By Heritage Foundation
In-depth
financial and accounting audits are a standard practice (and legal requirement)
for all publicly traded companies and most privately held businesses, for
nonprofits from schools to churches to other charities, and for financial
institutions themselves. Audits are a way of life in America for entities and
enterprises, large and small.
Yet
audits of election agencies and election procedures and systems are almost
nonexistent in our public elections except for very limited audits in limited
instances. The very concept of comprehensive election audits has been met with
criticism and unjustified opposition by some election officials—and even the
current U.S. Department of Justice.1
Federal
Law Constraints on Post-Election “Audits,” U.S. Dep’t. of Just., (July 28,
2021), https://www.justice.gov/opa/press-release/file/1417796/download.
For
the same reasons that auditing is a ubiquitous requirement in the business
world at large, so should audits be a customary requirement in the election
world. All federal, state, and local elections should be thoroughly audited
after every election, and auditors should adopt standards and follow best
practices that provide all stakeholders—candidates, election and other
government officials, political parties, the media, and voters—with
confirmation and confidence that: The election was administered honestly,
accurately, and fairly in full compliance with all applicable laws and
regulations;
Only
eligible U.S. citizens participated in the election and only individuals duly
registered under state law were allowed to vote; No fraud, errors, or omissions
occurred and, if they did occur, they have been identified and steps have been
taken to rectify them; All election and voting equipment and computers
functioned properly as designed to correctly tabulate and report the results
without any unauthorized interference or tampering; and All results have been
verified and reconciled, i.e., the number of ballots cast match the number of
voters who participated in the election, all ballots are accounted for, and
reports from election officials reflect the correct numbers.
Auditing
Standards for Elections
Business
audits are conducted according to Generally Accepted Auditing Standards (GAAS)
that are “systematic guidelines used by auditors when conducting audits on
companies’ financial records.” They “ensure the accuracy, consistency, and
verifiability of auditors’ actions and reports.”2
Alicia
Tuovila, Generally Accepted Auditing Standards (GAAS), Investopedia (Nov. 11,
2020),
https://www.investopedia.com/terms/g/gaas.asp#:~:text=Generally%20accepted%20auditing%20standards%20(GAAS)%20are%20a%20set%20of%20systematic,of%20auditors’%20actions%20and%20reports.
GAAS
were created by the Auditing Standards Board of the American Institute of
Certified Public Accountants.3
ASB
Auditing Standards Board, AICPA,
https://us.aicpa.org/research/standards/auditattest/asb.
GAAS
Standards. There are 10 standards for business audits that, with only
slight modification, could provide a guideline for establishing the standards
for election audits. Under GAAS for business audits, the auditor must:
Have
adequate technical training and proficiency;
Maintain
his or her independence in all aspects of the audit;
Exercise
due professional care and judgment;
Adequately
plan the work and properly supervise all subordinates;
Obtain
a sufficient understanding of the entity and its environment (including its
internal controls) to assess the risk of material misstatement of financial
statements due to error or fraud and design the nature, timing, and extent of
further audit procedures;
Obtain
sufficient audit evidence to afford a reasonable basis for an opinion about the
financial statements being audited;
State
in the audit report whether it was conducted in accordance with generally
accepted accounting principles;
Report
on those circumstances in which such principles were not followed;
State
in the auditing report whether the information disclosures in the financial
statement are not reasonably adequate; and
Express
an opinion in the auditing report over the financial statements, taken as a
whole, or explain why an opinion cannot be given.4
Tuovila,
Generally Accepted Auditing Standards, supra note 2.
No
such GAAS-type standards have been created for post-election audits.
GAES
Standards. However, using GAAS as a baseline, the Generally Accepted
Election Standards (GAES) for election auditors could be that such auditors
must:
Have
adequate technical training and proficiency to be familiar with all aspects of
the voter registration and election process in the state;
Maintain
their independence in all aspects of the audit;
Exercise
due professional care and judgment;
Adequately
plan the work and properly supervise all subordinates and individuals who are
members of the auditing team;
Have
a sufficient understanding of the election office being audited and its
environment (including its internal controls and procedures) to assess the risk
of material problems in its administration due to error or fraud and design the
nature, timing, and extent of further audit procedures needed to investigate
such problems;
Obtain
sufficient audit evidence to afford a reasonable basis for an opinion about the
accuracy of the election process;
State
in the audit report whether the audit and the election were conducted in
accordance with all state and federal legal requirements and auditing
procedures established by the state;
Report
on those circumstances in which such requirements were not followed;
State
in the auditing report whether the information disclosures in the audit are not
reasonably adequate to provide an opinion on the accuracy of the election or
any aspects of the auditing review; and
Express
an opinion in the auditing report over the voter registration, voting,
tabulation, and reporting system as a whole, or explain why an opinion cannot
be given.
