WASHINGTON, D.C. — In a statement on Wednesday, the Department of Justice released new guidance regarding post-election audits and voting methods “to ensure states fully comply with federal laws regarding elections.” The guidance outlines federal protections for voters in each situation and promises that the Justice Department will act if violations occur.
The first guidance document, concerning voting methods, outlines that all states are required by federal law to provide a minimum amount of accessible voting methods and vote-by-mail options for certain voters. The guidance also reminds state governments that the Voting Rights Act bans any election administration provisions “intended to impede voters on account of race from casting a ballot or will result in an election system that is not equally open to voters on account of race.”
The second guidance document walks through the federal requirements surrounding election audits. The Civil Rights Act of 1960 requires states to preserve election-related documents for 22 months after an election, protecting voters by retaining the paper trail after an election and making it available for the Department of Justice to investigate any concerning conduct. This requirement remains in place even if election officials pass records over to lawmakers or private firms in the course of conducting an audit. “In other words, the obligation to retain and preserve election records remains intact regardless of who has physical possession of those records,” the guidance states. This clarification is especially noteworthy in light of a recent decision in a case regarding the Arizona “audit” of 2020 election results, where a state court rejected Republicans’ argument that private firms they hired to conduct the audit were not subject to the same document retention and publication requirements as the state government.