Congress Has Precluded Seizure Of Ballots Or Voting Machines During The Counting And Certification Processes

Checks & Balances is a newsletter of the Society for the Rule of Law Institute

By Richard Bernstein

As detailed in the linked article here, Congress has precluded the DOJ from obtaining a warrant to seize ballots, voting machines, or other original election materials until after state officials complete the counting and certification processes. Fed. R. Crim. P. 41(a)(1) does not permit a warrant when its use would modify “any statute regulating search or seizure.” (Emphasis added.) Title III of the Civil Rights Act of 1960, 52 U.S.C. §§ 20701-06, is a statute that regulates search or seizure. For 22 months after election day, no matter what misconduct the DOJ alleges, Title III restricts a DOJ search to inspecting and copying election records or papers at the state custodian’s office.

DOJ’s court-enforceable inspection of documents under Title III is a “search” under both Supreme Court cases and dictionary definitions. Likewise, “regulating” a search or seizure includes restricting the search or seizure process. The text and history of Title III show that, during the 22-month statutory period, Title III deliberately restricts any DOJ search to “inspection” at the premises of the state custodian and any DOJ taking of documents to “copying.”

Title III’s key provision states that an “officer of election shall retain and preserve, for a period of twenty-two months” after election day, election “records and papers.” To “retain” requires keeping possession. A DOJ seizure cannot be reconciled with Title III’s command that a state officer of election “shall retain” election materials.

Title III’s history confirms that in enacting Title III’s restrictions on DOJ to inspection and copying, Title III rejected any other type of DOJ search or seizure that might interfere, even momentarily, with the possession by state officials of election materials, particularly during the counting and certification processes. As Attorney General Rogers explained to Congress: “Because of the importance of voting records and the frequent need to refer to them, we believe it preferable that the legislation should provide for inspection at their location rather than to have them removed by subpoena to some other location.” Civil Rights Hearings before Subcomm. No. 5 of the H. Comm. on the Judiciary, 86th Cong., 1st Sess. 212 (1959) (emphasis added).

A Rule 41 warrant for original election materials during the counting and certification processes would impermissibly modify the Title III restrictions in myriad ways. (1) DOJ would not bring an adversarial court proceeding, in which state officials would receive reasonable notice and an opportunity to be heard before any search. (2) State election officials would not “retain” originals; rather, DOJ would have possession. (3) Instead of an arranged inspection and copying at the state custodian’s office, armed federal agents—likely without warning—would effectively invade election offices. (4) Most important, the DOJ’s removal of election materials would stop the counting and certification processes, threatening state and federal timelines.

The DOJ has other remedies, without using a Rule 41 search and seizure warrant to override improperly Title III’s restrictions. These DOJ remedies include pursuing, in adversarial proceedings before a United States district judge, inspection and copying under Title III or a grand jury subpoena. But no federal court properly could order any production the scope, timing, or location of which would interfere with the counting and certification processes.

Even if Rule 41(a)(1) or Title III were ambiguous, the reading that precludes seizure during the counting and certification processes prevails under four principles of interpretation that prevent executive overreach. These are the federalism presumption, the major questions doctrine, constitutional avoidance, and the related-statute canon. The Constitution gave the power over federal elections to legislatures because the founding generation knew from English history the dangers when the central government’s executive officials could interfere in elections. If the federal courts permit seizure once, every two years every administration could scour the many criminal provisions in federal law—including non-election provisions such as Rule 41—to find any potential basis to seize election materials to affect election outcomes. The courts should reject such a massive expansion of federal executive authority imperiling the constitutional rights of states and voters.

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Finally, even apart from Rule 41(a)(1), the reasonableness requirement for a search and seizure warrant should be interpreted and applied consistently with federal election statutes that reject seizure of election materials during the counting and certification processes. In Title III and the Federal Contested Election Act, 2 U.S.C. § 381 et seq., Congress considered DOJ’s need for evidence in criminal cases, see 52 U.S.C. § 20704, the interest in timely resolving close elections correctly, see 2 U.S.C. §§ 382(a), 388(e), and the need of state officials to use election materials. Congress settled the policy balance by protecting the counting and certification processes from seizure of election materials. Federal courts must not allow a Rule 41 warrant that overrides the codified judgments of Congress.

There is no court decision precedent for a DOJ seizure of election materials before the counting and certification processes have been completed. Keeping it that way is vital to keeping our nation a republic.

Richard Bernstein is a Partner at Willkie Farr & Gallagher and former Partner at Sidley Austin. He previously clerked for Justice Antonin Scalia and Judge Amalya Kearse, and since 2017 has focused his work on pro bono efforts opposing unilateral executive power and election subversion. He is also a board member of the Society for the Rule of Law.

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^{The Society for the Rule of Law Institute publishes guest essays to foster thoughtful discussion on issues relating to the Constitution and the Rule of Law. The views expressed in this article are those of the author and do not necessarily reflect the views of the Society for the Rule of Law Institute.}