The idea of federal law enforcement seizing ballots in the middle of an active election would have once been considered impossible. Now, as President Trump continues his unprecedented hunt for voter fraud, ballot seizures and search warrants are scenarios voting officials and the legal community are actively preparing for. One state election official, who did not have permission to speak publicly, told NPR their office has led three separate statewide trainings this year to prepare for the possibility of law enforcement seeking to take possession of ballots or election materials while the election is ongoing.
And UCLA's Safeguarding Democracy Project released a guide Wednesday, shared first with NPR, to help judges navigate search warrant affidavits related to the voting process. "Lots of things that were off the table are now on the table," said Rick Hasen, the director of the Safeguarding Democracy Project, and the guide's lead author. Trump has said he regrets not pushing harder for the federal government to seize election equipment after the 2020 election.
Already this year, two different search warrants, executed in Fulton County, Ga., and Riverside County, Calif., involved the seizure of ballots. All that has voting officials preparing for different worst case scenarios this fall. "This is the thing we really fear," the state voting official, whose state has conducted the trainings, said in a previous interview with NPR.
"[Say] we have really close races [in our competitive districts] then the DOJ, FBI come knocking on one of our county doors and they say, 'We believe there's hijinks going on, we're going to confiscate all the ballots so we can count them.'" If a warrant were served and ballots were seized before an election is certified, it's possible voting officials wouldn't be able to confidently know how many ballots were returned, or whether the ones that were seized were tampered with. In elections, this is known as breaking the chain of custody. "They could do so much damage if they did that," the official said.
Legal experts say it is still an extreme and unlikely scenario. Notably because there is a last line of defense that must sign off on any attempt to seize ballots: a judge. "Right now, the judiciary writ large has their antennae up, anticipating what might be coming down the pike," said retired federal judge Philip Pro, who served as the chief judge for the District of Nevada.
"They're going to be prepared." The warrant executed at the elections office in Fulton County, Ga., was a wake-up call for the legal community not solely because it happened, but because how it was approved. "Eventually we got to see the search warrant and it confirmed some of our worst fears," said Hasen. "It contained information about potential fraud in Georgia that was based on discredited conspiracy theories." Magistrate judges, who are generally the ones dealing with warrant affidavits, are not experts in elections, Hasen said, which means this fall, they could also find themselves wading through dubious claims at a time when misinformation is rampant.
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