chain of custody. The county’s majority-Republican board, which has been highly critical of the audit, voted earlier this month to take $2.8 million from their general fund to replace the machines.

This comes after lead conspiracy theorist, Senator Karen Fann, is now chasing more rabbits down the QAnon rabbit hole, demanding that Maricopa County turn over its routers. Charles Pierce at Esquire is incredulous. First It Was the Servers, Now It’s the Routers:

First, there’s some news from the extended farce playing out in Arizona—namely, that things are coming steadily unstrung. First, Ken Bennett, the “liaison” between the Cyber Ninjas and the state senate that hired them, has been banned from the building. From the Arizona Republic:

Ken Bennett said Monday he is evaluating how he will be involved in the audit moving forward. Bennett, former secretary of state, has served as the liaison between the Senate Republicans who ordered it and their private contractors — led by Florida-based cybersecurity firm Cyber Ninjas — since the audit began in April. Bennett’s announcement comes after he was blocked Friday from entering the Wesley Bolin Building on the state fairgrounds property, where work on the audit continues long past its expected end date.

Senate leaders made the decision to block Bennett from entering Friday after learning Bennett secretly shared initial results from a new ballot count with an outside group, said Randy Pullen, another Senate representative and former chairman of the state GOP. Pullen said he will oversee activities until the work wraps up in the building this week.

I do not brim with confidence as to the ultimate result of the audit now that the audit-meisters have locked out the guy who was supposed to represent “transparency.” (Bennett is now talking openly about quitting.)

UPDATE: The Arizona Mirror reports, Ken Bennett plans to step down as Senate’s ‘audit’ liaison:

Former Arizona Secretary of State Ken Bennett said he plans to step down as the Senate’s liaison to the ballot review of the Maricopa County election amid growing tensions between auditors and Bennett. 

“I won’t pretend to be part of a process or pretend to be the liaison when I’m not,” Bennett told KFYI’s James T. Harris. “Right now, I’m the liaison in name only.” 

Last week, Bennett was blocked from entering the building where the self-styled audit was taking place after he shared data with outside critics of a ballot count that is said to have wrapped up. 

Senate President Karen Fann, R-Prescott, said she has not received a letter of resignation from Bennett yet.

* * *

Bennett said he plans to submit a resignation letter, and said he will only be a part of the final draft process if he has access to the source materials that make up the final report.

“This is the audit of the people of Arizona, not the Senate,” Bennett said.

Former Arizona Republican Party Chairman Randy Pullen has been tasked with many of Bennett’s previous duties, Bennett said in the interview.

Charlie continues:

But I do have faith that this whole extended farce is meant to be a self-perpetuating ratfcking mechanism not necessarily designed to come to any actual conclusion, but simply to create endless smoke and the illusion of fire.

Senate President Karen Fann and Senate Judiciary Chairman Warren Petersen demanded in the subpoena: Information about data breaches to the county’s election systems; Ballot envelopes with voter signatures, or images of the envelopes; Information about changes to the county’s voter records. Routers and network data, some of which the senators had requested in original subpoenas to the county this winter.

Ah, da routers! That’s the latest snipe in the hunt. It used to be da servers where the golden info was being stashed that would prove that the election was stolen. Now, with the blessing of El Caudilo del Mar-a-Lago, who came to Arizona last week to incite and agitate, and specifically mentioned da servers as a possible smoking gun, we will have endless agitation on the subject, which will keep the audit alive. What’s next? Post-it notes? Takeout menus? The election officials elementary school report cards?

UPDATE: KTAR News reports, Maricopa County weighs subpoena response, unlikely to turn over routers:

Maricopa County officials are weighing their response to a new subpoena from Arizona Senate Republican leaders over items related to the 2020 election, but it appears they will resist handing over network routers.

“We just received this late Monday,” Supervisor Bill Gates, one of four Republicans on the five-member board that governs the county, told KTAR News 92.3 FM’s Arizona’s Morning News in his first of two Tuesday morning interviews with the station.

“So we’ll convene as a body, will meet with our attorneys, go over this. If there are reasonable requests in here, of course we will turn those over.”

The supervisors will meet with legal advisers Wednesday behind closed doors in an executive session that starts at 9 a.m.

(No reporting yet.)

Monday’s Senate subpoena gave the county one week to produce certain items the Cyber Ninjas and other contractors hired to review the Phoenix-area general election say are needed to complete their final audit report.

“We will respond in some way,” Gates told KTAR News’ The Mike Broomhead Show.

[C]iting security concerns, the county has denied previous requests for the routers, which are used by multiple agencies, including the Maricopa County Sheriff’s Office.

Gates said he hasn’t changed his stance on the devices.

“If there’s a determination that turning over these routers is going to threaten the safety of law enforcement, and it would be turning over personal information, as one supervisor, that’s where I draw the line,” he told Broomhead.

* * *

Gates said it would be up to the Senate to initiate court proceedings over enforcement of the new subpoena.

“If they go back to court — I would never try and guess what a judge is going to rule — but I imagine the judge would say … ‘The ball’s in your court, you’ve got to determine how to get these documents and other materials from the board of supervisors,’” Gates told Broomhead.

Before the judge ruled in the Senate’s favor in February, the Senate failed in an effort to hold the county supervisors in contempt over their lack of compliance, which could have landed them behind bars.

Sen. Paul Boyer was the sole Republican to vote against the contempt resolution, joining the Senate’s 14 Democrats and creating a 15-15 tie.

Another contempt effort seems unlikely to succeed because not only is the Legislature out of session, but at least one other GOP senator, Michele Ugenti-Rita, has joined Boyer in publicly denouncing the audit proceedings.

“Sadly, it’s now become clear that the audit has been botched,” Ugenti-Rita, a 2022 candidate for Arizona secretary of state, tweeted over the weekend. “The total lack of competence by @FannKfann over the last 5 months has deprived the voters of Arizona a comprehensive accounting of the 2020 election.”

[M]aricopa County officials have consistently denounced the proceedings, questioning the methods, competence and motives of the auditors.

The Board of Supervisors previously authorized two audits by independent contractors who are certified by the National Institute for Standards and Technology and the U.S. Elections Assistance Commission.

Those audits found no problems, but state Senate Republicans subpoenaed the county for access to the election materials at the urging of supporters of Donald Trump who refuse to accept President Joe Biden’s narrow victory Maricopa County and statewide.

Last week, the county launched a website — JustTheFacts.Vote — to address questions and misconceptions about the 2020 election.

The DOJ needs to stop sitting on the sidelines and sending warning letters, which will simply be ignored until the DOJ actually takes legal action.