Article

Understanding warrants for mid-election records

Who should read this

  • Judges
  • Election officials

Why it matters

State and federal laws designate local election officials as sole custodians of election materials. An application for a criminal warrant to seize election materials before election results are final (here termed "mid-election warrants") raises distinct legal issues, beyond the straightforward ex parte resolution of warrant applications in other circumstances.

Mid-election warrant precedent

State cases in the modern era reveal a handful of mentions of state mid-election warrants for election materials but no adjudication of their validity.1 Research has revealed no modern instance in which federal law enforcement sought a warrant for election materials while election results were not yet final.2 Two recent cases — involving a federal warrant in Georgia and a state warrant in California — concern warrants issued after results had been finalized (in one case by several years) in the relevant elections.3

Federal law requiring local retention

In an election with federal races on the ballot, federal law requires a local elections official (or alternative custodian designated by a state) to retain for 22 months "all records and papers which come into his possession relating to any application, registration, . . . or other act requisite to voting in such election." 4 The same law provides for federal access to records at local election offices for "inspection, reproduction, and copying," but ensures that custody remains at all times with local election officials.5 For elections with federal races on the ballot, this federal law may preempt state transfers of original materials pursuant to a warrant during this period.6 In addition, federal officials acting pursuant to this law may not use ex parte proceedings to gain access to election materials; election officials must have an opportunity to be heard at an adversarial hearing.7

State chain of custody

State law dictates strict chain of custody requirements for election materials, privileging local election officials.8 Materials held by state officials may affect the determination of state, county, or municipal elections — not only for the initial resolution of a result but also for the disposition of election contests or other disputes.

Constitutionality

The Fourth Amendment of the U.S. Constitution protects against "unreasonable" searches and seizures.9 Some searches or seizures may be constitutionally "reasonable" despite the absence of probable cause.10 Similarly, searches or seizures may be constitutionally unreasonable despite the presence of probable cause.11 Where searches or seizures run up against other constitutional rights, such as the First Amendment or the Search and Debate Clause, courts have sought to minimize disruption of those rights to ensure the search is constitutionally reasonable.

Assistance/tailoring

Where the constitutionality of a warrant is at issue, federal courts have requested the assistance and expertise of amicus curiae to address novel questions raised by an application for a warrant.12 Federal courts have also determined that law enforcement interests in certain contexts may be sufficiently satisfied by granting the government copies of materials rather than ordering exclusive custody over originals.13

Resources

Download Warrants for Mid-Election Records

Footnotes
  1. See, e.g., Sowers v. State, 101 So.3d 1156 (Miss. 2012) (involving unchallenged seizure pursuant to a warrant in absentee ballot fraud investigation); State v. Jackson, 811 N.E.2d 68 (Ohio 2004) (holding unchallenged warrant did not violate ballot secrecy provisions of state constitution); Hileman v. McGinness, 739 N.E.2d 81 (Ill. 2000) (involving unchallenged warrant where materials were returned to county clerk on the day of the primary and comingled); People v. Jenkins, 624 N.W.2d 457 (Mich. Ct. App. 2000) (involving unchallenged search warrant for absentee ballots suspected of fraud). Older state cases have adjudicated the validity of warrants for election materials without noting whether results were pending at the time. See, e.g., Ex parte Brown, 31 P. 840 (Cal. 1892) (rejecting the validity of a court order to produce ballots in a pending criminal investigation as inconsistent with state chain of custody statutes).
  2. Cf. Levitt & Keller at 7 n.19 at link in resources below (noting the lack of precedent).
  3. See Pitts v. United States, __ F. Supp. 3d __, 2026 WL 1970785, at *14, 24 & n.26 (N.D. Ga. May 6, 2026) (repeatedly noting, in adjudicating a motion for the return of seized records, that the records in question were not integral to the resolution of a pending election); Bonta v. Bianco, No. S295901 (Cal.) (pending); Cervantes v. Bianco, No. S295866 (Cal.) (pending).
  4. 52 U.S.C. § 20701.
  5. 52 U.S.C. § 20703.
  6. U.S. Const. art. VI, § 2.
  7. 52 U.S.C. § 20705 (requiring reasonable notice to state official and an opportunity to be heard in an adversarial proceeding before a United States district judge).
  8. See, e.g., Bryan v. Yungblut, 125 S.W. 251 (Ky. 1910) (construing state statutes to reject the displacement of custody from the local elections official, even in the investigation of alleged criminal misconduct); Ex parte Brown, 31 P. 840 (Cal. 1892) (same).
  9. U.S. Const. amend. IV.
  10. See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32, 37-40 (2000) (cataloguing several of these contexts).
  11. See, e.g., Ft. Wayne Books v. Indiana, 489 U.S. 46, 63 (1989) (finding that "while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause . . ., it is otherwise when materials presumptively protected by the First Amendment are involved," and requiring an advance adversarial hearing before seizure).
  12. See, e.g., In re Search Warrant No. 5165, 470 F. Supp. 3d 715, 720, 723 (E.D. Ky. 2020) (seeking amicus curiae expertise in adopting a detailed standard for determining the constitutionality of a warrant which allows law enforcement to compel all individuals present, whether target or bystander, to provide biometrics (a common substitute for alphanumeric passcodes) which would unlock seized electronic devices).
  13. Cf., e.g., Ramsden v. United States, 2 F.3d 322, 327 (9th Cir. 1993) (holding that the government's reasonable and legitimate law enforcement interest could be satisfied with copies instead of originals such that the individual's business would not be disrupted).