Fulton County’s Battle for Ballots: A Primer

The FBI went down to Georgia, looking for some ballots to seize.

Agents arrived at the Fulton County elections warehouse late in the afternoon on Jan. 28, armed with a court-authorized search warrant that sought evidence of election fraud and records retention crimes. By midnight, they had carried away hundreds of boxes containing the ballots of the more than 500,000 residents who voted in the 2020 election.

In searching for evidence of a crime in Fulton County, President Trump has, in some sense, returned to the scene of his own. Nearly six years ago, he tried to overturn the 2020 presidential election in Georgia, a state that he had lost. He was criminally indicted for those efforts, alongside 18 others, in Fulton County Superior Court. And the same conduct also featured in his federal indictment in Washington.

Now, more than a year into his second term as president and unburdened by the threat of prosecution, Trump is using the power of the federal government to seize the very ballots cast by voters whose will he once sought to subvert. Among the seized ballots may be those of Brad Raffensperger, the Georgia secretary of state whom Trump pressured to “find” 11,781 votes; Shaye Moss and Ruby Freeman, the election workers targeted by baseless fraud claims and violent threats in the wake of the election; or perhaps even the twelve grand jurors who, just a few miles down the road from the elections warehouse, agreed to indict Trump on 13 felony counts related to election interference.

All of which is why, in the days following the search, one had to wonder how the Justice Department managed to convince a magistrate judge to sign off on a warrant that would allow the federal government to seize half a million scraps of paper containing votes from a state’s long-settled election.

That is a question U.S. District Judge J.P. Boulee will confront on Friday in an Atlanta courtroom. The hearing—set for 9:00 a.m. on March 27—follows a motion filed by Fulton County election officials under Rule 41(g) of the Federal Rules of Criminal Procedure. The rule allows a person “aggrieved by an unlawful search and seizure of property or by the deprivation of property” to move for the property's return.

The county’s motion seeks the return of its seized election records on several grounds. It argues that the search warrant affidavit failed to establish probable cause and recklessly omitted material facts in violation of the Fourth Amendment. The filing also invokes the statute of limitations, contending that it has expired for the offenses identified in the warrant. And it asserts that the search infringes Georgia’s sovereign interests.

The Justice Department insists that there was nothing improper about the search. In its response filing, the government maintains that Rule 41(g) relief is available only in the narrowest circumstances—specifically, where the petitioner can show “callous disregard” for constitutional rights. Here, prosecutors insist that the warrant was supported by probable cause. In any event, they argue, Fulton County lacks Fourth Amendment rights to assert because the Fourth Amendment protects individuals, not political subdivisions of a state. Statute-of-limitations defenses, the government adds, do not negate probable cause and can be raised only by a defendant in a criminal case—not by a third party seeking the return of evidence during an ongoing investigation.

Ahead of Friday’s evidentiary hearing, the county has subpoenaed Hugh Raymond Evans, the FBI agent who swore out the affidavit, seeking to question him about the basis for the warrant.  The government, for its part, swiftly moved to vacate the hearing and to quash the county’s subpoena for Special Agent Evans’s testimony. Following a failed mediation between the parties, Judge Boulee opted to move forward with an evidentiary hearing, ruling that it is warranted because there are disputed questions of fact and the mere existence of a warrant “is not dispositive of the callous disregard inquiry under Rule 41(g).”

But the question of whether Evans will be compelled to testify remains unresolved. In his order declining to vacate the hearing, the judge said he would address the government’s request to quash Evans’s subpoena “in a later order.” At the time of this writing, that order has not yet been issued.

When the court turns to the merits of Fulton County’s motion, it has a doozy of a case on its hands. The warrant in question is indeed flawed in several different ways, some of them quite fundamental.

