The Justice Department has sent letters to state election officials across the country warning that they could face criminal prosecution if they willfully fail to preserve ballots and other election records for 22 months after a federal election. The letters, dated Oct. 29 and signed by acting Deputy Attorney General Trent McCotter, come days before the midterm elections, and officials familiar with the correspondence said they appear to have been sent to all 50 states.
The letters invoke a federal record-keeping law, stating that "it is a crime to willfully fail to comply with Section 20701" and that "such a failure is punishable by up to a year in prison and a $1,000 fine." They also warn that it is unlawful to willfully steal, destroy, conceal, mutilate or alter election records.
The mailing is the latest in a series of warnings from the Trump administration to state election officials, and it landed two days after a federal judge in California admonished the administration for threatening election officials in a separate dispute over ballots cast by suspected noncitizens. During a hearing Tuesday, U.S. District Judge David O. Carter said "this court believes it would be wise that any threats to state and county elected employees cease immediately." In a written ruling Wednesday, Carter rejected the Justice Department's attempt to force California to set aside ballots from roughly 20,000 voters and reiterated: "These threats must stop."
Election law experts questioned the timing and purpose of the nationwide mailing. Justin Levitt, a former Justice Department official and voting rights adviser under President Joe Biden, said he was unaware of any precedent for sending such a reminder to election officials nationwide, and that it "certainly looks like it's meant to intimidate rather than to inform." Such reminders are not inherently improper, he said, "but it's super weird that the deputy sent this letter, and it's super weird he sent the letter to everybody." Joshua Douglas, an election law professor at the University of Kentucky, said he had never seen the department send this kind of letter across the country in the days before an election. "At least they aren't targeting based on politics, but it feels very unnecessary and creates confusion," he said.
The October letters are the third round of warnings this year. A July mailing warned officials they could face prosecution for knowingly allowing noncitizens to vote, and September letters threatened civil or criminal penalties for failing to preserve records from the 2024 election, directed at 29 states and Washington, D.C. The assistant attorney general overseeing the civil rights division, Harmeet Dhillon, described those September notices at the time as standard litigation practice rather than threats. The new letters cite a preservation requirement dating to 1960 without identifying a particular violation or pending investigation, and were signed by McCotter, the department's second-highest-ranking official, who assumed the role in August.
McCotter has played a direct role in the department's election-related litigation. Earlier this month he signed letters to California officials, including Secretary of State Shirley Weber and Los Angeles County Registrar Dean Logan, demanding they investigate a federal list of suspected noncitizens who had received mail ballots. The department then sued California, asking a judge to bar the state from counting ballots from voters on the list. State and county officials disputed the accuracy of the list, saying it included U.S. citizens and people who were not registered to vote. Carter rejected the department's request, and the department has appealed and issued grand jury subpoenas to California election officials.
Votebeat asked the Justice Department why the letters were sent days before Election Day, why McCotter personally signed them and whether similar reminders had been issued before previous federal elections; the department had not responded as of publication. A federal judge in Washington also ordered the department on Thursday to disclose which states had received letters demanding that ballots from suspected noncitizens be set aside.
Analysis
Why This Matters
- The letters put election officials in every state on notice of potential criminal liability during the final days of midterm campaigning, adding a new pressure point to an already demanding period.
- They mark the third round of Justice Department warnings this year and extend a broader administration push over election administration, including the California dispute now before the courts.
- Federal judges have openly pushed back, and the appeals and subpoenas in the California case could determine how far the department can go in directing state election procedures.
Background
Federal law has required election officials to preserve ballots and voter records for 22 months after a federal election, a requirement dating to 1960. The new letters do not cite a specific violation or pending investigation. They follow earlier warnings over noncitizen voting and the preservation of 2024 records, and come as the Justice Department is separately seeking to set aside ballots in California cast by voters on a federal list of suspected noncitizens, a list state officials say is inaccurate.
Key Perspectives
- