Veteran election hand Christopher Thomas oped in the Arizona Mirror:
Arizona’s faux audit of 2020 ballots fails to comply with the federal election records retention law, further undermining the integrity of the exercise with the possibility of illegality.
This law, which has been on the books since May 4, 1960, requires election officials to “retain and preserve for a period of 22 months” all election records, including ballots in any election for federal office, including the offices of president and vice president, presidential electors, and member of the U.S. Senate. (52 USC 20701, formerly 42 USC 1974). It seems no election official or counsel informed the Maricopa County Superior Court of the strict federal ballot retention requirements, and the judge’s opinion that the county had to turn over its ballots to the Senate offers no analysis of the federal law.
Retaining and preserving documents, described as maintaining the chain of custody of critical records, including ballots, is a required legal precursor to any federal or state law enforcement investigation. These include allegations about the conduct of an election, violations of federal election laws such as the Voting Rights Act, or voters’ constitutional rights. If documents are not securely maintained by election officials within a valid chain of custody, there is no basis to establish the genuineness of the records in question necessary for prosecution.
The U.S. Department of Justice details this requirement over seven pages in its Federal Prosecution of Election Offenses, noting that the “requirements of this federal law place the retention and safekeeping duties squarely on the shoulders of election officers.”
This chain of custody has now been broken in Maricopa County. The state Senate and its consultants have physical possession of nearly 2.1 million November election ballots, meaning that Arizona election officials are no longer “retaining and preserving” election ballots. After the Senate completes its work and the ballots have been handled by an untold number of individuals employed by the state Senate or its consultant, it will be impossible for anyone to confirm or refute the results.
Once the chain of custody is broken, the ballots are no longer genuine according to federal election law. Would it have been possible to conduct an audit as envisioned by the Arizona Senate and at the same time comply with federal records retention law? Yes, it is possible. Rather than breaking the official chain of custody, the Arizona election officials should have either made paper copies of the ballots or scanned the ballots for viewing electronically. …