The Fulton County search warrant lists two criminal statutes: 52 U.S.C. §§ 20701 and 20511. Section 20701, enacted as part of the Civil Rights Act of 1960, requires election officers to preserve all voter registration records, and records of any “other act requisite to voting,” for 22 months after any federal election. A willful violation of that law is a misdemeanor punishable by up to a year in prison. Section 20511, part of the National Voter Registration Act of 1993, criminalizes voter intimidation, registration fraud, and the tabulation of ballots known to be fraudulent, carrying a maximum five-year prison sentence.

The affidavit’s theory of probable cause rests primarily on four categories of alleged “deficiencies” in the tabulation of the 2020 election or subsequent recounts. In each instance, the affidavit appears to misunderstand or mischaracterize key aspects of the election process, fails to plausibly allege the requisite criminal intent, relies on claims from poorly credentialed sources that prompted well-publicized investigations, or omits references to the ultimately benign conclusions reached by qualified investigators.

A close look at the warrant and its supporting documentation reveals a mess of recycled conspiracy theories and conspicuous omissions that genuinely warrant judicial scrutiny.

“Missing” Ballot Images

The affiant’s evidence to establish probable cause for a Section 20701 violation appears to rest almost entirely on the claim that there were thousands of “missing ballot images” from the original count and machine recount in Fulton County.

To understand the government’s claim, it helps to have a basic grasp of the voting process in Georgia. On Election Day, Georgians select their preferred candidates on a touchscreen voting machine. The machine then prints a paper ballot, which includes a list of the voter’s choices and a machine-readable QR code. Before the voter exits the polling place, he or she places the paper ballot inside a scanner, which reads the QR code to “count” the voter’s selections.  Those selections are tallied and stored on a memory card in the machine. Once the scanning process is complete, the paper ballot is deposited in a tray inside the scanner.  The paper ballots are stored so that they can be re-scanned or tallied by hand to confirm the accuracy of the election results in the event of an audit or recount.

So where do ballot images fit in with all this? When a voter scans his or her paper ballot, the scanner can be configured to generate what’s called a “ballot image”—basically, a digital copy of the physical paper ballot that the machine scanned and counted.

Importantly, the creation of a ballot image is not necessary for a voter to cast a vote or to have that vote counted. The scanner does not “read” a ballot image to tally the voter’s selections. The scanner reads the paper ballot itself. In the event of a recount, it’s the paper ballots, not the ballot images, that are re-scanned and used to tabulate the official results. During the 2020 election in Georgia, paper ballots were used to tabulate results across three separate counts: the original count following Election Day, a hand-counted audit, and a recount that took place in early December. The images, in other words, are not the ballots. They are just electronic copies.

In its affidavit, the government does not bother to explain what a ballot image is, but it does allege that thousands of them are “missing.” That raises a threshold question: Are ballot images even subject to the preservation requirements under Section 20701 in the first place? Remember, Section 20701 requires election officials to preserve, for a period of 22 months, “all records and papers which come into his possession relating to any application, registration, payment of poll tax, or other act requisite to voting in such election.”

Fulton County’s amended petition contends that ballot images don’t count as records subject to retention under this provision of the statute—and it may well be correct on this point, though the filing does not fully elaborate the reasoning. A ballot image is a "record or paper,” but it is not related in any meaningful sense to a voting “application,” “registration,” or “payment of poll tax.” So the question is whether a ballot image relates to some “other act requisite to voting.” Both the history and the text of the statute suggest that it does not.

Let’s start with the history. As Judge David Carter recently explained in United States v. Weber, Title III of the Civil Rights Act of 1960 was enacted in the Jim Crow era, when many states employed literacy tests, arbitrary registration procedures, voter identification laws, and poll taxes to exclude Black voters. In an effort to conceal these voter suppression tactics, some state officials destroyed application or registration records of Black Americans. The 1958 bipartisan Commission on Civil Rights reported that even when such records were not destroyed, states frequently refused to provide them to federal authorities, thereby obstructing investigations into systematic disenfranchisement. Title III was enacted in direct response to these abuses, suggesting that the statute’s primary purpose was to safeguard records bearing on voter eligibility and access—not records of every single digital artifact generated during the tabulation process.