The
Extent of an Audit
There
is also general confusion and disagreement regarding what should be done in a
post-election audit. The U.S. Election Assistance Commission (EAC), the federal
agency created by the Help America Vote Act in 2002 to “serve as a national
clearinghouse and resource” for information on the administration of elections,5U.S.C. § 20922. says that post-election audits
“are conducted to ensure that election voting tabulators are operating
accurately and complying with regulations.”6
Post-Election
Audits, U.S. Election Assistance Comm’n (Oct. 23, 2020), at 1.
The
EAC has provided grants in the past to states to conduct audits.7
See
EAC Logic and Accuracy and Post-Election Audit Grants, U.S. Election Assistance
Comm’n, https://www.eac.gov/election-officials/post-election-audits-recounts.
However,
all that amounts to is a hand recount of ballots and a check of the accuracy of
voting machines scanners and tabulators to ensure that the total number of
ballots in the hand recount matches the machine count from Election Day. Of
course, as the expression goes, “garbage in, garbage out.” If ballots cast by
ineligible voters or fraudsters are fed into a scanner or tabulator, a properly
functioning machine would still count that ballot, even though a proper audit
would reveal that the ballot should never have been fed into the machine in the
first place.
A
post-election tabulation audit or recount that merely determines whether a
scanner or tabulator accurately counted the ballots that were fed into it is
not the only type of audit that should be conducted, although such checks are
“the most prevalent…and just about the only audits called for by statute” under
state election laws.8
Amanda
Zoch, The What, Why and How of Election Audits, Nat’l Conf. of State
Legislatures (Aug. 5, 2021),
https://www.ncsl.org/research/elections-and-campaigns/the-what-why-and-how-of-election-audits-magazine2021.aspx.
As
the CalTech/MIT Voting Technology Project points out, such vote tabulation
audits “have been occurring in the United States ever since California mandated
post-election audits in the 1960s.”9
Election
Auditing: Key Issue and Perspectives, Summary Report, CalTech/MIT Voting Tech.
Project (Dec. 7–8, 2018), p. vi.
According
to the National Conference of State Legislatures, 32 states and the District of
Columbia mandate such limited post-election audits, which “require that a fixed
percent of ballots, voting districts, or voting machines be audited” by hand
counting the ballots.10
Zoch,
The What, Why and How of Election Audits, supra note 8.
A
risk-limiting audit has the same goal but uses “statistics to determine the
number of ballots to be reviewed based on how close the race was.”11Id.
The
assumption is that if the hand count matches the machine count in whatever
percentage of precincts are audited, then all of the votes were correctly
tabulated. Risk-limited audits based on statistics are no substitute for the
type of actual audit that jurisdictions should employ for all elections.
There
are some jurisdictions where “ballot images, rather than the ballots
themselves, are used for auditing.” These images are created when the paper
ballots are scanned at the polling place. Instead of hand counting the actual
ballots, this allows “the use of independent software, not connected to the
voting system, to retabulate” the votes cast in the election.12
Post-Election
Audits, U.S. Election Assistance Comm’n, supra note 6, at 6.
The
problem with such a limited audit is demonstrated by a simple example based on
proven cases of fraud listed in the Heritage Election Fraud Database, such as
individuals who illegally register and vote in two different states.13
Election
Fraud Database, The Heritage Foundation (2022),
https://www.heritage.org/voterfraud.
If
1,000 votes are cast in a local election and the winning candidate wins the
election with 501 votes to his opponent’s 449 votes, a hand recount may confirm
that the voting scanners and equipment correctly tabulated the 1,000 votes cast
in that race—but it will not confirm whether the 1,000 votes were cast
by eligible voters.
