County elections officials have allies in county attorneys

As tensions around election administration climb ahead of the midterms, the estimated two-thirds of county elections staff who have not consulted with their county attorneys have an easy first step to making life easier. 

But while the legal support is there, Forsyth County, N.C. Attorney Gordon Watkins told the Finance, Pensions and Intergovernmental Affairs Steering Committee Friday that those elections personnel should help make the process easier for their colleagues, too.

Learn more

Election Official Legal Defense Network

Administering Election Disputes - William & Mary Law School

Government Counsel and Election Officials Network

“I don’t know everything the election officials know because I cover 30 different departments, and that’s true of many, many counsel,” Watkins said. “It’s good to always inform counsel to say, ‘This is the statute that applies, this is the regulation.’ I never take offense at that.”

Former Maricopa County, Ariz. Supervisor Bill Gates, now executive director of the Arizona State University Mechanics of Democracy Laboratory, shared his county’s experience preparing for election strife.

“We had a county attorney who believed in 2020 that the battle for the U.S. Senate might come down to Maricopa County,” he said. “She decided to create an in-house election law team. Most counties are not going to have that luxury, but nonetheless, if you can’t develop that expertise from within house, start reaching out to those experts in the legal community who can provide that assistance to the team at the county attorney’s office.”

The Brennan Center’s Liz Howard cited campaign finance academics in identifying a recent change in the campaign finance law that allows donors to exceed contribution limits of that money is earmarked for legal support. 

“No surprise, more money for lawyers means more litigation,” she said. 

Hence the increased legal scrutiny on elections officials.

Howard noted that although support for elections officials in their individual capacity typically falls outside of a county attorney’s responsibility, several organizations offer pro bono counsel. 

Watkins advised elections officials to clearly mark transitions between public spaces and office areas where confidential information is kept, and to ensure that confidential information is not visible through windows.

Former U.S. Attorney for Arizona Gary Restaino outlined the various requests and demands elections officials could receive: 

• A request for a voluntary interview 
• A letter request for documents 
• Administrative subpoenas, issued by agents without oversight from prosecutors 
• Grand jury subpoenas, which have a little more presumption of regularity, 
• Search warrants, authorized by a court. 

Watkins said planning with staff could help offset some problems if issues do arise.

“You should familiarize your staff with what a judicial warrant looks like, and designate staff members who will interact with law enforcement,” he said. 

Gates noted that there’s often strategy behind the filings.

“It’s not always documents that they want. Sometimes they want to subpoena you to come and testify. And after a while, we said, ‘You know what? We’re just going to send our lawyer down there to testify in front of the committee.’ And guess what? They didn’t want to hear from our lawyer.”