Arizona audit ignores federal law on election records

Arizona’s faux audit of 2020 ballots fails to comply with the federal election records retention law, further undermining the integrity of the exercise with the possibility of illegality.

This law, which has been on the books since May 4, 1960, requires election officials to “retain and preserve for a period of 22 months” all election records, including ballots in any election for federal office, including the offices of president and vice president, presidential electors, and member of the U.S. Senate. (52 USC 20701, formerly 42 USC 1974). It seems no election official or counsel informed the Maricopa County Superior Court of the strict federal ballot retention requirements, and the judge’s opinion that the county had to turn over its ballots to the Senate offers no analysis of the federal law.

Retaining and preserving documents, described as maintaining the chain of custody of critical records, including ballots, is a required legal precursor to any federal or state law enforcement investigation. These include allegations about the conduct of an election, violations of federal election laws such as the Voting Rights Act, or voters’ constitutional rights. If documents are not securely maintained by election officials within a valid chain of custody, there is no basis to establish the genuineness of the records in question necessary for prosecution.

The U.S. Department of Justice details this requirement over seven pages in its Federal Prosecution of Election Offenses, noting that the “requirements of this federal law place the retention and safekeeping duties squarely on the shoulders of election officers.”

This chain of custody has now been broken in Maricopa County. The state Senate and its consultants have physical possession of nearly 2.1 million November election ballots, meaning that Arizona election officials are no longer “retaining and preserving” election ballots. After the Senate completes its work and the ballots have been handled by an untold number of individuals employed by the state Senate or its consultant, it will be impossible for anyone to confirm or refute the results.

Once the chain of custody is broken, the ballots are no longer genuine according to federal election law. Would it have been possible to conduct an audit as envisioned by the Arizona Senate and at the same time comply with federal records retention law? Yes, it is possible. Rather than breaking the official chain of custody, the Arizona election officials should have either made paper copies of the ballots or scanned the ballots for viewing electronically. 

If viewing the original ballots was deemed critical to the Senate, arrangements could have been made with election officials to have their staff available, at a cost to the Senate, to handle the ballots, allowing Senate consultants to view each ballot and record the votes, but not to touch the ballots. Generally, any recount in the normal course of an election is conducted in this manner; candidates and their representatives are never allowed to handle any election documents or ballots.

Should the county refuse to participate, state courts may have to resolve the authority of the Senate’s subpoena with the federal requirement to maintain integrity of the ballots. The county may not have the choice to refuse inspection of the ballots.

Michigan has created such a process. When I was serving as Michigan’s director of elections in 2009, the Michigan Attorney General’s Office, in close consultation with the Department of Justice, issued an opinion setting parameters to make election ballots available for public inspection under Michigan’s Freedom of Information Act, consistent with the federal election records retention statute.

Michigan election officials now make ballots available without breaking the chain of custody, while still complying with open records transparency requirements. It can be done. Detailed procedures are provided to local election officials instructing them on how to allow public inspection of ballots without permitting any handling of ballots by third parties – in other words, maintaining the chain of custody.

With DOJ now engaged in the Arizona “audit” by seeking compliance with federal election records retention law, proper parameters may emerge to protect the integrity of election ballots. If Arizona’s flawed “audit” is taken on the road to other states, clear ‘rules of the road’ set by DOJ’s intervention will avoid the current fiasco, protect election ballots and establish reasonable processes for inspecting ballots.