Only
an audit that includes checking the procedures used by election officials prior
to the election to verify the accuracy of the voter registration list itself to
find voters who should not be registered because they actually reside in
another state will prevent that from occurring. In such a close election—and we
constantly have close elections in this country—only a small number of voters
engaging in such illegal behavior could make a difference in the outcome of the
election.
Forensic
and Other Audits
The
term “forensic audit” has also been used frequently since the 2020 presidential
election as a means of verifying or refuting the issues raised in connection
with that election, but again, that is a relatively new term in the election
area. It seems to have different meanings to different election officials,
academics, citizens, and other interested parties. It has been defined as “the
use of statistical methods to determine whether the results of an election
accurately reflect the intentions of the electors,” but:
[it]
may also—or instead—focus on suggesting why election returns are as they are,
pointing out anomalies, revealing possible fraudulent manipulations or
intimidations, explaining outcomes as due to routine strategic behavior or
identifying areas that should be investigated further using more richly
informed hands-on methods.14
Walter
R. Mebane, Jr., Election Forensics Beyond Audits, Summary Report, CalTech/MIT
Voting Tech. Project (Dec. 7–8, 2018), at 21.
Other
types of election audits that are now being discussed are simply examinations
of only certain parts of our voter registration and voting system. They
include:
Equipment
audits that ensure voting and tabulation equipment and software conforms
to the voluntary performance standards established by the U.S. Election
Assistance Commission15
Voluntary
Voting System Guidelines, U.S. Election Assistance Comm’n,
https://www.eac.gov/voting-equipment/voluntary-voting-system-guidelines.
and
the mandatory standards established by some states;16
See,
e.g.,General Information on Texas Voting System Certification Process, Tex.
Sec’y of State, https://www.sos.state.tx.us/elections/laws/generalinfo.shtml.
Process
or procedure audits that verify whether administrative procedures were
followed such as the procedure for a registered voter to check in at a polling
place before being given a ballot; and
Legal
compliance audits that examine whether applicable federal and state
election laws were complied with by election officials and election staff in
polling places and other voting and tabulation centers.
However,
none of these audits conducted in isolation provides the type of complete
information needed to confirm that the entire voter registration, voting,
tabulation, and reporting system worked as it was designed and intended:
providing a transparent, fully observable process that complies with applicable
law in which only eligible citizens have the ability to register, vote in the
election, and have their votes correctly tabulated and reported without their
ballots being voided or negated by fraud, errors, or other problems.
The
type of audit that is needed in the election arena is one that
combines all of the different types of partial audits into a complete
analysis of the entire registration and voting system. As pointed out by the
CalTech Voting Technology Project, “it is important for states and localities
to engage in comprehensive programs of auditing and quality assurance
for every aspect of election management.”17
Summary
Report, supra note 9, at v (emphasis added).
What
Should Be Reviewed and Audited
Election
audits should accomplish two objectives:
The
first is to ensure that the election was properly conducted, that election
technologies performed as expected, and that the correct winners were declared.
The second is to convince the public of the first thing. Convincing the
public that the election was properly conducted and that the correct
winners were declared is a core activity of establishing legitimacy in a
democracy.18
Id.
at iv (emphasis in original).
Convincing
the public that the election was properly conducted is especially important
given that polling shows that faith in the election system is at a dangerous
low point. Only 20 percent of Americans are “very confident” in the integrity
of our elections, while another 39 percent are “somewhat confident.” This means
that less than half of the public has confidence in the integrity of the
election process.19
Xander
Landen, Only 20 Percent of Americans Say They’re “Very Confident” in U.S.
Election Integrity: Poll, Newsweek (Jan. 6, 2022),
https://www.newsweek.com/only-20-percent-americans-say-theyre-very-confident-us-election-integrity-poll-1666411.
These
two objectives cannot be achieved with partial, piecemeal, or limited audits.
Instead, accomplishing those objectives requires
a comprehensive election audit that investigates and reviews all of
the procedures and actions applied and taken in the election.
Mechanical
Failure: New Hampshire. It seems obvious that an audit report that finds
errors and mistakes should not simply be ignored; state law should mandate that
it be used by election officials to correct those problems to ensure they do
not happen in future elections. A good example of that is the audit that was
conducted in Wyndham, New Hampshire, in 2021 after a hand recount of the
election for the Rockingham County District state representative seat showed a
discrepancy of 499 votes from the machine tabulation on Election Day.20
Harri
Hursti, Mark Lindeman, and Philip B. Stark, New Hampshire SB 43 Forensic Audit,
Dep’t of Just. (July 2021),
https://www.doj.nh.gov/sb43/documents/20210713-sb43-forensic-audit-report.pdf.
