How can the Supreme Court protect electoral integrity?

Justice, Democracy, and Law is a recurring series by Edward B. Foley that focuses on election law and the relationship of law and democracy.

The court has already confronted cases concerning the midterms, like the efforts to re-gerrymander already gerrymandered congressional districts for even more partisan advantage. And undoubtedly, the court will face many more issues before ballots are cast in the upcoming fall.

But there is one specific possibility that I want to consider now because it’s especially crucial that the court be prepared to act proactively, so as to avoid electoral subversion that can’t be remedied after it has occurred.

The threat is that President Donald Trump will order FBI, or perhaps other federal officers, to seize ballots in key congressional districts, so that the results of those elections cannot be certified before Jan. 3, 2027, when the new Congress is scheduled to meet and elect the Speaker of the House. Indeed, federal seizure of ballots potentially could irrevocably destroy the essential chain-of-custody of those ballots, preventing those elections from ever being certified and requiring instead another round of voting in those districts. But meanwhile the House Speakership election would go forward without Members-elect from the affected districts, potentially determining which political party controls the House of Representatives without the input from all of America’s voters – a deliberate denial of democracy if ever there was one.

This threat, while altogether unprecedented (at least in the history of the United States), is unfortunately not fanciful. Trump has said that he regrets not ordering the federal seizure of ballots in 2020. Earlier this year, the FBI seized ballots in Georgia from the 2020 election, and while that seizure importantly did not interfere with counting votes in a pending election, it raises the obvious specter that Trump might attempt something similar in the middle of this year’s midterms.

The federal government is not supposed to interfere with the procedures that states use to count ballots and certify the results of elections, including even elections to federal offices. The U.S. Department of Justice may prosecute election fraud that violates federal criminal law, but these prosecutions – and any FBI or other federal investigations leading to these prosecutions – may not obstruct a state’s procedures for counting and certifying the votes.

In fact, the DOJ has had a longstanding policy to this effect, expressly set forth in what is now the eighth edition of its “Federal Prosecution of Election Offenses” manual. Section E of Chapter One in this manual is entitled Federal Role: Prosecution, Not Intervention, and it states that “any criminal investigation by the Department must be conducted in a way that minimizes the likelihood that the investigation itself may become a factor in the election.” The section elaborates: “Moreover, the seizure by federal authorities of documentation generated by the election process may deprive state election and judicial authorities of critical materials needed to resolve election disputes, conduct recounts, and certify the ultimate winners.” Thus, that paragraph concludes: “Accordingly, it is the general policy of the Department not to conduct overt investigations, including interviews with individual voters, until after the outcome of the election allegedly affected by the fraud is certified.”

There is a concern, however, that Trump’s DOJ will not comply with its own manual this year. Bob Bauer, the former White House counsel and current NYU law professor, recently wrote on the Executive Functions Substack that the DOJ has removed the manual from its website. Although other print and digital copies of the manual are available, Bauer queries whether its removal from DOJ’s website signals that a revision of the manual – and an abandonment of its core principles – is in the works.

While what Bauer describes is indeed ominous, there is a compelling argument that the principle of noninterference articulated in the manual is not merely a matter of DOJ’s prosecutorial discretion, but instead required by federal constitutional law as reflected in a crucial Supreme Court precedent.

Article I, section 5 of the Constitution makes each house of Congress “the Judge of the Elections, Returns and Qualifications of its own members.” In the 1972 case of Roudebush v. Hartke, the Supreme Court ruled that this provision permits states to conduct a recount in a Senate election if – but only if – doing so does not interfere with the Senate’s power under Article I, section 5 to make the ultimate authoritative determination of which candidate won the election. Giving this ruling, it necessarily follows that the federal executive branch also cannot take any actions with respect to a congressional election that interferes with the congressional chamber’s power under Article I, section 5 to decide which candidate won the election.

