A California sheriff seized ballots. The court ruling shutting the probe will resonate nationwide
“Election officials are planners. And so, they have to consider possibilities even if they’re not going to happen — to be ready in case they do,” said David Becker, a former Justice Department voting section attorney who now advises election administrators of both parties. “They’re considering wild possibilities that they wouldn’t have had to before.”
Chief among the concerns is how handing over those materials to investigators would break the chain of custody, as state and local regulations impose strict procedures for handling ballots to maintain public confidence in election results.
The state Supreme Court wrote that “allowing law enforcement unfettered access to ballots, or the ability to handle and count them in secret based on unregulated protocols, itself creates a substantial risk to election integrity.”
In the months since those two episodes, state officials have instructed local election administrators to alert them if law enforcement demands voting materials. Some states have even passed laws requiring that notification and imposing stiff penalties for anyone involved in an unlawful seizure of ballots. Election law scholars have attempted to educate judges about the unique concerns around ballots for when they’re considering warrants and subpoenas for voting materials.
Justin Levitt, a law professor at Loyola University who has worked on voting issues for Democratic administrations, predicted that the Riverside County fight — and the “clarity” of the new state court ruling — will have national repercussions.
“I don’t think there’s a magistrate (judge) in the country who’s going to not think twice about a search warrant” related to elections, Levitt said….
The opinion creates a clear precedent for how lower courts in California should act if similar issues arise in the future. However, it will not bind courts in other states, and the laws those courts would be considering when reviewing seizures of ballots will be different than the California laws that led to Thursday’s ruling.
Still, officials in other states and the legal experts that advise them told CNN that a silver lining of the episode was that the tactic was tested in California — a state that was poised to act aggressively in court to shut it down. Bonta’s office has also taken a lead role in the litigation over Trump’s efforts to meddle in election administration and said he’s in conversation with other states ahead of the midterms….
Election officials are “working with their state’s attorney general, with county attorneys, with city attorneys to make sure everyone understands who actually has authority and access to any part of the election procedures and processes,” said Tammy Patrick, a former Maricopa County, Arizona, election official who is now the chief programs officer for the National Association of Election Officials.
Making judges aware of the sensitivities has also been part of the effort. With the input of other election law scholars and former judges, Richard Hasen, an election law professor at University of California-Los Angeles, published a white paper seeking to guide judges on how they should assess applications from law enforcement to obtain ballots. Among its recommendations is that judges consider granting investigators access to copies of ballots, rather than the ballots themselves, to maintain chain of custody…..