The text of the statute reinforces this. Section 20701 explicitly demands preservation of records relating to an “application, registration, [or] payment of poll tax”—each of which pertains to a voter’s qualification and ability to cast a ballot. The final phrase, “other act requisite to voting,” follows those specific terms. So “other act requisite to voting” should logically be interpreted as confined only to acts similar in nature to applying, registering, or paying a poll tax—that is, acts related to voter qualifications. If so, a ballot image—created after a qualified voter has already cast a ballot—would fall outside the statute’s scope.

Even if the statute were construed more broadly, it remains limited by the phrase “requisite to voting,” which is to say “acts” that are essential preconditions to actually casting a vote. The creation of a ballot image does not meet that description. While ballot images can serve an important function in ensuring transparency and auditability of an election, they are not essential to the voting process itself.

No federal court appears to have directly addressed the question of whether ballot images fall within the scope of Section 20701. However, at least three Republican-appointed justices of the Supreme Court have recently suggested, in construing nearly identical statutory language, that the phrase “other act requisite to voting” does not encompass every step in the broader voting process—and may not even include the act of voting itself. On that view, it is difficult to see how the creation of a digital image that is neither required to cast a ballot nor necessary to count it could qualify as an “act requisite to voting.”

Given this substantial uncertainty about the statute’s scope, one might expect the government to adduce some factual support for the idea that ballot images are records related to an “act requisite to voting.” But the government does not. Instead, the affidavit largely assumes the point, treating ballot images as self-evidently covered by the statute’s retention requirements.

What, then, does the government actually allege in support of its “missing ballot images” allegation? The affidavit states that Fulton County has “admitted that it does not have scanned images of all the 528,777 ballots counted during the Original Count or the 527,925 ballots counted during the Recount.” At another point, the affiant asserts the following: “During a Civil Action in the United States District Court for the Northern District of Georgia, Fulton County Board of Registration and Elections admitted it has not preserved the majority of ballot images from in-person voting for the November 3, 2020, Original Count.”

These allegations are accurate insofar as Fulton County has acknowledged it did not retain the majority of ballot images from the original count and that it does not have scanned images for all ballots counted during the recount.

The difficulty for the government on this point is temporal. Section 20701 requires election records to be preserved for 22 months following the election. For the Nov. 3, 2020 election, that period expired on Sept. 3, 2022. But the affidavit specifies no timeframe for the county’s admissions. It merely asserts that, at some unspecified time, Fulton County acknowledged that it has not preserved all ballot images. Without an allegation that the county’s failure to preserve records occurred before the retention deadline, these admissions do not on their face reveal anything about whether or not a crime has been committed.

The affidavit also cites the research of “Witness 1,” who is described as a chemical engineer and instructor at a technical college in Georgia. That description appears to match Joe Rossi, an “election integrity” activist who teaches at Central Georgia Technical College. The affidavit states that Rossi began “conducting research and analysis on elections” following the 2020 election. Other than that, it does not say whether he has any experience, qualifications, or training related to Georgia elections processes.

According to the affidavit, the Georgia Secretary of State’s Office released ballot images of absentee ballots cast in the 2020 election. The affidavit does not specify whether this release included absentee ballot images from Fulton County or, for that matter, whether the released images represented the complete set retained by the county. Nor does it indicate whether the images were drawn from the original count or the subsequent recount.

The affidavit states that Rossi reviewed these images and “discovered” that the “number of ballot images did not reconcile with the total number of ballots cast.” It provides no description of the methodology used to reach that conclusion, but it appears to imply that he compared the number of publicly available absentee ballot images to the reported total number of ballots cast.

Notably, comparing those figures would not demonstrate that ballot images are missing. Only a portion of voters cast absentee ballots. As such, a comparison between the number of absentee ballot images and the total number of ballots cast—which includes absentee ballots, in-person Election Day ballots, and other categories of ballots—would inevitably yield a discrepancy.