Notre Dame election law scholar Derek Muller helpfully highlights this point in a recent essay for The Conversation. As Muller states, Roudebush establishes that “a state recount … is perfectly acceptable, as long as it does not impair the power of Congress” under Article I, section 5. The same logic means that federal investigations of election crimes cannot impair this constitutionally designated congressional power. Echoing the principle articulated in the DOJ manual, Muller observes: “If a federal investigation seizes, damages, or destroys election materials, it can affect who has the power to assess the election.” Specifically, he explains that “ballots, voting machines, tabulation equipment and related records” are “the raw materials for the canvassing of votes and certification of winners.” Therefore, he continues, “they are necessary for any later inquiry by Congress if a House or Senate race becomes contested.”  Consequently, if the FBI were to seize these types of election materials during this year’s midterms, thereby preventing the House of Representatives on Jan. 3, 2027 from determining which candidates from the affected districts were the House Members-elect entitled to vote for Speaker of the House, the FBI’s actions would run afoul of Roudebush.

To Muller’s analysis, I would add this: Article I, section 4 gives the state governments the power to administer congressional elections – including counting ballots and certifying results – unless and until Congress chooses to take away this authority from the states (which presumably Congress could do pursuant to its section 4 prerogative to “make or alter such regulations” concerning the “Time, Places and Manner of holding Elections for Senators and Representatives”). Congress, however, has not made that choice, and thus the administration of congressional elections remains with the states. Therefore, because Roudebush constrains how states administer congressional elections so that there is no interference with the ultimate authority of each house of Congress under Article I, section 5, it must be true a fortiori (to use the Latin term for an even greater truth) that Roudebush bars the federal executive branch from undertaking any conduct that would usurp the power of each house of Congress under Article I, section 5.

As a practical matter, the question is how the Supreme Court can enforce its Roudebush precedent before it’s too late. If the FBI manages to seize ballots in a way that destroys the chain of custody or otherwise undermines the integrity of one or more congressional elections, the damage can’t be undone. No federal court injunction at that point can restore the power of the congressional chamber to determine who actually won the election without the FBI’s interference.

Therefore, the Supreme Court must be cognizant of the need for an effective remedy that will prevent this kind of interference before it occurs. The court should consider this a corollary of its Purcell principle. That principle, named for a 2006 case involving Arizona’s voter identification rules, is that the federal judiciary should not take action in advance of an election that would destabilize the state’s administration of the election. But the converse of this proposition is also true: the federal judiciary should take action if not doing so would prevent the state from administering the election in accordance with its own rules and procedures. Failure to block the FBI from seizing ballots before the seizure happens would make the judiciary complicit in the executive branch’s nullification of the congressional authority vested in Article I, section 5.

Obviously, the judiciary cannot act without a case being filed. In a recent podcast, UCLA election law professor Rick Hasen suggested that state election administrators file lawsuits in advance of the election seeking to enjoin the FBI from interfering with the steps necessary to certify their congressional elections. In addition to the possibility of state officials bringing these lawsuits, candidates who might be detrimentally affected by such FBI interference have every incentive to litigate this issue aggressively to protect their interests.

In an important ruling earlier this term, the Supreme Court established a standard that facilitates litigation by candidates to safeguard the integrity of the electoral process. The case is Bost v. Illinois State Board of Elections, and Chief Justice John Roberts wrote the court’s opinion, signaling its significance. Rejecting a higher bar for candidate suits, Roberts wrote that “a candidate has a personal stake in the rules that gov­ern the counting of votes in his election” and “candidates also have an interest in a fair process.” By this standard, a candidate undoubtedly has an interest in stopping the FBI from taking steps that would (in the chief justice’s words) “deprive the candidate of a fair process and an accurate result.”

The availability of a judicial remedy depends not only who can sue but when. The “ripeness” doctrine prevents litigants from seeking judicial relief prematurely. But for reasons already stated in connection with the Purcell principle, it would not be premature for a candidate to seek a remedy against FBI seizure of ballots in the election before the FBI has the opportunity to make its irreversible interference a fait accompli – much like Trump’s destruction of the White House’s former East Wing. (Here’s how to think about the connection between ripeness and Purcell: because Purcell bars suits that should have been filed earlier in order to avoid disrupting an upcoming election, it can’t be too soon to file an election-related suit if it would be ineffectual and thus pointless to file the suit at any later date.)

Whatever specific words the Supreme Court would choose to craft an opinion on this issue, I have no doubt of the court’s capacity to make clear to the executive branch that it will not tolerate any interference with the constitutional power of Congress under Article I, section 5. Otherwise, the court risks in this year’s midterms exactly what it said in Bost is to be avoided: elections that lack “political legitimacy” because – as a result of deliberate subversion of the process – they do “not reflect the will of the people.”