Recent FBI searches of Fulton County Georgia elections facilities and seizure election materials in response to a search warrant have raised concerns about what this could mean for future voting.
What would happen if the executive branch, a determined and determined body of government, used the federal law enforcement agencies to seize materials related to elections in order to create doubt about the midterm congressional election results for 2026?
When an investigation threatens to tamper with the evidence necessary to determine election results, courts and states need be cautious.
This is why a Supreme Court decision from the 1970s, about a recount in Indiana that set important guidelines to avoid post-election confusion for federal elections matters.
In 1970, the Indiana Senate election was very close on Election Day. The U.S. Supreme Court would hear an important case if the results were challenged.
Purdue Exponent (Nov. 4, 1970)
Congress’s constitutionally-delegated role
Roudebush V. Hartke was a case that arose in 1970 from an extremely close U.S.
Senate election in Indiana. R. Vance Hartke was declared the winner after the canvass, a state-run process of counting and verifying the election results. The certified winner typically presents himself before Congress.
Congress accepts the certificate and appoints the new member.
Richard L. Roudebush invoked Indiana’s recount procedure. Hartke sued in order to stop the count.
Hartke argued that the state recount would interfere with the right of each chamber – the Senate and the House of Representatives – to decide their own election under the Article I, section 5 of the U.S. Constitution.
This clause grants each chamber exclusive rights to decide on elections. This power cannot be interfered with by anyone else.
Hartke was concerned that the Senate would not be able to examine the ballots in the event of an election dispute if a recount resulted in altered or destroyed ballots.
The Supreme Court has rejected this argument.
The court ruled that the state recount did not “usurp the authority” of the Senate because it was still free to decide who had won an election.
It can be interpreted as a way to get new information, in this instance an extra set of tabulated election results, without removing the Senate’s final decision.
The court also said that there was “no evidence” that the recount board could be less honest and conscientious than the precincts that originally tabulated election results.
The state recount is acceptable as long as the process does not compromise Congress’s power.
The Roudebush case recognized the states’ power to run congressional elections under the Article I, section 4 of the U.S. Constitution.
This includes the right to determine “Times, Places and Manner for holding Elections for Senators and Representatives,” but only with Congress’s approval.
Likewise, courts and state governments should refrain from interfering with this core constitutional role. They cannot engage in behaviors that usurp Congress’s constitutionally-delegated role in elections.
No court or state interference is allowed in the core constitutional role of each chamber of Congress to judge its own election.
David Shvartsman/Getty Images
The power of evidence
Fulton County’s episode is politically and legally fraught, not because agents from the federal government executed a search warrant, courts issue them all the time, but because what they seized was ballots, voting equipment, tabulation machines and other records.
These items are more than just proof. These items are not just evidence.
They also serve as raw material for canvassing votes and certifying winners. These documents are the basis for audits, recounts, and other forms of verification. They are also necessary to any future inquiry by Congress in the event that a House of Senate or House race is contested.
This overlap can create a problem. If federal investigators seize, damage, or destroy election materials, this could affect the authority to evaluate the results of the elections. This can create uncertainty in the chain of custody. Because the state removes ballots from absentee ballot envelopes and transfers them from Election Day precincts into county storage facilities for election, they ensure that only the votes cast on Election Day will be tabulated.
The fact that ballots can be seized and the chain of custody broken, instead of increasing confidence in election results, may increase doubts.
This is the “modern” version of usurpation.
Roudebush, from my perspective as a scholar of election law reminds me that courts need to be wary about executive actions which take the control on election proof away the the institutions that the Constitution says are supposed to judge.
Congress does not just decide contests
In 2024, Congressional observers were dispatched to Iowa to oversee a vote recount. Fox News
Another reason why courts need to be careful about federal actions which seize or compromise electoral materials is that the House has long been able to monitor state election administrations in tight congressional elections.
Election Observer Program is maintained by the Committee on House Administration. This program sends House staff with credentials to local voting facilities during “closed or difficult” House election. This staff monitors the casting, tabulating, and canvassing of votes.
This program is there for one simple reason: if the House can be asked to adjudicate a contest election in Article I, section 5, then it has a legitimate institutional interest in knowing how elections were administered and records handled.
This observation function does not exist in a vacuum. It has been announced that the committee will be sending out congressional observers to monitor recounts in close House races across the nation.
In 2020, I witnessed it first hand. In Iowa’s 2nd Congressional District, the House sent election observers to supervise a recount for a congressional race that ended up being certified with a six-vote margin.
Democratic and Republican House observers politely observed and asked questions. They also kept records.
But they never tried to interfere with state elections apparatus, or touch election equipment, or even ballots.
Since 1984, Congress has never rejected an election result from a state. This is for good reasons. States have strict record keeping, strict chain of custody procedures, and many ways to verify the accuracy of election results. State results have become even more reliable with Congress on the watch.
Federal investigations and election materials collide
The seizure of evidence can negatively affect the administration of elections. Courts and states should be on guard, maintaining safeguards to respect institution boundaries.
Any attempt by the executive branch to interfere unilaterally in a state’s election system should be scrutinized. Contrary to the Fulton County warrant which was issued for an old election, warrants interrupting state processes during an election could usurp Congress’ constitutional authority.
Executive action is not possible if the executive actions interfere with the ability of Congress, the supreme authority in judging the elections of their members.
If a court does issue a warrant in the extremely unlikely case, it should not allow seizure during an ordinary state post-election canvass. Inspection of items, providing copies of electoral materials or ordering the preservation of evidence is a more targeted way to achieve similar objectives.
Courts should also establish clear procedures for the chain of custody in case evidence is needed to be saved in the future in an investigation by federal authorities.
Many public comments about midterm election dangers are not just based on the fear that officials would be investigated, or evidence would be confiscated. Investigations could be used to manipulate or worse disrupt elections by disorganizing records, causing confusion, or disrupting the custody of ballots or systems.
Roudebush outlines a constitutional position that the courts should take, acknowledging that certain acts may usurp Congress’ power to adjudicate elections.
This will constrain the executive in the run-up to the election of 2026 and lessen the chance of an intervention during the election.
