ELECTION WARNING: DOJ Threatens Criminal Penalties for Officials Who Fail to Preserve Midterm Voting Records
The Justice Department has issued a warning to election officials across the country just days before Tuesday’s midterm elections, reminding them that deliberately failing to preserve federal voting records is a criminal offense that can result in up to one year in prison.
The letters, sent Thursday and signed by acting Deputy Attorney General Trent McCotter, cite a federal statute enacted in 1960 requiring election authorities to retain records connected to federal elections for 22 months. Under that requirement, documents from the November 3 election must remain preserved through September 2028.
In correspondence addressed to Colorado Secretary of State Jena Griswold, McCotter specified that the preservation requirement covers voter registration applications, polling-place records, voter sign-in sheets, absentee ballot requests, mail-in ballot envelopes and completed ballots.
The Justice Department emphasized that the obligation extends beyond statewide election administrators to county clerks and other local officials responsible for conducting federal elections.
“It is a crime to willfully fail to comply with Section 20701,” McCotter wrote.
To illustrate the importance of maintaining complete election records, the letter referenced several historically close contests, including a California congressional race decided by just 187 votes in 2024 and the 2000 presidential election, when George W. Bush carried Florida by 537 votes.
By Friday, election authorities in at least 12 states had acknowledged receiving the notice or made copies publicly available. Those states included Colorado, Florida, Georgia, Michigan, New York and Wisconsin.
Although the Justice Department did not specify how many jurisdictions received the correspondence, officials familiar with the distribution reportedly indicated that the letters were being sent to all 50 states.
A department spokesperson described the mailing as a reminder of existing legal responsibilities rather than the announcement of a new enforcement policy. Federal prosecutors rely on election documentation when investigating suspected illegal voting, registration violations and other potential election offenses.
“We are simply reminding them of their obligation under federal law to preserve these documents,” the spokesperson said.
Election administrators from both major political parties responded that their offices already follow the federal record-retention requirements.
“We already comply with what the letter states,” Florida Secretary of State Cord Byrd, a Republican, said.
Washington Secretary of State Steve Hobbs’ office, led by a Democrat, similarly indicated that election materials would continue to be maintained in accordance with applicable state and federal statutes.
Some former federal officials nevertheless questioned the timing and presentation of the warning. Justin Levitt, who previously served in the Justice Department and later advised the Biden White House on voting rights, said he was unaware of a comparable nationwide mailing in the past.
Levitt acknowledged that the department had the authority to send such a notice but argued that its emphasis on criminal consequences raised questions about its purpose.
The letter “certainly looks like it’s meant to intimidate rather than to inform,” he said.
The warning arrives as the Trump administration pursues a separate election-related legal dispute with California over voter eligibility.
Earlier in October, McCotter directed California officials to examine a federal list containing as many as 20,000 individuals suspected of being noncitizens registered to vote. The state was given 48 hours to conduct the review, and the Justice Department filed suit after that deadline expired.
Federal prosecutors subsequently asked a court to require California to separate ballots associated with the disputed registrations while their eligibility was investigated.
U.S. District Judge David O. Carter rejected the request Wednesday, warning that the proposed action could interfere with voting rights.
“Once a vote is segregated, lasting harm has occurred,” Carter wrote.
The Justice Department appealed, but a divided panel of the Ninth Circuit Court of Appeals refused Friday to order California to isolate the ballots. In a 2-1 decision, the judges concluded that the proposed measure risked disrupting election administration and potentially preventing eligible voters from having their ballots counted.
Federal investigators have also reportedly issued grand jury subpoenas to California election officials as part of their examination of voting records and registration practices.
