have in this area, and might lead to confrontations among
poll officials, local police, and federal agents. It also risks
violating a federal statute that prohibits sending armed
federal agents to the polls. 18 U.S.C. § 592.
ii.
Non-interference with the voting process.
States use many types of documentation in conducting
elections (such as registration cards, voter lists, poll
books, and voting machines), and in tabulating and
certifying the results (such as ballots, tally sheets, and
absentee voting materials).
Subpoenas for such
documentation should be timed, and compliance
procedures developed, so as not to deprive election
officials of records they need to tabulate votes and certify
election returns.
iii.
Need for probable cause before opening sealed ballots.
Absentee ballots might come into the possession of
federal officials while still sealed in the envelopes
bearing the names of the voters who ostensibly marked
them. Also, a few states provide for some types of paper
ballots to be numbered in a way that corresponds with the
order of signatures on a poll list. In either situation,
marked ballots can be attributed to individual voters. This
is particularly useful in cases involving suspected fraud
in the marking or alteration of the ballot document itself.
However, since voted ballots are documents in which
individuals have an expectation of privacy, sealed
ballots should not be opened without satisfying the
Fourth Amendment’s probable cause standard.
Accordingly, a search warrant should be obtained before
taking investigative steps that would result in linking
individual ballots to the voters who allegedly cast them.
Alternatively, if the individuals whose names appear on
the sealed ballot envelopes deny that they voted, these
individuals may be asked if they are willing to open
the ballot envelopes ostensibly “voted” by them.
97
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