U.S. Department of Justice

Federal Law Constraints
on Post-Election “Audits”
Published July 28, 2021

U.S. Department of Justice
The U.S. Department of Justice is committed to ensuring full compliance
with all federal laws regarding elections. This includes those provisions
of federal law that govern the retention and preservation of election
records or that prohibit intimidation of, or interference with, any
person’s right to vote or to serve as an election ofﬁcial.
The Department is also committed to ensuring that American elections are secure and reﬂect the choices
made on the ballots cast by eligible citizens. “The November 3rd election was the most secure in
American history,” according to a Joint Statement issued by federal and state ofﬁcials and released by
the federal Cybersecurity & Infrastructure Security Agency. In many jurisdictions, there were automatic
recounts or canvasses pursuant to state law due to the closeness of the election results. None of those
state law recounts produced evidence of either wrongdoing or mistakes that casts any doubt on the
outcome of the national election results.

In recent months, in a number of jurisdictions around the United States, an unusual second round of
examinations have been conducted or proposed. These examinations would look at certain ballots,
election records, and election systems used to conduct elections in 2020. These examinations,
sometimes referred to as “audits,” are governed, in the ﬁrst instance, by state law. In some
circumstances, the proposed examinations may comply with state law; in others, they will not. But
regardless of the relevant state law, federal law imposes additional constraints with which every
jurisdiction must comply. This document provides information about those federal constraints, which are
enforced by the Department of Justice.

1 | Federal Law Constraints on Post-Election “Audits”

U.S. Department of Justice
Constraints Imposed by the Civil Rights Act of 1960

The Civil Rights Act of 1960, now codiﬁed at 52 U.S.C. §§ 20701-20706, governs certain “[f]ederal
election records.” Section 301 of the Act requires state and local election ofﬁcials to “retain and
preserve” all records relating to any “act requisite to voting” for twenty-two months after the conduct
of “any general, special, or primary election” at which citizens vote for “President, Vice President,
presidential elector, Member of the Senate, [or] Member of the House of Representatives,” 52 U.S.C. §
20701. The materials covered by Section 301 extend beyond “papers” to include other “records.”
Jurisdictions must therefore also retain and preserve records created in digital or electronic form.

The ultimate purpose of the Civil Rights Act’s preservation and retention requirements for federal
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) (citing H.R. Rep. 956, 86th Cong., 1st Sess. 7
(1959)), aff’d sub nom. Dinkens v. Attorney General, 285 F.2d 430 (5th Cir. 1961) (per curiam). The Act
protects the right to vote by ensuring that federal elections records remain available in a form that
allows for the Department to investigate and prosecute both civil and criminal elections matters under
federal law. The Federal Prosecution of Election Offenses, Eighth Edition 2017 explains 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.” Id. at 75. It provides that “all documents and records
that may be relevant to the detection or prosecution of federal civil rights or election crimes must be
maintained if the documents or records were generated in connection with an election that included
one or more federal candidates.” Id. at 78.

The Department interprets the Civil Rights Act to require that covered elections records “be retained
either physically by election ofﬁcials themselves, or under their direct administrative supervision.”
Federal Prosecution of Elections Offenses at 79. “This is because the document retention
requirements of this federal law place the retention and safekeeping duties squarely on the shoulders

2 | Federal Law Constraints on Post-Election “Audits”

U.S. Department of Justice
of election ofﬁcers.” Id. If a state or local election authority designates some other individual or
organization to take custody of the election records covered by Section 301, 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.

Therefore, if the original election ofﬁcial who has custody of records covered by the Act hands over
those election records to other ofﬁcials (for example, to legislators or other ofﬁceholders) or the ofﬁcial
turns over the records to private parties (such as companies that offer to conduct “forensic
examinations”), the Department interprets the Act to require 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. In other words, the
obligation to retain and preserve election records remains intact regardless of who has physical
possession of those records. Jurisdictions must ensure that if they conduct post-election ballot
examinations, they also continue to comply with the retention and preservation requirements of Section
301.

There are federal criminal penalties attached to willful failures to comply with the retention and
preservation requirements of the Civil Rights Act. First, Section 301 itself makes it a federal crime for
“[a]ny ofﬁcer of election” or “custodian” of election records to willfully fail to comply with the retention
and preservation requirements. 52 U.S.C. § 20701. Second, Section 302 provides that any “person,
whether or not an ofﬁcer of election or custodian, who willfully steals, destroys, conceals, mutilates, or
alters any record or paper” covered by Section 301’s retention and preservation requirement is subject
to federal criminal penalties. Id. § 20702. Violators of either section can face ﬁnes of up to $1000 and
imprisonment of up to one year for each violation.