The affidavit next states that Rossi filed a complaint with the State Election Board on July 8, 2022—the only allegation in this section that occurs within Section 20701’s preservation period. As the affidavit acknowledges, Rossi’s complaint was investigated by trained election investigators with the Georgia Secretary of State’s Office. The findings of that investigation were presented to the State Election Board on May 7, 2024, and resulted in a letter of reprimand issued to Fulton County. The affidavit, however, here omits a critical detail: The letter of reprimand made no specific findings regarding Rossi’s claim of missing ballot images. Instead, it addressed other issues raised in his complaint.

At this point in the affidavit, the government has yet to present any evidence that anyone willfully violated Section 20701—a statute that requires an intentional failure to comply with its preservation mandate. And, remarkably, the affidavit’s description of the statute omits the intent requirement entirely. It recites that Section 20701 “requires election officers to retain election records for 22 months” and lists the categories of records covered, but it never mentions the statute’s explicit language that an elections official must “willfully” fail to maintain those records in order to violate the statute. In doing so, the affidavit gives the impression that Section 20701 is a strict-liability crime.

Despite this glaring omission, the government’s factual allegations give the impression that it is well aware of Section 20701’s mens rea requirement. It attempts to supply evidence of intent by shifting its focus to “Witness 2” and “Witness 3,” whose descriptions appear to match that of two MAGA-aligned State Election Board members, Janice Johnston and Janelle King, respectively. The trouble is that their accounts, as described, do not supply credible evidence of willfulness.

With respect to Johnston, the affidavit states that she began reviewing ballot images in-person at the Georgia Secretary of State’s Office following the May 7, 2024, presentation of Rossi’s complaint before the State Election Board. According to the affidavit, the Georgia Secretary of State’s Office provided Johnston with a laptop that had two flash drives in it. Next to the laptop was a note that allegedly read as follows: “Vince must have miscounted. Only 15,464 ballot images. Short of 17,774 by 2,310.”

The affidavit does not explain who “Vince” is or how a possible miscount of ballot images on a laptop in 2024 is evidence of intentional destruction of those materials during the 22-month retention period following the 2020 election.

The affidavit further states that Johnston observed that the “SHA files”—a form of metadata associated with an electronic record—were missing from the ballot images she reviewed at the Georgia Secretary of State’s Office. This was a “red flag” to her that someone had manipulated the data, and she believed that removal of the files were an “intentional” act by someone.

These facts do not suffice to establish probable cause of intentional failure to comply with Section 20701. For one thing, Johnston reviewed the ballot image files in 2024, well after the statutory retention period expired. The affidavit does not show that SHA files were required to be retained, that Johnston ever requested them from the Georgia Secretary of State’s Office, or that they were actually missing from official recordkeeping systems rather than from the particular set of files she examined.

More importantly, Johnston lacks the technical expertise necessary to render reliable conclusions regarding these electronic files. She is a former obstetrician with no prior training or professional experience in digital forensics. The affidavit itself admits that she had no experience in examining SHA files prior to joining the State Election Board. And it admits that Johnston, when reviewing the files, did not even know if they were images from the original count or the recount. What’s more, her belief that the files were removed “intentionally” is just that—a belief. Probable cause cannot rest solely on a witness’s subjective inference, particularly when that inference concerns technical matters beyond the witness’s expertise.

The statements attributed to King, a conservative television personality and Johnston’s colleague on the State Election Board, fare little better. The affidavit characterizes her as “confirm[ing]” that ballot images were missing. According to the affidavit, she said that she “was not aware of a clerical or technical issue in which the images would be lost and if that did occur, it should be documented.”

Like Johnston, King’s statements do not suffice to establish probable cause of intentional failure to comply with Section 20701. Her purported “confirm[ation]” that ballot images are “missing” took place well after the retention period ended. Additionally, the affidavit explicitly notes that her knowledge on this point is not “first hand.” And her lack of awareness of a technical reason that could account for the lost images is not objective proof of willfulness.

