Fulton County officials say FBI seizure of election records violated U.S. Constitution

Fulton County officials have filed an amended motion for what they say were "improperly seized" election records taken when the FBI searched their offices in January.

In a filing submitted on Tuesday morning in the U.S. District Court for the Northern District of Georgia, county officials argued that the search warrant used by federal investigators was "unprecedented in American history."

Lawyers representing the county pointed to the recently unsealed FBI affidavit as evidence that the search warrant that allowed investigators to enter Fulton County's election hub was "equally unprecedented in its theory of probable cause" and led to the only copy of its 2020 election results being unjustifiably seized.

"Despite years of investigations of the 2020 election, the Affidavit does not identify facts that establish probable cause that anyone committed a crime. Instead, FBI Special Agent Evans (the "Affiant") all but admits that the seizure will yield evidence of a crime only if certain hypotheticals are true," the county argued. "Unsupported by probable cause and dependent on unsubstantiated hypotheticals, Respondent's seizure violated the Fourth Amendment."

The county also alleges that the affidavit primarily described "human errors that its own sources confirm occur in almost every election," as well as omitting the fact that the conduct described was investigated and shown to be unintentional.

Fulton County officials called the seizure in "callous disregard" of the Fourth Amendment, used mainly to "circumvent a pending civil lawsuit in which it requested the same records."

The petitioners are asking the court to immediately return all materials that were seized during the search and all copies, as well as to verify exactly what was taken and copied.

A controversial search and seizure in Fulton County

On Jan. 28, FBI agents arrived at the elections hub just south of Atlanta with a search warrant seeking documents related to the 2020 election in Fulton County, including: all ballots, tabulator tapes from the scanners that tally the votes, electronic ballot images created when the ballots were counted and then recounted, and all voter rolls. 

According to the affidavit released last week, the search came as part of an ongoing "FBI criminal investigation into whether any of the improprieties" alleged around the county's handling of the 2020 election "were intentional acts that violated federal criminal laws." The investigation was initiated by a referral from attorney Kurt Olsen, who now serves as President Trump's "director of election security and integrity" overseeing the attempt to investigate Mr. Trump's loss.

The document lists multiple possible "deficiencies or defects" in the Fulton County vote count, including the county's admission that it does not have scanned images of all the ballots counted during the original count or the recount. Fulton County has also confirmed that some ballots were scanned multiple times during the recount.

"If these deficiencies were the result of intentional action, it would be a violation of federal law regardless of whether the failure to retain records or the deprivation of a fair tabulation of a vote was outcome determinative for any particular election or race," the affidavit reads.

Investigations into complaints by the secretary of state's office, an independent monitor, and a performance review by the state elections board found that the county had "sloppy processes" and disorganization but no evidence of any fraud or illegal actions that would have affected the election result.

The Associated Press and previous CBS News reporting contributed to this report.