Mysterium Tremendum

The Cyber Ninjas are going to walk themselves merrily into a buzzsaw. https://t.co/BEDdaQdREW

— Charles P. Pierce (@CharlesPPierce) May 6, 2021

I'd seen a reference to this provision (federal law requires preservation of ballots for 22 months following an election) on Twitter, and consequently thought little of it.

Turns out it's real; and turns out we have a real DOJ again.

In a letter to GOP Senate President Karen Fann, the head of the Justice Department’s Civil Rights Division said the Senate’s farming out of 2.1 million ballots from the state’s most populous county to a contractor may run afoul of federal law requiring ballots to remain in the control of elections officials for 22 months. And Principal Deputy Assistant Attorney General Pamela S. Karlan said that the Senate contractor’s plans to directly contact voters could amount to illegal voter intimidation.

And it seems the "Cyber Ninjas" mean to contact voters personally, because, you know, "facts."  Which, as we will see, could be a violation of the Civil Rights Act of 1960.

Arizona SOS Katie Hobbs sent the "auditors" a six-page letter and threatened to take them to court.  The auditors have their own response:

AZ @SecretaryHobbs continues to make baseless claimes about this forensic audit but has never led an election audit in her entire career. The audit continues!

— Maricopa Arizona Audit (@ArizonaAudit) May 5, 2021

Which is true, but the "Cyber Ninjas" were hired and are being overseen by Ken Bennet, AZ SOS from 2009 to 2015.  He's never overseen an audit, either, because under AZ law audits are conducted by counties; never by the SOS.

It's going to be a good thing we have a functioning DOJ again.  It's also going to make a difference.  Yes, political Twitter is very afraid of the effects on democracy this "audit" is going to have.  But political Twitter is never happy unless it has something to fret about.  Trump's "Big Lie" got him nowhere except self-exile to Florida, and the collapse of the GOP like a souffle dropped after it left the oven.  That collapse has been inevitable since Phyllis Schafly rose from obscurity to defeat the ERA.

And if the pandemic has proven anything, and if the insurrection at the Capital proved anything, it's that the vast majority of Americans appreciate and abide by the rule of law.  I've yet to see a picture of the "crowds" outside the arena where the AZ recount is occurring that shows more than 10 people.  The recount itself is moving painfully slowly because they don't have nearly enough people to accomplish the task.  And this is just the first part of what the AZ GOP senators set in motion:

The ballot hand count is one of the three pieces of the audit. The two others are a "forensic audit" of the ballot-counting machines and a canvass of voters in specific precincts. The audit is expected to be complete come time in the summer.

The recount itself is going to deep into the summer, at this rate.  The canvass of voters?  Who's gonna do that?  Two guys in a car?  And the audit of the ballot-counting machines?

I think the DOJ is going to step in before that.  Because I don't think the DOJ is playing:

The first issue relates to a number of reports suggesting that the ballots, elections systems, and election materials that are the subject of the Maricopa County audit are no longer under the ultimate control of state and local elections officials, are not being adequately safeguarded by contractors at an insecure facility, and are at risk of being lost, stolen, altered, compromised or destroyed.1 Federal law creates a duty to safeguard and preserve federal election records. The Department is charged with enforcement of provisions of the Civil Rights Act of 1960, 52 U.S.C. §§ 20701-20706. This statute requires state and local election officials to maintain, for twenty-two months after the conduct of an election for federal office, “all records and papers” relating to any “act requisite to voting in such election...” Id. at § 20701. The purpose of these federal preservation and retention requirements for elections records is to “secure a more effective protection of the right to vote.” State of Ala. ex rel. Gallion v. Rogers, 187 F. Supp. 848, 853 (M.D. Ala. 1960), aff’d sub nom. Dinkens v. Attorney General, 285 F.2d 430 (5th Cir. 1961) (per curiam), citing H.R. Rep. 956, 86th Cong., 1st Sess. 7 (1959); see also Federal Prosecution of Election Offenses, Eighth Edition 2017 at 75 (noting that “[t]he detection, investigation, and proof of election crimes – and in many instances Voting Rights Act violations – often depend[s] on documentation generated during the voter registration, voting, tabulation, and election certification processes”).

If the state designates some other custodian for such election records, then the Civil Rights Act provides that the “duty to retain and preserve any record or paper so deposited shall devolve upon such custodian.” 52 U.S.C. § 20701. The Department interprets the Act to require that “covered election documentation be retained either physically by election officials themselves, or under their direct administrative supervision.” See Federal Prosecution of Election Offenses at 79. In addition, if the state places such records in the custody of other officials, then the Department views the Act as requiring that “administrative procedures be in place giving election officers ultimate management authority over the retention and security of those election records, including the right to physically access” such records. Id. 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.

Why do I think they are serious?  For one thing, the law being cited there is the Civil Rights Act of 1960.  That alone is a notice that there's a new sheriff in town.  For another, this letter to the President of the Arizona Senate isn't just a "Remember us?" letter.  It's a warning that there's more to come:

We would appreciate your response to the concerns described herein, including advising us of the steps that the Arizona Senate will take to ensure that violations of federal law do not occur.

That's not a request.  That's a warning.

Yes, the conspiracy crazies are going to insist antifa and Venezuela thwarted the efforts of God-fearing Americans to save us from flouride in our drinking water, but just because it's on Twitter doesn't mean the whole country trembles.  As Charlie Pierce put it: "when this DOJ gets 'concerned,' the ground starts to shake a bit."

That's not the ground the rest of us stand on.  It's just been a while since we've seen that.  We don't know to expect it anymore.  But we'll remember.