U.S. Department of Justice
Civil Rights Division
May 5, 2021
VIA EMAIL
The Honorable Karen Fann
President, Arizona State Senate
1700 West Washington Street, Room 205
Phoenix, AZ 85007
Dear Senator Fann:
I write regarding issues arising under federal statutes enforced by the United
States Department of Justice that are related to the audit required by the Arizona State
Senate for the November 2020 federal general election in Maricopa County. News
reports indicate that the Senate subpoenaed ballots, elections systems, and election
materials from Maricopa County and required that they be turned over to private
contractors, led by a firm known as Cyber Ninjas.
The Department has reviewed available information, including news reports and
complaints regarding the procedures being used for this audit. The information of
which we are aware raises concerns regarding at least two issues of potential non-
compliance with federal laws enforced by the Department.
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
1
See, e.g., https://www.azfamily.com/news/investigations/cbs_5_investigates/security-lapses-plague-
arizona-senates-election-audit-at-state-fairgrounds/article_b499aee8-a3ed-11eb-8f94-bfc2918c6cc9.html;
https://www.azmirror.com/2021/04/23/experts-raise-concerns-about-processes-transparency-as-
election-audit-begins/; https://tucson.com/news/local/arizona-senate-issues-subpoena-demanding-
access-to-2-million-plus-ballots-cast/article_a426fc7b-60d8-5837-b244-17e5c2b2ddb4.html;
https://www.azmirror.com/2021/02/26/judge-sides-with-senate-says-maricopa-must-turn-over-
election-materials-for-audit/
2
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”).
2
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.
The second issue relates to the Cyber Ninjas’ statement of work for this audit.
3
Among other things, the statement of work indicates that the contractor has been
working “with a number of individuals” to “identify voter registrations that did not
make sense, and then knock on doors to confirm if valid voters actually lived at the
stated address.” Statement of Work at 2.1. The statement of work also indicates that
the contractor will “select a minimum of three precincts” in Maricopa County “with a
high number of anomalies” in order “to conduct an audit of voting history” and that
voters may be contacted through acombination of phone calls and physical
canvassing” to “collect information of whether the individual voted in the election” in
November 2020. Statement of Work at 5.1. This description of the proposed work of
the audit raises concerns regarding potential intimidation of voters. The Department
enforces a number of federal statutes that prohibit intimidation of persons for voting or
attempting to vote. For example, Section 11(b) of the Voting Rights Act provides that
No person, whether acting under color of law or otherwise, shall intimidate, threaten,
or coerce, or attempt to intimidate, threaten, or coerce any person for voting or
attempting to vote, or intimidate, threaten, or coerce, or attempt to intimidate, threaten,
or coerce any person for urging or aiding any person to vote or attempt to vote…” 52
2
See https://www.justice.gov/criminal/file/1029066/download
3
See https://www.washingtonpost.com/context/cyber-ninjas-statement-of-work/2013a82d-a2cf-48be-
8e9f-a26bfd5143e5/
3
U.S.C. § 10307(b). 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. Such investigative
efforts can have a significant intimidating effect on qualified voters that can deter them
from seeking to vote in the future.
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.
Sincerely,
Pamela S. Karlan
Principal Deputy Assistant Attorney General
Civil Rights Division
cc: Glenn McCormick, Acting United States Attorney for the District of Arizona
Mark Brnovich, Arizona Attorney General
Katie Hobbs, Arizona Secretary of State
Stephen Richer, Maricopa County Recorder