Election audits are exceedingly rare. But the Department is concerned that some jurisdictions
conducting them may be using, or proposing to use, procedures that risk violating the Civil Rights Act.
The duty to retain and preserve election records necessarily requires that elections ofﬁcials maintain
the security and integrity of those records and their attendant chain of custody, so that a complete and

3 | Federal Law Constraints on Post-Election “Audits”

U.S. Department of Justice
uncompromised record of federal elections can be reliably accessed and used in federal law
enforcement matters. Where election records leave the control of elections ofﬁcials, the systems for
maintaining the security, integrity and chain of custody of those records can easily be broken. Moreover,
where elections records are no longer under the control of elections ofﬁcials, this can lead to a
signiﬁcant risk of the records being lost, stolen, altered, compromised, or destroyed. This risk is
exacerbated if the election records are given to private actors who have neither experience nor expertise
in handling such records and who are unfamiliar with the obligations imposed by federal law.

4 | Federal Law Constraints on Post-Election “Audits”

U.S. Department of Justice
Constraints Imposed by the Federal Laws Prohibiting Intimidation
Federal law prohibits intimidating voters or those attempting to vote. For example, Section 11(b) of the
Voting Rights Act of 1965 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 U.S.C. § 10307(b). Similarly,
Section 12 of the National Voter Registration Act of 1993 makes it illegal for any person, “including an
election ofﬁcial,” to “knowingly and willfully intimidate[], threaten[], or coerce[], or attempt to intimidate,
threaten, or coerce, any person for . . . registering to vote, or voting, or attempting to register or vote” in
any election for federal ofﬁce. Id. § 20511(1)(A). Likewise, Section 131 of the Civil Rights Act of 1957
provides that “[n]o person, whether acting under color of law or otherwise, shall intimidate, threaten,
coerce, or attempt to intimidate, threaten, or coerce any other person for the purpose of interfering with
the right of such other person to vote or to vote as he may choose, or of causing such other person to vote
for, or not to vote for, any candidate” for federal ofﬁce. 52 U.S.C. § 10101(b).

The Attorney General is authorized to ﬁle a civil action seeking preventative relief, including a temporary
or permanent injunction, against any person who engages in actions that violate these statutes. See 52
U.S.C. §§ 10308(d); 20510(a). And there are criminal penalties as well. See, e.g., id. § 10308(a); 18 U.S.C. §§
241, 242, 594; see generally Federal Prosecution of Election Offenses, at 33-38, 49-54, 56-58.

Judicial decisions have established that voter intimidation need not involve physical threats. In certain
contexts, suggesting to individuals that they will face adverse social or legal consequences from voting
can constitute an impermissible threat. Here are a few examples of the types of acts that may constitute
intimidation:

5 | Federal Law Constraints on Post-Election “Audits”

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▪

Sending a letter to foreign-born Latino registered voters warning them that “if they voted in
the upcoming election their personal information would be collected … and … could be
provided to organizations who are ‘against immigration’” was potentially intimidating. See
United States v. Nguyen, 673 F.3d 1259 (9th Cir. 2012).

▪

Having police ofﬁcers take down the license plate numbers of individuals attending voter
registration meetings contributed to intimidating prospective voters. See United States v.
McLeod, 385 F.2d 734 (5th Cir. 1967).

▪

Sending robocalls telling individuals that if they voted by mail, their personal information
would become part of a public database that could be used by police departments to track
down old warrants and credit card companies to collect outstanding debts could constitute
intimidation. See Nat’l Coal. on Black Civic Participation v. Wohl, 498 F. Supp. 3d 457 (S.D.N.Y.
2020).

▪

Linking individual voters to alleged illegalities in a way that might trigger harassment could
constitute intimidation. See League of United Latin Am. Citizens - Richmond Region Council
4614 v. Pub. Int. Legal Found., 2018 WL 3848404, at *4 (E.D. Va. Aug. 13, 2018).