The point here is not to suggest that the government’s allegation—that Fulton County failed to preserve all of its ballot images—is false. As noted, the county has admitted as much. But the allegations set forth within the four corners of the affidavit reflect a mishmash of post hoc concerns, speculative inferences, and unresolved discrepancies—not facts sufficient to establish a knowing and deliberate violation of federal law. 

There are also some pretty serious material omissions in the affidavit supporting the warrant. While a search warrant affidavit need not include every piece of information gathered in the course of an investigation, there are limits on what the government may omit. Under Franks v. Delaware, a warrant violates the Fourth Amendment if the affiant knowingly or recklessly includes false statements or omits facts that were necessary to the finding of probable cause.

Even if one could squint hard enough to find something that looks like probable cause in the document, Fulton County’s amended complaint argues that the affidavit’s omissions raise a separate reason why the search warrant may be invalid. 

With respect to the missing ballot images, the most striking omission concerns the findings of the prior investigation conducted by the Georgia Secretary of State’s Office—the very investigation prompted by Rossi’s complaint and presented to the State Election Board on May 7, 2024. Although the affidavit acknowledges that the investigation occurred and that the Board later issued a reprimand, it omits a critical point: Investigators did not find intentional wrongdoing and identified a non-criminal explanation for the purportedly missing ballot images.

That explanation was summarized by Charlene McGowan, general counsel for the Georgia Secretary of State’s Office, during the May 7, 2024, hearing referenced in the affidavit. She explained that the process in Fulton County in 2020 required election workers to remove the memory card from each scanner and upload the results into the centralized Election Management System. The memory card contained both the ballot image files as well as the “results” files—that is, the vote tallies generated when physical ballots are scanned. When importing the data, McGowan said election workers were provided with three options: “Load Results File,” “Load Ballot Images,” or “Load Log File.” Selecting the “Load Results File” was a mandatory option, McGowan said. But if election workers selected only that option, the ballot images would not be uploaded to the central server.

Importantly, failure to upload ballot images to the server does not mean that the images were intentionally destroyed or deleted. The files would still exist on the memory card. If the card were to be reused in a subsequent election, the files would be overwritten—but that would be a function of routine equipment reuse, not necessarily an intentional effort to destroy records. And according to McGowan, Fulton County in 2020 borrowed four scanners from a neighboring county for its recount. Those scanners have since been returned, she explained, and the memory cards that came with them have been redistributed and used in subsequent elections. 

The affidavit’s failure to disclose this alternative, non-criminal explanation may be significant. Under Franks, omissions are material when their inclusion would undermine probable cause. Here, disclosure that trained election investigators identified a routine administrative explanation—and did not find intentional misconduct—would substantially weaken any inference that records were willfully destroyed in violation of federal law, even if those records were covered by federal law at all. 

Other supposed omissions cited in the county’s amended petition are less persuasive. In a declaration filed in support of the county’s complaint, Ryan Macias—an election technology and security expert who advised Fulton County during the 2020 election—claims that the affidavit “does not disclose that the preservation of ballot images was not required by Georgia law in 2020.” In support of this claim, Macias cites statements made by McGowan during the May 7, 2024, State Election Board meeting, in which she similarly claimed that ballot images were not subject to preservation until 2021, when the Georgia general assembly enacted new election legislation under SB 202.

This claim, however, is not entirely accurate. While it is true that Georgia statutory law did not require preservation of ballot images in 2020, state election regulations did. Specifically, a State Election Board rule passed in January 2020 mandated that certain materials, including ballot images, must be consolidated and deposited with the clerk of the Superior Court at the conclusion of each election. Additionally, during the recount process, the Georgia Secretary of State’s Office issued a bulletin to county election officials with instructions “to include all ballot images with your election returns.” These details undercut the county’s suggestion that there was no state law preservation obligation whatsoever during the 2020 election.

