Warrants are a key part of American law enforcement, as everyone who’s watched a TV show about a police department would know. As it turns out, though, there’s a good reason that warrants have become so omnipresent in American culture – they are a foundational part of our Constitution. 

The Fourth Amendment states that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The safeguards that warrants provide everyone in the United States are an important way we limit the enormous investigatory power that we have given the federal government.

Why the warrant requirement is so crucial 

If you read that Fourth Amendment provision carefully, you’ll notice that the Founders actually put limits on when and how warrants can be issued. This was in direct response to warrants issued by the King of England – known as “general warrants” – which had no restrictions, review, or evidentiary requirements, and allowed him to go after his political enemies. This obvious abuse of power was the threat Founders were protecting against. 

By contrast, American judicial warrants require a judge to sign off before a search can occur. This mechanism is explicitly designed to make sure a neutral third party approves of the search ahead of time. That protection is crucial because, even if you’re never charged with a crime, being subjected to a criminal search is a massive invasion of privacy. Depending on the scope of the search authorized, law enforcement officials can look at everything – photos, bank records, text messages, search histories, etc. Requiring a judge to weigh in and approve that intrusion is a critical safeguard. 

So how does a judge decide whether or not to authorize a search? Warrants have to specifically state that there is “probable cause,” meaning the authorities have reasonable grounds to believe that the law is being violated and that there is evidence of that violation at the place they seek to search. The warrant application must also state specifically where authorities intend to search and what person or things will be seized.

Warrants rely on good faith 

When a judge reviews a warrant application, they do not conduct their own investigation. There is no hearing or opportunity to object for the individual potentially subject to the search. The system relies on law enforcement officials to make truthful, good faith assessments of the facts supporting probable cause. Law enforcement officers are not required to lay out their entire case – after all, seeking warrants is often an early step in an investigation – but they cannot intentionally omit facts that would negate probable cause if included.  

Because the government receives so much deference from judges in the evidence presented to obtain warrants, the process is highly susceptible to abuse if law enforcement is acting in bad faith. While it may be possible later for a criminal defendant to challenge or exclude evidence obtained on a bad faith warrant from a criminal trial, in cases in which the goal of an investigation is political or retaliatory, the damage may well already be done. 

The Fulton County election warrant is an important example 

When federal agents executed a search warrant in Fulton County and seized more than 650 boxes of ballots related to the 2020 election, they were doing so based on a warrant that doesn’t offer a complete picture. The warrant in question elides key information and relies on witnesses with a history of conspiratorial thinking about the 2020 election. Crucially, it does not include the key finding that many of these allegations were dismissed. 

This apparent abuse of the warrant process speaks to the way bad actors could use it to sow misinformation and intentionally confuse the public. In this case, the warrant was used to once again relitigate the (resolved) 2020 election, even though ballots in Fulton County have been subject to numerous investigations and lawsuits and counted three separate times under the supervision of Republication administrators, and with regular citizens of all political persuasions there to observe. 

The point, then, is not to find any actual wrongdoing, but to create a perception of the possibility of wrongdoing that might serve as a pretext to interfere in future elections. This kind of warrant abuse is just one mechanism the administration has at their disposal to sow mistrust in order to mislead. It’s the constitutional right of all Americans to demand a warrant when law enforcement attempts to conduct a search. You should understand, though, that that doesn’t mean warrants cannot be abused. 

What you can do about it

1. Really critical fights about voter rolls, data, procedures, and persona are happening at the local level all over the country. It is very important to support local journalism covering those issues and follow them closely – it might seem wonky or analytical, but it’s crucial to preserving our democracy. 

2. It’s more important than ever to have smart, capable, independent folks involved in our elections. Sign up to be an election official. Plan to attend logic and accuracy testing. Or, you can be a poll observer. Sign up during the primaries so you have a chance to see how things work before the big day in November. 

3. Learn more about the key differences between administrative and judicial warrants, and how the administration is using each.