Department Of Justice Threatens To Sue To Keep 2020 Election Chaos – The Federalist

Yesterday, the U.S. Department of Justice issued two guidance documents purportedly to ensure states fully comply with federal laws regarding election. Those documents, however, really represent the Biden administrations latest attempt to squelch investigations into potential voting irregularities, silence critics of the 2020 election, and cement forever the free-for-all COVID voting procedures implemented last voting cycle.

Wednesdays guidance came in the form of two documents entitled, respectively, Federal Law Constraints on Post-Election Audits and Guidance Concerning Federal Statutes Affecting Methods of Voting. In the DOJs guidance on post-election audits, the Biden administration began with its familiar refrain that the November 3rd election was the most secure in American history, and that notwithstanding automatic recounts or canvasses, there was no evidence of either wrongdoing or mistakes that casts any doubt on the outcome of the national election results.

Yet, as the DOJ put it, there has since been an unusual second round of examinations by states looking at certain ballots, election records, and election systems used to conduct elections in 2020. Then, with a not-so-veiled threat, the Biden administration rattled off the federal constraints, which are enforced by the Department of Justice, on these audits.

Among other laws, the federal guidance on post-election audits highlighted Section 301 of the Civil Rights Act of 1960 that requires state and local election officials to retain and preserve all records relating to any act requisite to voting for twenty-two months after the covered election. This mandate, the DOJ explained, means that election records must be retained either physically by election officials themselves, or under their direct administrative supervision, the latter of which requires election officials to have physical access to the records, according to the DOJ.

While not singled out by name, the detail contained in its guidance statements suggest the DOJ has in its sights the Arizona Republicans leading the probe into Maricopa County voting. Just Monday, the Republican-led Arizona Senate served another subpoena on officials in Maricopa County, seeking its routers and other information necessary for the legislature to complete its audit.

The DOJs guidance will likely provide the Maricopa County Board of Supervisors, which has resisted attempts by the state Senate to obtain the equipment and other data, an excuse to keep a close hold on the information. The guidance from the Biden administration, however, seems also to seek to scare off state officials from pursing such investigation, as seen by the DOJs reference to the criminal penalties that attach to willful violations of the Civil Rights Act.

The DOJ referenced criminal penalties again later in its guidance statement when discussing federal laws that prohibit the intimidation of voters. Then, after providing some examples of non-physical intimidation, the Biden administration suggests that work apparently planned as part of the Arizona audit qualifies as intimidation.

There have been reports, with respect to some of the post-2020 ballot examinations, of proposals to contact individuals face to face to see whether the individuals were qualified voters who had actually voted, the DOJ wrote, citing a Cyber Ninjas Statement of Work. Cyber Ninjas is the Florida-based company hired by the Arizona Senate to conduct the audit. It reportedly had proposed using a combination of phone calls and physical canvassing to collect information on voters in three urban precincts.

The Biden administration claims this sort of activity raises concerns regarding potential intimidation of voters, especially when such investigative efforts are directed, or are perceived to be directed, at minority voters or minority communities. States that authorize or conduct audits must ensure that the way those reviews are conducted has neither the purpose nor the effect of dissuading qualified citizens from participating in the electoral process, the DOJ continues, before warning that if they do not, the Department will act to ensure that all eligible citizens feel safe in exercising their right to register and cast a ballot in future elections.

The DOJs closer seems a sure signal that it intends to shut down any real analysis of voting in Arizona because it claims that investigative efforts that are merely perceived to be directed at minority communities qualify as intimidation under federal law.

Arizona is not the DOJs only target, however, as the second guidance document issued yesterday shows. Rather, in Guidance Concerning Federal Statutes Affecting Methods of Voting, the Biden administration, while hiding behind a litany of legal citations and legalese, exposes its intent to target any state that tightens voting procedures from the pandemic period.

After noting favorably the record turnout seen in 2020, stemming from the increased use of vote by mail and early voting, the DOJ explained that since then, some States have responded by permanently adopting their COVID-19 modifications; by contrast, other States have barred continued use of those practices or have imposed additional restrictions on voting by mail or early voting.

While one would think that returning to pre-COVID voting procedures would pose no legal problemafter all, if a voting rule was valid before COVID, why would it be illegal nowthe Biden Department of Justice sees things differently.

The Departments enforcement policy does not consider a jurisdictions re-adoption of prior voting laws or procedures to be presumptively lawful, the guidance document reads. Rather, the Department will review a jurisdictions changes in voting laws or procedures for compliance with all federal laws regarding elections, as the facts and circumstances warrant.

In other words: Red states, prepare to be sued.

The DOJ already targeted Georgia last month with litigation under the Voters Right Act, claiming Georgias mainstream regulations of the time, place, and manner of elections result in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color. At the time the Biden administration filed suit against Georgia, the allegations against the state were pretty insane, but the entire case became a burning dumpster after the Supreme Court issued its decision in Brnovich v. DNC, shortly after the DOJ filed the case.

In Brnovich, the Supreme Court upheld Arizonas in-precinct voting requirement and ban on ballot harvesting against a Voting Rights Act challenge. In doing so, the high court delineated several guideposts to address whether a voting regulation abridges the right of citizens to vote on account of race, including the size of the burden; the degree to which the voting rule departed from the standard in 1982 when Congress amended [the Voting Rights Act]; the size of the disparity of the rule on minorities; the opportunities provided by the states entire voting system; and the strength of the states interests in the law.

While yesterdays guidance does not explicitly conflict with the courts holding in Brnovich, that the Biden administration stressed in its summary that the Voting Right Acts demand that election systems be equally open to voters of all races reaches rules involving the availability of vote by mail, deadlines, application and ballot formalities, or drop boxes for returning ballots, suggests the DOJ intends to push more frivolous lawsuits, like the one filed against Georgia.

At least in the Georgia case, though, the DOJ did not have the benefit of the Supreme Courts decision in Brnovich. Should the Biden administration execute on the not-so-subtle threats conveyed in Wednesdays guidance, it will be doing so with full knowledge that the voting-integrity laws passed by Republican-controlled states fully comply with the Voting Rights Act.

Unfortunately, the Biden administration and the Democratic Party have decided that they score a victory just by pretending Republicans seek to disenfranchise voters of color and by portraying voting-integrity laws as Jim Crow 2.0, whether they win in court (or success in passing H.R. 1). Here, the left is playing with fire, because our country is too divided to withstand many more elections where half the populace believes the election was rigged.

That reality represents the clear and present dangernot Arizonas audit or any of the other complaints put forth by the Biden administration in yesterdays guidelines.

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and adjunct instructor at the college of business at the University of Notre Dame.The views expressed here are those of Cleveland in her private capacity.

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Department Of Justice Threatens To Sue To Keep 2020 Election Chaos - The Federalist