None of which suggests that there was anything remotely criminal about the county’s apparent failure to preserve some of its ballot images. The regulation was relatively new at the time of the 2020 election, and county officials may not have been aware of or may have misunderstood its requirements. Notably, the rule also permits the re-use of memory cards following the expiration of the period for requesting a recount—meaning that any ballot images not backed up to the Election Management System would be overwritten in the ordinary course of equipment rotation. And, in any event, state law preservation requirements do not necessarily track with federal preservation requirements under Section 20701.

“Duplicated Ballots”

Turning to its next election “defect,” the affidavit alleges that thousands of ballots were scanned and counted more than once during the 2020 election in Fulton County. This allegation appears to be an effort to establish probable cause for a violation of Section 20511, which criminalizes the procurement, casting, or tabulation of ballots known to be “materially false, fictitious, or fraudulent” under state law.

The section of the affidavit devoted to this theory rests almost entirely on the work of “Witness 5,” whom the government describes as a “data analyst.” This likely refers to Philip Davis, a conservative election researcher who also runs a popular MAGA meme account on X under the handle “@Mad_Liberals.”

According to the affidavit, Davis reviewed digital ballot images he obtained secondhand from a website called “ZebraDuck.” The affidavit states that he was not involved in acquiring the records and was not certain of their provenance, though he believed they originated from an open records request to Fulton County.

The affidavit explains that Davis used a computer program to search for duplicate ballot images by identifying stray marks or other unique features that could serve as a kind of visual fingerprint for each ballot. Because hand-marked absentee ballots contain idiosyncratic markings, he determined that duplicates of such ballots could be matched. Based on this analysis, Davis concluded that some batches of ballots had been counted more than once in both the original count and the recount. 

The affidavit does not allege that any double-counting was intended to help Joe Biden win the presidential election. To the contrary, Davis is described as estimating that the inclusion of double-counted ballots would have resulted in Trump receiving roughly 10 percent more than his average share of the vote in Fulton County. His theory is that the double-counting was meant to align the recount totals with the original count, not to produce outcome-determinative fraud. According to the affidavit, such conduct would violate 52 U.S.C. § 20511.

Unlike many allegations in the affidavit, there is some credible extrinsic evidence to support Davis’s claim that some ballots were scanned or counted more than once. Independent election experts have identified similar irregularities. In a 2022 court declaration, for example, Philip Stark—a Berkeley professor and leading expert on election audits—found evidence that “thousands of Fulton County voters’ votes were included in the reported totals more than once.” Stark was not able to determine whether the duplicate counting was intentional or accidental.

The Georgia Secretary of State’s Office likewise found partial support for Davis’s findings. Its investigation identified 3,182 double-scanned ballot images from the Fulton County recount. Investigators stated, however, that they could not determine whether those ballots were actually included in the final results or were merely scanned more than once. Consistent with Davis’s findings, the Georgia Secretary of State’s Office has suggested that any net effect on the vote count would have been minimal and, if anything, would have tended to favor Trump, not Biden.

But the government does not include these details in its affidavit. Instead, it relies almost exclusively on Davis’s research, which it outlines only in broad terms and which it describes as based on secondhand data from a site named “ZebraDuck.”

The bigger problem, once again, is intent. Section 20511 requires that the accused knowingly and willfully deprived or attempted to deprive citizens of a fair election process by procuring, casting, or tabulating ballots that he or she knew to be false, fictitious, or fraudulent.

To that end, the affidavit characterizes Davis as finding that ballot images were “deleted” at approximately the same time that “duplicate votes” began to appear in the system, which he characterizes as “suspicious.” The affidavit does not describe how Davis arrived at the conclusion that ballot images were “deleted” or that the deletion occurred around the time that duplicate ballots began to appear in the “system.” Which system? The affidavit doesn’t say.

Beyond that, the affidavit cites Davis as concluding that “what he observed could be intentional but was not partisan” (emphasis added). This concedes uncertainty about whether the conduct was intentional at all.

