Privatizing Election Auditing is a Dangerous Game

Keeping Arizona’s circus-like, fake audit from hitting the road in other battleground states may prove difficult as Trump loyalists pitch new sideshows in Georgia, Michigan, California, and New Hampshire. Local and state policymakers should think twice before diving in with unaccredited, partisan “auditors.”

The Justice Department is emerging as the critical backstop against these charades, which like in Arizona, have the potential to constitute illegal security breaches of 2020 election ballots.

In northern Michigan counties, enraged MAGA agitators continue the 2020 battle for ballot inspections. The attorney who injected the Cyber Ninjas into Antrim County’s elections promises free “forensic audits” to any other county in the state. So far, none has taken them up on the offer, but pressure is mounting.

According to the Department of Justice all ballots and other election records must “be retained either physically by election officials themselves, or under their direct administrative supervision.” It is the Justice Department’s duty to enforce the federal election records retention law.

The Justice Department should have insisted on Arizona election officials overseeing the security of the ballots. Arizona has thoroughly breached the 22-month federal retention period, throwing the chain of custody into question. The Justice Department, arriving late to the game in Arizona, curiously seems to accept the breach in federal law, which has placed Maricopa County’s election ballots in the hands of Cyber Ninjas, an Arizona State Senate contractor whose owner has a history of virulent election conspiracy advocacy. Court records reflect no discussion of the federal law during litigation over the State Senate subpoenas. Surely, with knowledge of the law, the judge could have accommodated both the Senate’s request to view ballots and the federal retention law requiring Maricopa County election officials to remain in control of the ballots.

The purpose of the federal law is to ensure records are admissible in federal (civil or criminal) legal proceedings. Perhaps more important, a clean chain of custody could prove essential to refuting fanciful and unhinged conclusions generated by highly partisan contractors. Already, the contractors in Arizona are making unsubstantiated, fantastical claims that records have been destroyed or are missing, and then walking back those pronouncements much more quietly.

Another unintended consequence of Arizona’s fiasco is a large, wasteful expense for Maricopa County. Last week Secretary of State Katie Hobbs informed the county that delivery of ballot tabulation equipment to the Ninjas “constitutes a cyber incident of critical infrastructure”. In consultation with the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, Secretary Hobbs noted the break in the chain of custody jeopardizes the integrity and use of that equipment in any future election. Decommissioning and replacing equipment is a huge monetary cost for such a flawed endeavor.

When the Ninjas come calling, state election officials and the Justice Department must stop any local governments from handing over control of election ballots and equipment. It is plainly illegal to do so. The Justice Department must immediately issue a formal letter to state election officials stating the retention law requirements and penalties for violating them. Then, the Department must halt, through federal court injunction, any effort to remove ballots, voting equipment, or election records from election officials’ possession. State officials must enforce their state retention laws and alert the Justice Department at the first sign of any local jurisdiction considering an extralegal ballot inspection.

In any post-election inspection of ballots, election officials must retain control. Those seeking access may inspect ballots without handling them. Only authorized election staff may touch the ballots, providing real security to the ballots and maintaining the requisite chain of custody.

Under most state record transparency laws, election officials may assess fees to cover their expenses in fulfilling the inspection request. The fees cover all staff time, copying supplies and other expenses. While not preventing ballot inspection, the fees involved, paid in advance, put a premium on well-organized, thoughtful ballot inspection schemes. The haphazard, start and stop disorganization characterizing Arizona attempt at replicating what real election officials do would be financially untenable.

Essentially, the ballots would be inspected in same manner as in a recount where only election officials handle ballots, allowing partisan observers to note the votes cast on each ballot. Alternatively, a request to scan or photocopy the ballots could be fulfilled at cost to the requestor.

Enforcement of federal and state retention laws will spare citizens of other states from the Arizona Spectacle.

Christopher Thomas is a fellow with BPC’s Elections Project. Thomas retired from the Michigan Department of State after 40 years of election administration service, which included 36 years as Michigan’s Director of Elections. Thomas worked for Democratic and Republican Secretaries of State