The Justice Department sent letters on October 29 to election officials in all 50 states reminding them that federal law requires them to keep election records for 22 months after the November 3 midterm and warning that willful failure to do so is a crime.
The letters came from the Office of the Deputy Attorney General and were signed by Acting Deputy Attorney General R. Trent McCotter. The copy sent to Colorado Secretary of State Jena Griswold was published by Democracy Docket, which reported that the Michigan, Minnesota and Wisconsin versions are virtually identical. "Election Day is fast approaching," the letter begins, and it states that "It is a crime to willfully fail to comply with Section 20701."
What the law says
The statute is 52 U.S.C. 20701, one of the records provisions that trace to Title III of the Civil Rights Act of 1960. It requires officers of election to "retain and preserve, for a period of twenty-two months from the date of any general, special, or primary election" the covered registration and voting records, for any election in which voters choose a President, Vice President, presidential elector, Senator, member of the House or the Resident Commissioner from Puerto Rico.
The letters list the kinds of records officials should keep, including completed registration forms, pollbooks, precinct sign in sheets, copies of voter identification, mail ballot requests and envelopes, and the ballots themselves.
Two companion sections give the law its teeth. Under 52 U.S.C. 20702, anyone, election officer or not, who willfully steals, destroys, conceals, mutilates or alters a covered record faces the same penalty as an officer who fails to keep one. Under 52 U.S.C. 20703, the Attorney General may demand in writing to inspect and copy the preserved records, with a statement of the basis and purpose for the demand. Democracy Docket noted that the letters do not invoke that inspection power.
Our arithmetic on the deadline and the penalty
Counting 22 months from November 3, 2026, the retention period for this election runs to September 3, 2028. By our count that is 65 days before the November 7, 2028 presidential election, so the records from these midterms must be kept through almost all of the next presidential campaign.
The statute's own penalty is a fine of not more than $1,000, up to one year in prison, or both. Federal sentencing law treats an offense with a maximum of one year as a Class A misdemeanor under 18 U.S.C. 3559, and 18 U.S.C. 3571 sets the general fine ceiling for an individual convicted of a Class A misdemeanor that does not result in death at $100,000. A lower fine written into a specific statute controls only if that statute expressly exempts the offense from the general fine rules. On our reading, nothing in Section 20701 does that, which would make the real exposure up to $100,000, a hundred times the number printed in the statute.
Why the letters matter now
Record retention is routine for election offices, and the 22 month rule is decades old. What is new is the delivery. The letters arrived five days before Election Day, cite criminal penalties, and follow months of federal demands for voter data and grand jury subpoenas for voter records in at least 13 states.
The department has told a federal judge that the letters went to every state on October 29 and that they are separate from the voter specific demands at issue in a Democratic lawsuit before Chief Judge James Boasberg, because they do not ask any state to remove a voter or withhold a ballot. The Democrats in that case cite the letters as part of what they call a pressure campaign on election officials. We explain that case and the five states the government says received formal demands.
For election officials, the practical message is simple. Every ballot envelope, pollbook and registration form tied to Tuesday's vote has to survive until September 2028, and the Justice Department has now put that obligation in writing, with the criminal penalty attached.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
