Justice Department warns election officials in all 50 states of prison time over ballot records days before midterms
The Justice Department has sent letters dated 29 October to election officials in all 50 states warning that willfully failing to preserve federal election records for 22 months is a crime punishable by up to a year in prison.
The United States Department of Justice has warned election officials in all 50 states that they could face criminal prosecution if they fail to preserve ballots and other federal election records, in letters sent just days before the midterm elections on Tuesday, 3 November.
The letters, dated Thursday, 29 October and signed by Acting Deputy Attorney General R. Trent McCotter, remind officials that federal law requires them to preserve records connected with a federal election for 22 months. That list includes completed voter registration forms, poll books, precinct sign-in sheets, copies of identification documents, mail-ballot requests and envelopes, and the ballot itself, whether it was cast by mail, through a drop box or in person.
The warning is stated in blunt terms. According to copies of the letters seen by election newsrooms, McCotter wrote: “It is a crime to willfully fail to comply with Section 20701,” referring to 52 U.S.C. § 20701. The same passage adds: “Such a failure is punishable by up to a year in prison and a $1,000 fine.” The letters also warn that it is unlawful to willfully steal, destroy, conceal, mutilate or alter election records.
The nationwide scope of the mailing was confirmed by the department itself in a court filing on Friday, obtained by Democracy Docket, which said the notices had been sent “to all states” on 29 October. Votebeat, a nonprofit newsroom covering elections, reported that multiple state election offices had confirmed receiving identical letters, and that copies obtained from Colorado, Michigan, Minnesota and Wisconsin were virtually identical.
One copy sent to Colorado, described in reporting on the letters, opens by pointing to how close some recent elections have been, citing a California congressional seat decided by 187 votes in 2024 and the 2000 presidential race, in which George W. Bush won Florida by 537 votes. The letter says the preservation duty falls on every county and local official running a federal election, not only on state-level offices.
Under the law cited in the letters, the attorney general can later demand access to records that officials were required to preserve, for inspection, copying and reproduction, under Section 303 of the Civil Rights Act of 1960. Applied to ballots cast on Tuesday, the 22-month rule would mean those records must be kept until September 2028.
The timing is what has drawn the most attention. The letters arrived four days before Election Day, at the end of a campaign in which early voting has already reached record levels, with nearly 48 million ballots cast before polling day. Election officials are now in the final stretch of preparing polling places, processing mail ballots and planning the count that follows Tuesday’s vote.
The mailing also followed a rebuke from a federal judge in a separate California dispute. Two days before the letters were sent, US District Judge David O. Carter rejected a Justice Department effort to set aside ballots from roughly 20,000 voters flagged as suspected noncitizens, and said during a hearing that threats against state and county election employees should cease immediately. Reporting on the new letters notes that they identify no particular violation or pending investigation.
Critics of the move have questioned why a fresh nationwide warning was needed so close to the election. Votebeat’s editorial director, Jessica Huseman, highlighted the timing in a post noting that the department was sending the letters four days before Election Day, while Justin Levitt, a former Justice Department official, questioned the department’s motives. Supporters of the department’s position, by contrast, would describe the letters as a routine reminder of a long-standing record-keeping duty, intended to protect the ability to check results afterwards.
The department has sought to draw a line between the new letters and its other election litigation. In its Friday filing, it maintained that the preservation notices are separate from the voter-specific demands at issue in the lawsuit in which the filing was made. Officials familiar with the correspondence have described the letters as a standard nationwide advisory rather than an accusation against any individual state.
What happens next will largely be a matter of compliance and scrutiny. State and local officials must now ensure that the full range of records from Tuesday’s election is stored intact for the required period, while any dispute over access to those records, or over ballots themselves, is likely to play out in court in the days and weeks after the polls close.