The
audit found that the discrepancy was caused by a folding machine leased by the
town to fold absentee ballots for insertion into envelopes being sent to
voters. Instead of folding the ballots along the lines between the names of
candidates as it was supposed to, it folded many of the ballots through the
candidates’ names. The computer scanners that were reading the completed
ballots when they were sent back by the voters mistakenly read the folds “as
marked ovals” or votes for that candidate.21 Id.
at 3.
Folds
through the candidates’ names were also sometime interpreted as an “overvote”
when the scanner detected the filled in oval next to the name of another
candidate on the same ballot in the same race, voiding the vote in that race
entirely. The actual ballot count did not change the outcome of the election,
but without the audit, election officials in Wyndham would have had no idea
that their voting equipment was malfunctioning. Unless it was corrected, that
malfunction could have made the difference in a future election. It was only
because of the audit that the problem was discovered.
Intentional
Misconduct. State law should mandate that an audit report that finds
intentional misconduct must be referred to the appropriate local, state, or
federal law enforcement agency to investigate and prosecute any such misconduct
that violates election laws, such as findings that voters were registered in
more than one state and voted illegally in both states. State law should
further require that local election officials provide law enforcement with all
voter and election files relevant to such intentional misconduct.
Comprehensive
Audits. As noted, the seventh GAAS for business auditors is that they
state whether the audit was conducted in accordance with “generally accepted
accounting principles” for the review of financial statements. The equivalent
of such “accounting principles” for the review of election procedures in a
comprehensive election audit, Generally Accepted Election Auditing Principles,
could include investigating, reviewing, and determining whether:
Election
officials complied with all state and federal laws and regulations governing
the registration and election process.
Voter
registration list maintenance actions were taken prior to the
election to ensure only eligible individuals were registered to vote, including
verifying that registrants were:
Citizens;
Legal
residents of the precinct where they voted, living in an actual residence, and
not registered and voting in another location in the state or any other state;
Not
deceased;
The
minimum age required to vote;
Not
disqualified due to criminal convictions or other disqualifications;
Qualified
under all other state law requirements for legal registration; and
Were
removed from the registration list prior to the election if they were not
eligible.
The
data sources used for voter registration list maintenance actions were
sufficient to provide confirmation that those on the voter registration list
were eligible to vote, that any problems uncovered were resolved, and that
ineligible individuals were removed from the list and did not cast votes in the
elections.
Hand
recounts of ballots agreed with the machine counts made on Election Day.
The
number of total ballots cast equals the number of individuals that registration
records show cast ballots in the election.
The
number of ballots cast in each precinct equals the number of individuals who
registration records show as having cast ballots in that precinct.
The
ballot totals from the precincts match the results published by the election
office and any anomalies have been investigated.
The
processing of absentee ballots was done in strict accordance with all
applicable state laws and regulations, including any requirements for
identification documentation, witness signatures or notarization, voter
signature comparison, and receipt of completed absentee ballots prior to the
state law deadline.
The
chain of custody rules and regulations for all ballots, voting equipment, and
drop boxes were followed by election officials and documented to confirm
compliance.
The
voting equipment and tabulation/vote counting machines and systems were
subjected to logic and accuracy testing prior to Election Day and the start of
any early voting period, as well as immediately after the election, and were
not connected to the Internet at any time during the voting or tabulation
period.
No
unauthorized or unapproved software was added to any voting equipment prior to,
or after, the election and there is full and complete documentation of all
authorized changes made, including identification and contact information for
the individuals making those changes.