Meanwhile, the only other witnesses cited in this section arrive at the opposite conclusion. “Witness 6,” a former investigator at the Georgia Secretary of State’s Office, is characterized as stating that investigators in his or her office looked into the claim and “concluded it was not intentional misconduct.” Additionally, Nadine Williams, the current director of registration and elections in Fulton County, attributed possible duplication of ballots to “human error.”

Altogether, it is genuinely baffling that a neutral magistrate could look at the face of the allegations in this section and determine that they establish reasonably trustworthy evidence of knowing and willful manipulation of election results. It actually does not even come close.

The affidavit’s “Duplicate Ballots” theory also omits critical details. For example, the affidavit does not explain the distinction between (1) ballots that have been scanned more than once, thereby producing more than one ballot image; and (2) ballots that have been counted—that is, included in the results—more than once, thereby resulting in more than one vote per voter. The distinction is an important one. As Macias, Fulton County’s elections expert, points out in his declaration, it is not uncommon for ballots to be scanned multiple times during an election, either because of paper jams, misloading of ballot batches, or other benign explanations. Multiple scans do not necessarily translate into a vote being counted multiple times.

To that end, the affidavit does not mention the specific findings of previous investigations that looked into the double-scanning or double-counting of ballots in Fulton County. For example, the bi-partisan Performance Review Board that examined the 2020 election process in Fulton County found that the explanations for double-scanning of ballots “likely include poor batch management and storage practices (also a contributing factor in errors in the hand-count audit and the recount), a time crunch created by the failure to utilize the early scanning period, and significantly heavier usage of central scanners due to the massive increase in absentee ballots resulting from the COVID-19 pandemic and a corresponding increase in paper jams.” Though the affidavit elsewhere mentions the Performance Review Board report, it does not cite these findings.

“Tabulator Tapes”

The affidavit really starts to go off the rails when it turns to a section entitled “Tabulator Tapes,” which alleges a variety of claims about supposed irregularities related to the printed records generated by ballot tabulation scanners at the close of polls. The allegations appear intended to establish probable cause related to a Section 20511 violation for the knowing tabulation of  “materially false, fictitious, or fraudulent” ballots.

The section begins by explaining that tabulator tapes are printed from each voting machine scanner once the machines are closed. The affidavit states that the tape “indicates how many votes were received for each candidate on that particular machine and how many total ballots were counted.” It also cites King, the conservative television personality and State Election Board member, as explaining that tabulator tape is “used as the ‘holy grail’ for the final count.” 

The key witness here is Clay Parikh, who is identified as having a background in “security and performance testing of voting machines.” The affidavit says Parikh is currently a “Special Government Employee” within the federal government.

According to the affidavit, Parikh reviewed images of certain tabulator tapes from the 2020 election that were produced by the county in response to an Open Records Act request. In reviewing those documents, he said he found that 16 tabulators “accounted for approximately 315,000 ballots.” He also claimed that one tabulator machine was used to close out 15 tabulators from 12 different locations. From this, he concluded that the memory cards were removed from the original tabulator and put in another tabulator to print out the closing tabulator tapes.

Parikh’s analysis purportedly “revealed that the protective counters on at least five tabulator tapes from the same unit were identical, and that some of the reported ballots scanned exceeded the protective counter number.” This indicated to Parikh that no ballots were ever scanned on those machines and that “the numbers generated from those ballots were by placing an unencrypted memory card into the unit to generate the closing tape.” According to the affidavit, he concluded that this “would have allowed an opportunity for the tabulation to be tampered with.”

The affidavit further asserts that, during a Dec. 9, 2025, meeting before the State Election Board, Fulton County admitted that tabulator tapes accounting for 315,000 ballots “were not properly signed,” as required by Georgia election regulations.

None of this comes close to establishing probable cause for a Section 20511 violation. Even taking the affidavit’s description of Parikh’s review at face value, his central conclusion is explicitly conditional: that the circumstances “would have allowed an opportunity” for tabulation to be tampered with. Speculation about a theoretical possibility is not objective evidence that a crime occurred.