▪

Conducting a “ballot security” program in which defendants stand near Native American
voters discussing Native Americans who had been prosecuted for illegally voting, follow
voters out of the polling places, and record their license plate numbers might constitute
intimidation. See Daschle v. Thune, No. 4:04 Civ. 04177 (D.S.D. Nov. 1, 2004).

See also United States v. North Carolina Republican Party, No. 5:92-cv-00161 (E.D.N.C. Feb. 27, 1992)
(approving a consent decree in a case where the United States alleged that it violated Section 11(b) to
send postcards to voters in predominantly African American precincts falsely claiming that voters were
required to have lived in the same precinct for thirty days prior to the election and stating that it is a
“federal crime to knowingly give false information about your name, residence or period of residence to
an election ofﬁcial”).

1

1 While voter intimidation need not involve physical threats, federal law of course prohibits using “force or threat of force” to intimidate or
interfere with, or attempt to intimidate or interfere with, any person’s “voting or qualifying to vote” or serving “as a poll watcher, or any legally
authorized election ofﬁcial, in any primary, special, or general election.” 18 U.S.C. § 245(b)(1)(A). The Deputy Attorney General recently issued
Guidance Regarding Threats Against Election Workers.

6 | Federal Law Constraints on Post-Election “Audits”

U.S. Department of Justice
There have been reports, with respect to some of the post-2020 ballot examinations, of proposals to
contact individuals face to face to see whether the individuals were qualiﬁed voters who had
actually voted. See, e.g., Cyber Ninjas Statement of Work ¶ 5.1 (proposing to select three precincts
in a large urban county to collect information from individuals through “a combination of phone calls
and physical canvassing”).

This sort of activity raises concerns regarding potential intimidation of voters. For example, when
such investigative efforts are directed, or are perceived to be directed, at minority voters or minority
communities, they can have a signiﬁcant intimidating effect on qualiﬁed voters that can deter them
from seeking to vote in the future. Jurisdictions that authorize or conduct audits must ensure that
the way those reviews are conducted has neither the purpose nor the effect of dissuading qualiﬁed
citizens from participating in the electoral process. If they do not, the Department will act to ensure
that all eligible citizens feel safe in exercising their right to register and cast a ballot in future
elections.

If jurisdictions have questions about the constraints federal law places on the kinds of post-election
audits they can conduct, they should contact the Voting Section of the Civil Rights Division. If
citizens believe a jurisdiction has violated the Civil Rights Act’s election record retention and
preservation requirements, or believe they have been subjected to intimidation, they can use the
Civil Rights Division's online complaint form to report their concerns or call (800) 253-3931.

7 | Federal Law Constraints on Post-Election “Audits”


Match Requirement for STOP Formula Grants
Match Requirement
By statute, a grant made under the STOP Formula Grant Program may not cover more than
75% of the total costs of the project(s) funded. This includes any amount used by the state for
administrative costs. (34 U.S.C. § 10446(f).) The costs of projects for victim services or tribes for
which there is an exception under 34 U.S.C. § 12291(b)(1) do not count toward the total costs of
the projects. State governments may satisfy this match requirement with either cash or in-kind
services and may require subgrantees, except victim service providers or tribes, to provide all or
part of the match.
The purpose of matching funds is to augment the amount of resources available to the project
from grant funds and to foster the dedication of state, local, and community resources to the
purposes of the project. The costs of activities counted as match must be directly related to the
project goals and objectives. For example, if half of an advocate's time is supported with grant
funds, that advocate must track all of his or her time to demonstrate that 50% of it was devoted
to the grant-funded project
•

•

Under the statute, the state as the direct recipient of program funds is required to meet
this match requirement. However, the state may use its discretion to require some or all
of its subgrantees to meet the match requirement in whole or in part (except victim
services providers or tribes). Although victim service providers cannot be required to
provide match, they can voluntarily do so. The state is also required to match amounts
used for administrative costs.
We encourage states to take into account the ability of subgrantees to match the Federal
funds in deciding whether and how much of the required match to pass on to
subgrantees.

Source of Match
The source of the 25% non-Federal portion of the project is governed by the DOJ Financial
Guide, 2 C.F.R. 200.306, 28 C.F.R. 90.18, and the STOP Program statute. The following
provisions apply to the match requirement:
•

•
•

Funds appropriated by the Congress for the activities of any agency of an Indian tribal
government or of the Bureau of Indian Affairs performing law enforcement functions on
any Indian lands may be used to provide the non-Federal share of the cost of programs
or projects funded under this grant program (34 U.S.C. § 10446(g)) provided that these
costs are program related.
In-kind match must be documented in the same manner as grant-funded activities.
Funds contributed from private sources or state and local governments may be a source
of match. For example, if the program receives cash donations or money from the United
Way, this may be used as a source of match. Such funds should be used for program
costs which may satisfy the match requirement.