Computer
system logs show no malware, unexplained changes, or other problems in the
voting and tabulation equipment and all such equipment and software was
certified for use in the state under applicable certification processes. There
are independent laboratories22
See,
e.g., Pro V&V, http://www.provandv.com/services/; and SLI Compliance,
https://slicompliance.com/services/voting-system-certification-testing/electronic-voting-system-forensic-analysis-and-audit/.
accredited
by the U.S. Election Assistance Commission that provide inspection and
assessment services of voting equipment that has been certified under the
voluntary federal voting system standards established by the EAC that could be
used by audit teams, as well as a Quality Monitoring Program established by the
EAC to cover certified voting equipment.23
Voluntary
Voting Systems Guidelines, supra note 15. The U.S. Election Assistance
Commission has implemented the “Quality Monitoring Program” that is “designed
to ensure that voting systems certified by EAC are the same systems sold by
manufacturers” and includes “fielded voting system review, anomaly reporting,
and manufacturing site visits.” See Quality Monitoring Program, U.S. Election
Assistance Comm’n,
https://www.eac.gov/voting-equipment/quality-monitring-program. For an example
of its work, see EAC Approves Measure to Address Missouri Voting Machine
Anomaly, Press Release, U.S. Election Assistance Comm’n (May 20, 2022),
https://www.eac.gov/news/2022/05/20/eac-approves-measure-address-missouri-voting-machine-anomaly.
Observers
authorized by state law were given full and meaningful access to observe
in-person voting in polling locations on Election Day and during early voting,
the processing of absentee ballots, the operation of all tabulation systems and
other voting equipment, and the fulfillment of all legal requirements such as
signature-matching on absentee ballots, as well as the processing of voter
registration and absentee ballot applications prior to Election Day.
All
complaints by voters, observers, and election officials were investigated,
documented, and properly resolved and disciplinary action was taken against any
election officials engaging in misbehavior or unlawful actions.
All
disputed, challenged, rejected, and cured ballots were investigated,
documented, and properly resolved in compliance with applicable state law.
All
provisional ballots cast by voters were investigated, documented, and properly
resolved in compliance with both federal law24
Section
302 of the Help America Vote Act of 2002, 52 U.S.C. § 21082.
and
applicable state law and legal requirements were not waived by election
officials to circumvent the state’s voter registration deadline.
All
contracts with third-party vendors are made available to the public and were
reviewed to verify their compliance with state law and equal treatment of all
voters.
A
financial audit25
The
Inspector General of the U.S. Election Assistance Commission conducts audits of
how states have used federal grants provided to them by the EAC through federal
appropriations. Thus, some aspects of the financial spending of election
officials and election agencies is already being audited. See EAC Office of the
Inspector General Announces Audits of HAVA Grant Funds in Eight States, Press
Release, U.S. Election Assistance Comm’n (July 16, 2021),
https://www.eac.gov/news/2021/07/16/eac-office-inspector-general-announces-audits-hava-grant-funds-eight-states.
confirms
that all election office appropriations, grants, and disbursements were
properly spent on activities related to registration, voting, and
administration in the year prior to the date of the general election.26
For
other suggestions on different types of post-election audits, see Post-Election
Audits: Verifying Election Integrity, (June 22, 2012),
https://election-integrity.info/Post_Election_Audits.pdf.
Who
Should Be Audited
Clearly,
the best course of action would be for every county election jurisdiction (or
townships in states like New Hampshire, where elections are conducted by towns)
to be audited after every election. However, such a procedure may be impossible
in some larger states due to the cost, lack of resources, and lack of
experienced personnel.
One
potential solution to this problem would be to audit every election
jurisdiction in a state on a random, rotating basis that is not announced
until after the election. That rotation system should ensure that
every election jurisdiction is audited at least once every five years and that
no election jurisdiction believes that just because it was audited, it will not
be audited again for five years. A rotating audit system based on a three-year
cycle would, of course, be better, but again that will depend on the size of
the state, the number of election jurisdictions, and the resources and
personnel available to conduct such audits.
When
it comes to voter registrations and ballots cast in an election, auditors could
choose to audit a statistically significant random sample of registration and
ballots cast in each precinct within an election jurisdiction or they might opt
to audit all registrations and ballots cast within a randomly selected number
of precincts within an election jurisdiction.
Who
Should Conduct Audits
Corporate
audits are conducted by independent, outside experts to avoid having corporate
personnel cover up mistakes, errors, intentional misconduct, and other
problems. Individuals within the corporations being audited obviously have a
non-waivable conflict of interest that prevents them from serving as
independent auditors.
The
same rule should apply to election audits because the same conflict of interest
exists. Local election officials who may be embarrassed or lose their jobs if
mistakes and problems are detected that were caused by their mismanagement of
the voter registration and voting system, as well as the equipment they chose
to use, should not be the individuals conducting an audit of how they
or the equipment they selected performed in the election.
