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DOJ Issues ‘Guidance’ Docs for States on Federal Election Laws

July 28, 2021 by Dan McCue
(AP Photo/Mark Lennihan)

WASHINGTON — The Justice Department released two guidance documents Wednesday intended to ensure states fully comply with federal election laws, specifically those statutes pertaining to methods of voting and constraints on post-election audits.

“The right of all eligible citizens to vote is the central pillar of our democracy, and the Justice Department will use all of the authorities at its disposal to zealously guard that right,” Attorney General Merrick Garland said in a written statement. 

“The guidance … describes certain federal laws that help ensure free, fair, and secure elections. Where violations of such laws occur, the Justice Department will not hesitate to act,” he added.   

The first guidance document, entitled “Guidance Concerning Federal Statutes Affecting Methods of Voting,” provides guidance regarding how eligible citizens cast their ballots. 

It addresses efforts by some states to permanently adopt their COVID-19 pandemic voting modifications, and by other states to bar continued use of those practices, or to impose additional restrictions on voting by mail or early voting. 

In addition, the guidance discusses federal statutes the department enforces related to voting by mail, absentee voting and voting in person.

But perhaps the most noteworthy passage is this: “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.”

The second guidance document, entitled “Federal Law Constraints on Post-Election Audits,” provides information on how states must comply with federal law when preserving and retaining election records and the criminal penalties associated with the willful failure to comply with those requirements.

Looking back to the 2020 election, the guidance notes that in many jurisdictions, there were automatic recounts or canvasses pursuant to state law due to the closeness of the election results. 

“None of those state law recounts produced evidence of either wrongdoing or mistakes that casts any doubt on the outcome of the national election results,” the guidance says. “In recent months, in a number of jurisdictions around the United States, an unusual second round of

examinations have been conducted or proposed. These examinations would look at certain ballots, election records, and election systems used to conduct elections in 2020. 

“These examinations, sometimes referred to as ‘audits,’ are governed, in the first instance, by state law. In some circumstances, the proposed examinations may comply with state law; in others, they will not. But regardless of the relevant state law, federal law imposes additional constraints with which every jurisdiction must comply,” the guidance says.

While acknowledging that election audits are “exceedingly rare,” the Justice Department nevertheless said it is “concerned that some jurisdictions conducting them may be using, or proposing to use, procedures that risk violating the Civil Rights Act.”

“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,” the guidance says. 

“Where election records leave the control of election officials, the systems for maintaining the security, integrity and chain of custody of those records can easily be broken. Moreover, where election records are no longer under the control of elections officials, this can lead to a significant risk of the records being lost, stolen, altered, compromised, or destroyed,” it continues. “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.”

This guidance document also details the statutes that prohibit the intimidation of voters and the department’s commitment to act if any person engages in actions that violate the law.

“The Department of Justice is committed to protecting the right to vote for all Americans and ensuring states are complying with federal voting laws,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. 

“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,” she said.

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