A Judicial Guide to Search Warrants Seeking Election Materials

One manifestation of U.S. political polarization is the volume and ferocity of election- related litigation. Recent events raise the possibility that federal, state, or local law enforcement may seek a search warrant to seize ballots or other election related materials during an ongoing, live election for ostensible purposes of conducting a criminal investigation. Such an unusual and (in modern times) unprecedented request raises grave, competing concerns: On the one hand, allowing anyone other than duly-authorized local election officials to gain control over election materials before all election-related activity is final may cause irreparable harm by breaking the chain of custody and tainting election results; no one can be sure that ballots outside the chain of custody have not been added to, removed, or altered. On the other hand, law enforcement possessing probable cause of a crime have a legitimate interest in assuring that relevant evidence is not destroyed or altered.

This white paper assists judges should such a conflict arise. It first describes chain of custody procedures in elections and how breaking that chain may cause irreparable harm to voters, candidates, and the public, who have the right to an untainted election. It then explains special concerns arising if law enforcement seize election materials and break the chain of custody. It concludes by laying out alternatives to judicially-authorized ballot seizures that avoid irreparable harm and protect election integrity and confidence in the judiciary. In particular, courts should (1) closely scrutinize whether there is a legal basis and probable cause to issue a warrant; (2) consider timing modifications; (3) when feasible, provide state and local election administrators with notice and an opportunity to be heard about the risks of seizures and acceptable alternatives; (4) consider modification of a warrant’s terms to protect the chain of custody, such as providing law enforcement with copies, rather than originals, of ballot materials; (5) consider other appropriate modifications; and (6) if a warrant is issued, examine post-warrant procedures. These alternatives minimize the risk of irreparable harm; protect the rights of voters, candidates, and the public; and bolster public confidence in the fairness and integrity of elections and the judiciary.

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