More problematically, the affidavit provides a misleading impression that tampering with the tabulator tapes would result in changing the official results. It cites King as stating that tabulator tapes are used as the “holy grail” for the final count of votes. That is not accurate. Tabulator tapes, like ballot images, serve the important goals of transparency and auditability in an election. But they are not the mechanism by which official results are compiled. As McGowan explained during the May 7, 2024, State Election Board meeting cited elsewhere in the affidavit: “The tapes are produced by the precinct scanner after the polls have closed. They serve as a paper back-up to the memory card that stores ballot tabulation and are not part of the process by which official results are reported by counties to the Secretary of State.” 

The affidavit does not include this context, instead leaving the reader with the mistaken impression that tabulator tapes are used to tally official results.

“Pristine Ballots”

The affidavit unleashes the “Kraken” in a section titled “Pristine Ballots.” The central claim echoes allegations first advanced in Wood v. Raffensperger, one of the “Kraken” cases associated with Sidney Powell’s post-election litigation in 2020.

The “pristine ballots” allegation refers to ballots that poll watchers believed looked suspicious during the hand audit because they were not folded, as ballots placed in envelopes typically would be. In support of this claim, the affidavit cites “Witness 8” and “Witness 9,” whose descriptions match that of Suzi Voyles and Barbara Hartman, respectively. According to the affidavit, Hartman and Voyles worked at the same table during Georgia’s hand-count audit. Both recalled receiving a batch of 110 “pristine” ballots and claimed that 107 of those ballots had the exact same votes for a certain candidate on the ballot. The affidavit also includes other claims from a variety of witnesses, each of whom imply that county election officials fabricated ballots and processed them through scanners during the hand-count audit.

Here, the key issue is what the affidavit omits.

First, the document neglects to explain that there are several routine and well-documented reasons why a hand-marked ballot may be unfolded. Emergency ballots—issued to eligible voters at polling places when there is a problem with a ballot-marking device—are fed directly into scanners and therefore would not be folded. Certain military or overseas ballots, as well as damaged ballots that must be duplicated before scanning, likewise would not be folded prior to tabulation. In other words, the mere fact that a ballot appears “pristine” does not, standing alone, suggest impropriety.

Second, the affidavit fails to mention that both the Georgia Secretary of State’s office and the Georgia Bureau of Investigation conducted a detailed inquiry into the “pristine ballot” claims following the audit. Investigators interviewed the identified witnesses and examined the specific batches of ballots at issue. The investigation found no evidence that fabricated ballots had been inserted into the count, and no proof that the audit process had been manipulated. As their report concluded: “[A]fter interviewing all identified witnesses and reviewing identified batches of ballots, investigators could not substantiate the allegations of ‘pristine’ ballots being counted during the risk-limiting audit.”

*        *       * 

The affidavit supporting the Fulton County search warrant does not hold up under scrutiny. Its theory of probable cause relies on allegations that are legally uncertain, factually unsupported, or directly contradicted by prior investigations—investigations whose exculpatory findings it consistently omits. These and other deficiencies will be tested at the evidentiary hearing on Friday, as Judge Boulee considers whether they are sufficient to satisfy Rule 41(g)'s demanding “callous disregard” standard. That determination may hinge in part on whether the judge requires Evans to testify, potentially shedding light on what he knew—or should have known—when he swore out the affidavit supporting the warrant.

But what unfolds in Judge Boulee’s courtroom on Friday cannot address the deeper institutional questions this episode raises. A ruling returning the ballots would still leave unanswered how a warrant so fundamentally flawed—built on stretched legal theories and cherry-picked facts—cleared internal Justice Department review and received a magistrate’s approval to authorize the extraordinary seizure of ballots from more than half a million voters in a state whose election the president had sought to overturn.

Courts can return ballots. They cannot return confidence in the institutions that tried to take them in the first place.