Justice Department shares concerns with Arizona Senate audit, recount

By Ben Giles
Published: Wednesday, May 5, 2021 - 7:09pm
Updated: Wednesday, February 9, 2022 - 1:51pm

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Mark Henle/Pool Photo
Workers fill the floor of the Veterans Memorial Coliseum, the site of the Maricopa County ballot audit, on April 27, 2021.

In a letter to the president of the Arizona Senate, an attorney with the U.S. Department of Justice expressed concerns that an audit and recount of the November election in Maricopa County may be out of compliance with federal laws.

Pamela Karlan, the principal deputy assistant attorney general with the Justice Department’s Civil Rights Division, wrote Wednesday that federal officials see two issues with the election review ordered by Republican-led state Senate. 

Ballots, voting systems and other election materials are no longer in the custody of election officials — a possible violation of federal law, which requires state and local election workers to store and safeguard federal voting records. 

The nearly 2.1 million ballots cast in Maricopa County include races for federal offices, such as the presidential and U.S. Senate races being recounted.

Those ballots and other election materials were subpoenaed by Republicans in the Arizona Senate, first in December and again in January. After a judge upheld the Senate’s subpoena authority, Senate President Karen Fann (R-Prescott) turned the election materials over to private firms led by Cyber Ninjas, a Florida-based cybersecurity company critics say is unqualified to review the 2020 election.

“We have a concern that Maricopa County election records, which are required by federal law to be retained and preserved, are no longer under the ultimate control of elections officials, are not being adequately safeguarded by contractors, and are at risk of damage or loss,” Karlan wrote.

Ballot audit
Ben Giles/KJZZ
The audit site at Veterans Memorial Coliseum in Phoenix on April 22, 2021.

Plans for door-to-door canvassing may also violate federal laws aimed at preventing voter intimidation. 

The Senate’s contract with Cyber Ninjas states the firms plan to “identify voter registrations that did not make sense, and then knock on doors to confirm if valid voters actually lived at the state address.” Auditors also plan to ask voters about their voting history to determine “whether the individual voted in the [November 2020] election.”

“Past experience with similar investigative efforts around the country has raised concerns that they can be directed at minority voters, which potentially can implicate the anti-intimidation prohibitions of the Voting Rights Act,” Karlan wrote. “Such investigative efforts can have a significant intimidating effect on qualified voters that can deter them from seeking to vote in the future.”

Karlan asked Fann to provide details on what steps the Arizona Senate will take to ensure those federal laws aren’t violated.

A spokesman for Fann did not immediately respond to a request for comment.

The letter followed a request by the Brennan Center for Justice and voting rights organizations, which wrote to DOJ on April 29 and requested they send federal monitors to observe the audit and recount process.

The recount effort has fallen far behind schedule, and it’s not clear when their work will be complete. Ken Bennett, a liaison for the election review appointed by Fann, previously told reporters their work would be finished by May 14 — when firms are contractually obligated to vacate Veterans Memorial Coliseum, where the recount and audit are being conducted.

Bennett now says there’s no deadline for recount to be completed, and that the firms involved will take their time to “get it done right.”

That work will likely have to finish somewhere other than the Coliseum. A state official told the Arizona Republic that it’s not feasible to extend the Senate’s rental agreement.