The
problem is that while there are numerous accounting firms that are qualified to
conduct business audits, there are currently almost no experienced entities
with the requisite knowledge of election law and experience in election
administration to competently conduct a comprehensive election audit. Creating
a mandatory system for conducting election audits nationwide will likely give
rise to a new market for skilled, experienced, and independent election
auditors.
Until
that happens, audits should be conducted by teams consisting of local election
officials from different jurisdictions than the one being audited.
State election officials, state auditors or inspectors general, and experienced
outside experts should be utilized, and those efforts should be coordinated by
the secretary of state or a state election board with final authority over
elections in the state.27
While
there are many academics who write about election issues, there are very few
who have actual experience in election administration and the knowledge needed
to participate in a comprehensive audit. The author served on a county election
board in Georgia for five years and a similar board in Virginia for three
years. Both boards administered the voter registration and election process in
the largest counties in each state.
Designated
state legislators on a bipartisan basis could also be part of such teams—but
only as observers—to be able to report back to their legislatures about the
conduct and findings of the audit. A representative of the U.S. Election
Assistance Commission could also be allowed in as an observer. Permitting
bipartisan groups of legislators or EAC officials to serve as observers need
not be a mandatory requirement, but it might be helpful.
Local
election officials in the jurisdiction being audited should, of course,
participate in the audit, but only to the extent needed to explain their
procedures to the members of the audit team, provide any information,
materials, or background needed, and answer any questions. They should have no
participation in the analysis or preparation of the audit team’s report.
Any
state law that is passed to implement the auditing process should include a
provision requiring that local election officials cooperate with, and provide
all records sought by, the auditing team. The chief election official or agency
of the state, whether it is a secretary of state or a state election board,
should have the authority to impose administrative fines on an election
official who refuses to comply with this requirement—as well as the power to
terminate such election official for cause. States should also consider
criminal penalties for election officials who willfully refuse to cooperate
with an audit.
Third-Party
Cooperation. This cooperation mandate should also apply to all third-party
contractors that provide equipment or services to election officials, and all
contracts entered into with such contractors should include a provision
requiring such cooperation—with the imposition of liquidated damages for each
day that a contractor refuses to provide information or documentation sought by
the audit team. Such a provision might have prevented the problem that arose
when Maricopa County election officials and the county’s voting equipment
supplier, Dominion Voting Systems, refused to cooperate with the audit
implemented by the state senate in Arizona after the 2020 election.
As
state Arizona Senate President Karen Fann said at the time, “the noncompliance
by the County and Dominion continues to delay the results and breeds distrust.”28
Jen
Fifield and Mary Jo Pitzi, Maricopa County and Dominion Won’t Comply with New
Subpoenas Issued by Arizona Senate, Arizona Central (Aug. 2, 2021),
https://www.azcentral.com/story/news/politics/elections/2021/08/02/maricopa-co-and-dominion-face-monday-deadline-ariz-senate-election-subpoenas/5434136001/.
States
need to implement audit enforcement provisions to prevent such misbehavior,
including a requirement that any voting equipment and software company seeking
to have its products certified for use in a state agree, as part of that
certification process, to cooperate fully with any audits or lose their
accreditation in the state.
Observers. Every
aspect of an audit—just like every aspect of the election process—should allow
observers from the political parties and candidates to monitor the auditors and
the entire auditing process. Transparency is fundamental to achieving the
second objective of an audit—convincing the public that the election was
fairly, effectively, and honestly conducted.
Legal
Issues
One
issue that should not deter the implementation of comprehensive auditing
standards and procedures by state governments is a threat by the U.S.
Department of Justice—which has no jurisdiction over such issues despite its
erroneous claims to the contrary.
Department
of Justice (DOJ) Threats. On May 5, 2021, Pamela S. Karlan, the Principal
Deputy Assistant Attorney General of the Civil Rights Division of the Justice
Department (a political appointee), sent a letter to Arizona Senator Fann
warning her that the audit being conducted of the 2020 election in Maricopa
County potentially violated the federal law requiring preservation of election
records or could be considered “intimidation” of voters under Section 11(b) of
the Voting Rights Act, the latter being a criminal offense.29
Pamela
S. Carlin, Principal Deputy Assistant Attorney General, Letter to Karen Fann,
May 5, 2021, https://www.justice.gov/crt/case-document/file/1424586/download.
