DOJ Intervention in Maricopa County Audit Lacks Constitutional Authority: Experts

May 18, 2021 Updated: May 18, 2021

A Department of Justice (DOJ) official with a lingering ethics problem is on tenuous constitutional ground in questioning the audit of 2020 presidential election returns for Arizona’s largest county, according to legal experts.

“Election officials targeted by the Department of Justice need to realize they are dealing with partisans who will twist the law for the sake of political power,” J. Christian Adams told The Epoch Times on May 18.

Adams, a former DOJ Civil Rights Division attorney, who is now the president of the Public Interest Legal Foundation (PILF), was referring to a May 5 letter from Principal Deputy Assistant Attorney General Pamela Karlan to Arizona state Senate President Karen Fann.

Karlan told Fann that, based on news reports and complaints her department received from unnamed individuals, DOJ officials are concerned about “at least two issues of potential non-compliance with federal laws” in the audit, which was ordered earlier this year by the state Senate and is now counting returns.

“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,” Karlan wrote to Fann concerning the first of the two issues.

The second issue focused on the work-plan of the private contractor retained by the Arizona Senate for the audit to go to addresses of alleged voters to confirm their legitimacy.

“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,” Karlan told Fann.

The audit was ordered due to continuing questions raised by Arizona supporters of former President Donald Trump and others on voting processes used in Maricopa County, the state’s largest jurisdiction last November.

President Joe Biden narrowly carried the county and the state with 49.4 percent of the votes, compared to 49.1 percent for Trump. Karlan, a former Stanford University law professor and member of Facebook’s oversight board that hears appeals from individuals banned by the social media, testified in favor of impeachment in Trump’s 2019 House impeachment. Biden appointed Karan to DOJ earlier this year.

Although less than 20 percent of the votes have been audited, audit officials said in a May 13 tweet that they have encountered multiple problems, including “no chain of custody for ballots, ballot batch counts don’t match with actual ballots, deleted databases, cut security seals, ongoing non-compliance with subpoenas and more.”

Maricopa County Board of Supervisors Chairman Jack Sellers, a Republican, called those allegations “false and ill-informed” and added that “the claim that our employees deleted election files and destroyed evidence is outrageous, completely baseless and beneath the dignity of the Arizona Senate.”

Regardless of the merits of this disagreement, Karlan’s objections give legal grounds for opposing the audit.

Adams told Fann in a May 7 letter that Karlan is “an ideological extremist with a long history of partisan enforcement of civil rights laws, as well as rank scholarly dishonesty … [who] wants you to believe the Justice Department is engaging in a normal exercise of federal power under federal voting law. It is not.”

Adams was referring to a 2009 Duke University Law School journal article in which Karlan claimed no Voting Rights Act cases were filed by DOJ in five of the eight years President George W. Bush was in office.

“This false scholarship was even brought to the attention of Congress in testimony provided to the House of Representatives. Editors of the Duke University publication said it was incumbent on Karlan to retract her false scholarship, something she has not done,” Adams told Fann.

The DOJ Office of Media Relations did not respond to multiple requests from The Epoch Times for comment from Karlan regarding the veracity of her 2009 claim and other issues raised by Adams regarding the Maricopa audit.

Karlan’s legal basis for her questions to Fann is flawed, Adams wrote, because “conducting an audit of a past election does not violate the Voting Rights Act or any other federal election law. In fact, the Justice Department has never—in the entire history of the existence of the Civil Rights Division—interfered in or investigated an election audit because its past leadership has understood it has no legal authority to do so.”

Karlan’s concerns about voter intimidation are also misplaced, Adams said, because the relevant section of the law isn’t applicable to the Maricopa audit.

“Karlan’s inference that Section 11(b) of the Voting Rights Act is implicated is also wrong. Section 11(b) prohibits the direct intimidation, threat or coercion of voters.

“Here, the voters have long since voted—the act of voting was months ago. It is not possible that Section11(b) can be implicated by the audit. Karlan is offering an absurd and implausible interpretation of Section 11(b) of the Voting Rights Act—one intended to intimidate you—that no court could possibly uphold as correct.”

Constitutional law authority Hans von Spakovsky, who is also a DOJ veteran and a member of PILF’s board of directors, told The Epoch Times, he doesn’t expect DOJ to seek a Temporary Restraining Order or otherwise seek an injunctive court action to stop the audit.

“If they were thinking rationally, they would not, since they have no basis under federal law to do so,” von Spakovsky said, but he cautioned that if Karlan “thinks she could get away with it and use a lawsuit to stop the legislature from doing this by out-lawyering and out-resourcing them, I have no doubt she would go ahead with it.”

Congressional correspondent Mark Tapscott may be reached at mark.tapscott@epochtimes.nyc