The Fourth Amendment protects against unreasonable searches and seizures. In most instances, that standard requires a warrant issued upon a presentation of probable cause. Some contexts demand less. But, just as important, some contexts demand more.
Much scholarship and caselaw explores the special circumstances in which searches or seizures are constitutionally “reasonable” despite the absence of probable cause. But the alternative has drawn little attention: special circumstances in which searches or seizures are unreasonable despite the presence of probable cause.
This Essay, by faculty with U.S. Department of Justice (DOJ) experience on both the civil side and criminal side of election inquiries, reviews one such application of that alternative: the reasonableness of a warrant to seize election materials while results are pending. It articulates the unique imposition that a federal seizure of election materials would entail. It offers an analysis of DOJ’s authority to enforce federal election statutes that reveals limits not before discussed in legal scholarship and relevant to the disposition of a warrant application in this context. And it examines, also for the first time in academic work, the specifi c constraints of a statute governing DOJ’s civil access to election records that also implicate DOJ’s authority to access records in the criminal sphere. Finally, in the event that federal access to election records is truly necessary while results are pending, the Essay closes with a recommendation for structuring warrants for election materials, emphasizing access to copies rather than exclusive federal custody of originals, consistent with the relevant constitutional command and statutory structure.
