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Former DOJ lawyer urges Arizona Senate: Resist ‘non-existent federal authority’ over election audit

His election integrity group says DOJ "exaggerates" and mischaracterizes federal law, hides its own track record in court.

Published: May 21, 2021 4:02pm

Updated: May 24, 2021 5:35pm

The Justice Department's Civil Rights Division is not moving to shut down the Arizona Senate's audit of Maricopa County's 2020 general election — yet.

A former lawyer in the division's Voting Section wants to keep it that way, urging Senate President Karen Fann to resist the "non-existent federal authority" asserted by Principal Deputy Assistant Attorney General Pamela Karlan earlier this month.

"Conducting an audit of a past election does not violate the Voting Rights Act or any other federal election law," J. Christian Adams wrote May 7 as president and general counsel of the Public Interest Legal Foundation, an election integrity group. (PILF didn't post the letter until May 17.)

"This is largely saber rattling in my opinion," Adams told Just the News May 24. "Whether not Arizona capitulates I cannot predict. Considering that most states usually do, it was not unexpected they would rattle."

The Supreme Court in 2013 threw out the Justice Department's "pre-clearance" requirement for state voting law changes, and it could greenlight further limitations in a briefed case about Arizona restrictions on provisional and absentee ballots.

Adams worked on voting rights cases in the George W. Bush administration. His letter to Fann is dripping with contempt for Karlan, whom he accuses of false claims about his own work and "partisan enforcement of the law."

This week, four House Republicans accused Karlan of trying to intimidate Fann and "cribbing" her talking points from "Leftist groups" that demanded federal intervention in the audit last month.

Florida's Matt Gaetz, Arizona's Andy Biggs and Paul Gosar, and Georgia's Marjorie Taylor Greene may have been spooked by Fann's disclosure that the Senate had previously shelved a plan opposed by Karlan: canvassing voters in precincts with a "high number of anomalies."

It's unclear what effect Karlan's warning letter has had on the audit, whether DOJ will take further action, or if the two sides have even communicated in the past two weeks.

Media contacts for the department and Fann's office have not responded to Just the News queries this week, including a request Friday for DOJ's response to the letter from House Republicans. 

Arizona Secretary of State Katie Hobbs, a Democrat, ramped up the pressure on Fann Thursday by urging Maricopa County to buy new voting machines because Fann's hired auditors, led by Cyber Ninjas, had allegedly compromised current machines. Such a purchase would likely cost the county millions.

Karlan's May 5 letter first floated the charge that state and local elections officials had lost "ultimate control" over ballots, elections systems and materials, and that contractors were not "adequately" safeguarding them during the audit.

The DOJ official also alleged that Cyber Ninjas' stated plan to "knock on doors" to verify valid voters lived there, and canvass areas with suspicious voting patterns, may constitute voter intimidation and could single out minority voters.

Fann's May 7 response scolded Karlan for singling out the Senate's hired contractors when Maricopa County itself also hired its own to handle "the very materials at issue in the audit."

The Senate president laid out the high security protocols at the audit site, which are personally overseen by former Secretary of State Ken Bennett and livestreamed 24 hours a day. She's not aware of "any significant security breach" since ballots were delivered.

But Fann said the planned voter canvass had been put off before Karlan's letter and would not be carried out unless deemed necessary to the audit. Canvassers would not target voters or precincts by race or other protected categories, wear anything that could be confused for law enforcement, or imply that voters were under investigation and must answer questions.

Adams' letter to Fann on behalf of the Public Interest Legal Foundation warned her that Karlan is not "engaging in a normal exercise of federal power under federal voting law." 

The DOJ official has "refused to correct" verifiably false scholarship from 2009 that claimed the Bush administration failed to bring any Voting Rights Act cases to protect racial minorities in five of its eight years. Adams pointed to his own writing refuting Karlan's claims.

Karlan not only ignored an Arizona court that upheld the legislative subpoenas to Maricopa County, but also "exaggerates" Justice Department authority over states by mischaracterizing a federal law that is "investigatory in nature."

In the "entire history of the Civil Rights Division," DOJ has never investigated an election audit "because its past leadership has understood it has no legal authority to do so," Adams wrote. 

Karlan's invocation of Section 11(b) of the Voting Rights Act is "absurd and implausible" because it would classify intimidation as retroactive against voters who have "long since voted," he said.

DOJ has performed poorly in court when it tried to bring Section 11(b) claims for much worse alleged conduct, including when "armed and uniformed" members of the New Black Panther Party "stalked a polling place," the lawyer said.

In an email to Just the News, Adams emphasized there was "no chance" of an 11(b) claim from DOJ. "You can’t dismiss a lawsuit against the New Black Panthers and expect an audit to credibly violate 11b."

He's also skeptical that a court would find election records are at risk, as Karlan claimed. "If they were to dig in and file something regarding the 22 month [federal] obligation to retain records, I suspect they would have a difficult time because the state is the ultimate custodian of the records and no obligation to keep records has been violated," he wrote.

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