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In-Kind Match
In-kind match may include donations of expendable equipment; office supplies; workshop or
education and training materials; work space; or the monetary value of time contributed by
professional and technical personnel and other skilled and unskilled labor, if the services provided
are an integral and necessary part of a funded project. The value placed on loaned equipment
may not exceed its fair rental value and the value placed on donated equipment is the fair market
value of the equipment at the time of the donation. The value placed on donated services must be
consistent with the rate of compensation paid for similar work in the organization or the labor
market. Fringe benefits may be included in the valuation. Volunteer services must be documented
and, to the extent feasible, supported by the same valuation methods used by the recipient
organization for its own employees. The value of donated space may not exceed the fair rental
value of comparable space, as established by an independent appraisal of comparable space and
facilities in a privately owned building in the same locality. The value for donated supplies shall be
reasonable and not exceed the fair market value at the time of the donation. The basis for
determining the value of personal services, materials, equipment, and space must be
documented.
Following are some specific examples of possible sources of match for this program: For the state:
• If the state provides office space for the project, the cost of utilities, insurance, security,
janitorial services and the like may be used as in-kind match to the extent they are not
being paid out of Federal funds (including through indirect costs). If the office space is
donated by an outside source, the rental value of the space also may be used as match.
• The salaries of any state employees that are working on grant-related purposes but are not
paid with grant funds may be used. For example, if the state is paying the STOP
administrator out of non-Federal funds, the administrator's salary may be used as match.
Also, if any of the administrator's support staff are paid with non-Federal funds (and are not
included in indirect costs charged to the grant), then those salaries also may be used as
match to the extent that the staff are working on the grant project. In addition, fringe
benefits of state employees working on the project may be used as match if they are not
covered by Federal funds.
• If the project has an advisory council, such as a group that meets to develop the state's
implementation plan, and the members are not compensated for their time, the time spent
by those members may be used as match. In addition, related meeting costs, such as
transportation costs and preparation time of the members, may be used as match to the
extent they are not covered by Federal funds. Any other volunteers involved in the project
also may be used as match.
• Other donated tangible goods that are used for the project, such as donated furniture, may
be used as match.
For subgrantees:
• If an entity other than the subgrantee donates office space free of charge to the
subgrantee for the project, the fair rental value of the space may be used as match. For
example, a police department may donate an office to house a victim advocate from a
domestic violence shelter. Similarly, the cost of utilities, insurance, security, janitorial
services and the like may be used as in-kind match to the extent they are not being paid
out of grant or other Federal funds. Programs also may receive short term donations of
space, such as a room to hold a meeting or a training event, which may be used as match.
• The salaries of any employees of the subgrantee that are working on grant-related
purposes but are not paid with grant funds may be used. For example, a hotline
coordinator at a shelter, a police officer or prosecutor working on a sexual assault unit, or
other employees could be used as match to the extent that they are not paid by Federal
funds.
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•

•

•

If the subgrantee has a board of directors or advisory board and the members are not
compensated for their time, the time spent by the council members may be used as match.
Any other volunteers involved in the project, such as trainers and speakers, pro bono
attorneys and other professionals, hotline volunteers, people volunteering to give public
presentations about the subgrantee or about violence against women, volunteers
facilitating support groups, and child care volunteers also may be used as match.
The reasonable value of other donated tangible goods that are used by the project may be
used as match. For example, a program may receive donations of used clothing, the
reasonable value of which may be used. A funded shelter may also solicit donations both
from individuals and from companies such as supermarkets of food and items such as
shampoo and toothpaste for use by victims, toys and other supplies such as diapers or
formula for victims' children, and supplies for the program itself such as furniture or
computers.
Subgrantees also may receive donations of services that can be used as match. For
example, a local printing company may agree to print some training materials at no cost to
the program. Other examples of donated services may include web space and services,
other computer services, legal services, translation services, telephone services and
accounting services for the program as well as psychological counseling, job training,
medical services, taxi and hotel vouchers, and child care services for victims. The services
could be provided by an individual volunteer or by a company.

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