Law Enforcement Responsibilities
While election security is of utmost importance, a criminal investigation is not the right remedy for all allegations the public may bring to the attention of election officials, sheriffs, and federal agents. Education, internal reviews, civil election challenges, and fulsome explanations are important initial steps. The FBI’s internal rules require that to open a full investigation, the bureau must have an “articulable factual basis” to believe that criminal activity may have occurred. Questions raised by activists or politicians do not justify the seizure of sensitive material.
The FBI’s policy also says that the bureau shall employ the least restrictive means of seeking evidence in order to balance operational needs against privacy and civil liberties. Contrary to that guidance, however, law enforcement agencies used warrants as their opening salvo in their efforts to obtain election materials in California and Georgia. Absent some expectation that election officials would destroy the documents they sought, law enforcement officers are expected to engage with civilian counterparts rather than defaulting to a warrant.
Using the least restrictive means is good policing. Even the Civil Rights Act of 1960, which empowers the attorney general to investigate potential violations of voting rights by election officials, calls only for “inspect[ion]” and “copy[ing]” with a sufficient “basis and purpose” — in other words, not seizing the original copies. This makes sense in the context of a properly predicated investigation: A copy of election materials would be sufficient to determine whether any voters or ballots were excluded from the count on an impermissible basis, such as race, even if an election office later attempted to destroy those materials. Indeed, evidence of later destruction or alteration would itself speak to the officials’ lack of credibility.
Proceeding with caution is especially important in the context of law enforcement demands for election materials because these original materials are particularly sensitive. Registration records and ballot envelopes, for example, often contain voters’ personal information, such as their home address, Social Security number, and images of their signature. In another example, paper ballots are typically the official record capturing the voters’ intent. As the bipartisan leaders of the U.S. Election Assistance Commission noted last year, that record is a crucial “paper trail for voting systems to enhance election verifiability, audit functions, and voter confidence. . . . Auditable and software-independent voting systems are necessary to safeguard our nation’s elections.” In other words, preserving ballots in an unaltered state is necessary for the public to have faith that election proceedings — including the official tally of results and any subsequent audits, recounts, and challenges — reach the right outcome.
How to Respond to Law Enforcement Demands
So, as custodians of these materials on voters’ behalf, what are election officials to do in the face of law enforcement demands for access? Offices can ask a court to quash or modify subpoenas they receive as part of a federal criminal investigation if compliance would be unreasonable, oppressive, or against state law. Those subjected to search warrants can ask a court to order the return of seized property, and they should do so as soon as possible — even, in the right circumstances, before law enforcement carts away the evidence.
Litigation over the FBI raid in Fulton County provides an example for other jurisdictions. Election officials there successfully asked a district court to unseal the search warrant affidavit. An order from the court also set an evidentiary hearing and ensured that the county officials can seek not just the return of the seized 2020 election materials but can also challenge whether the raid was legally justified by probable cause, which the Fourth Amendment requires. That is a substantial remedy early on in a criminal investigation.
Election officials can also help head off demands for access by educating the public and promoting transparency around elections. For example, the Riverside County Board of Supervisors held a public meeting in February where experts from the local election office answered questions and explained flaws in a private audit of California’s 2025 special election. This type of transparency can help bolster faith in the professionals who conduct elections. Even if it doesn’t change the hearts and minds of election skeptics, it should put to rest the notion that criminal investigations are required to address citizen concerns and questions.
Law enforcement partners can also instruct and intervene. Following the subpoena for election records in Arizona, the state’s attorney general and secretary of state sent a joint letter to the 15 elected election recorders advising them that providing full, unredacted voter files to the federal government would violate state and federal law. In the Riverside County ballot seizure, California’s attorney general demanded and received copies of the sealed search warrants, consistent with his authority as the state’s chief law enforcement officer. Following a review of the warrants, he went to court to protect the integrity of the seized ballots and put a stop to an unnecessary and inevitably untrustworthy recount to be performed under the guise of a criminal investigation.
Federal grand jurors can fulfill their constitutional role, too, by questioning the officials who issue subpoenas in their name — particularly when the government serves a “friendly subpoena” on a witness disinclined to challenge any improprieties. Any of the 23 members of a grand jury have the right to ask the government to explain the rationale behind an investigation or a subpoena. This wouldn’t provide transparency to the general public, as grand jury matters are rightly protected from disclosure, but it would ensure comity and an equal partnership between the grand jurors and the prosecutors who advise them.
Ultimately, it rests with the judicial branch to transparently and quickly rule on demands by criminal investigators directed at election officials. Judges issuing search warrants can impose conditions on the manner in which the warrant is executed. The Civil Rights Act’s framework — which grants law enforcement nonexclusive custody of relevant materials if it can demonstrate an investigative basis and purpose — would be a good starting point. Court systems may need additional procedural rules for election matters to protect the integrity of elections and postelection procedures, such as recounts and audits, from delays or other disruptions. And whenever possible, courts should agree to unseal pleadings and other court papers filed by law enforcement officers and prosecutors without the other party’s knowledge. Sunshine is a great confidence builder.
Gary Restaino is a former U.S. attorney for Arizona.