52 U.S.C. § 2070 requires preservation of “all records and papers” relating to
a federal election for 22 months after Election Day.
This
was followed by a “guidance” document published on July 28, 2021, that made the
same false assertions.30
Federal
Law Constraints on Post-Election “Audits,”supra note 1.
As
the Public Interest Legal Foundation (PILF),31
The
author is a member of the board of the Public Interest Legal Foundation. He
served as Counsel to the Assistant Attorney General for Civil Rights at the
U.S. Justice Department from 2002 to 2005.
which
is staffed with former Justice Department lawyers, correctly concluded in a
published response, the DOJ’s letter and guidance overstated the Justice
Department’s power and understated the state’s authority over its election.
They were written, in PILF’s views, by “an ideological extremist with a long
history of partisan enforcement of civil rights laws as well as rank scholarly
dishonesty.”32
Response
to United States Department of Justice July 28, 2021 Guidance, Pub. Interest
Legal Found. (Aug. 26, 2021), https://publicinterestlegal.org/wp-content/uploads/2021/08/Letter-Dated-August-26-2021.pdf.
According
to PILF, the Justice Department’s position rested “on tenuous legal grounds”
and was designed to deter Arizona from auditing the election rather than
“provide a sober description of federal power”33Id.
simply
because the political appointees within the Biden Justice Department did not
want any questions raised about the legitimacy of the 2020 election.
Conducting
an audit that examines existing election records does not violate the federal
law requiring preservation of such records, contrary to the assertions of the
Justice Department, which “exaggerated the reach of” the statute.34Id.
Audits
do not destroy records, they simply examine and review the existing records.
Audits
and the Voting Rights Act. Furthermore, contrary to the DOJ’s claims,
Section 11(b) of the Voting Rights Act is also not implicated by an audit.35 U.S.C.
§ 10307(b).
Section
11(b) prohibits directly intimidating or threatening an individual for “voting
or attempting to vote.” It requires “real, objective intimidation, not
imaginary or attenuated intimidation.”36
Response
to United States Department of Justice, supra note 32.
When
an audit is conducted after the election, it is an “absurd and
implausible interpretation of Section 11(b)” to claim that conducting an audit
or a recount could possibly “intimidate” or “threaten” voters who have already
voted.
Prior
to the issuance of this dishonest guidance, the Justice Department
had never asserted that it had any authority of any kind over, or had
ever investigated, the recount, recanvas, or audit of a prior election. State
officials should disregard this guidance and recognize it for what it is: the
partisan abuse of the Justice Department’s law enforcement authority under
federal voting rights laws for political purposes.
Conclusion
Conducting
audits of U.S. elections should be a routine practice, the same way they are a
routine practice in the business community and other fields of our society.
Such audits are necessary to ensure the proper conduct of the entire election
system, from the registration of eligible voters to the casting of ballots to
the tabulation and reporting of the election results. Such a requirement should
be imposed and enforced by state law and state officials to guarantee not only
the honesty and effectiveness of the election process, but to assure the
public, candidates, political parties, and the media that they can be confident
in the security and integrity of our elections.
Hans
A. von Spakovsky is Manager for the Election Law Reform Initiative and
Senior Legal Fellow in the Edwin J. Meese III Center for Legal and Judicial
Studies at The Heritage Foundation. He is a former county election official in
two different states.
https://heritage.org/election-integrity/report/best-practices-and-standards-election-audits
Comments
State Legislators need to read
the article above and do what they can to tighten election integrity before
November 2024 to ensure that illegals don’t vote. Most election officials in
big US counties are Democrats and so are the Lawyers and Judges. A study using 2013 data
found that only 11% of law school professors were Republicans, compared
to 82%
who were Democrats. The don’t want to follow the US Constitution, but prefer to
follow case finding precedent to perpetuate errors.
They believed Stalin when he
said the only people you need to control are the people who count the ballots.
I would like for all candidates to be required to put their political party on
the ballots.
If we apply AI to the task, we
should be able to verify most of what we need to certify voters as legitimate
if the proper databases are networked and secure.
Norb Leahy, Dunwoody GA Tea Party Leader
