How do federal laws and committee reports currently govern and fund post‑election audits in the United States?
Executive summary
Federal law does not create a uniform federal post‑election audit regime; instead it sets constraints on how audits may be conducted — principally preservation and chain‑of‑custody requirements and protections against voter intimidation — while leaving design, frequency and funding largely to states and localities [1] [2] [3]. Federal agencies and expert groups have issued guidance and principles (Justice Department, CISA, EAC, Bipartisan Policy Center) and Congress has funded election infrastructure grants in past cycles (via HAVA/EAC), but there is no single federal statute that mandates or fully finances state post‑election audits [4] [2] [5] [6].
1. Federal legal constraints: preservation, custody and voter protections
The Department of Justice’s guidance makes clear that federal statutes constrain post‑election activity mainly by requiring retention and preservation of ballots and election records for federal elections (notably the 22‑month retention tied to federal law) and by criminalizing willful destruction or unlawful interference with federal election materials and voter rights; those constraints mean outside actors cannot unilaterally seize or remove ballots and official custody must be maintained [2] [7] [6]. The DOJ guidance and companion CISA resources emphasize that audits must be designed and executed in ways that protect access to records for potential recounts or litigation and prevent intimidation of voters, signaling that some popular “extra‑legal” audit practices risk running afoul of federal criminal and civil statutes [1] [5].
2. Federal guidance and interagency documents, not mandates
Federal action on audits has primarily been advisory: the Justice Department issued a specific “Federal Law Constraints on Post‑Election ‘Audits’” guidance and CISA reposted and summarized that guidance for election officials [2] [5]. The uniform takeaway of these materials is prescriptive in legal limits but not prescriptive about audit methodologies — the DOJ tells jurisdictions to consult the Voting Section on uncertainties, and CISA frames the guidance as a tool to avoid legal pitfalls rather than to impose procedural audit standards [2] [5].
3. Funding: federal grants, EAC, and the legacy of HAVA
Congress has provided federal resources for election administration and infrastructure through laws such as the Help America Vote Act (HAVA), which created the Election Assistance Commission (EAC) and authorized grants that helped states upgrade equipment and create paper trails—resources that indirectly enabled modern audits [4]. The EAC produces best‑practice documentation and supports states through guidance and convenings (including recent Federal Register notices on audit standards hearings), but most jurisdictions fund and run audits with state or local budgets, not ongoing federal audit appropriations [3] [8].
4. State primacy: wide variation in law and practice
Because state laws determine whether, how and which contests are audited, audit statutes and standards vary dramatically: many states now require risk‑limiting audits or define sample sizes and procedures, while others leave discretion to secretaries of state or counties; a 50‑state survey and resources from NCSL, MIT Election Lab, and Justia document this patchwork and the technical standards (e.g., statistical power rules in some state laws) that states impose on post‑election audits [9] [10] [3] [4]. The Bipartisan Policy Center and other experts argue that audits should be regular, statistically rigorous, and funded by government resources to protect chain of custody and public confidence, reflecting an advocacy consensus that private funding or ad‑hoc outside audits can undermine legitimacy [11].
5. Committee reports, oversight and open questions in federal oversight
There is active federal‑level attention — the EAC is holding public hearings and compiling audit principles — but there is no single congressional committee report that has rewritten the statutory landscape to compel or fund audits uniformly; instead oversight has produced guidance, hearings and cross‑agency products [8] [5]. Available sources document DOJ and EAC guidance and funding through HAVA but do not show a comprehensive federal statute that both mandates audits nationwide and funds them; reporting is therefore clear about legal limits and federal support for infrastructure, but limited in showing any current federal law that fully governs and underwrites post‑election audits [2] [4] [3].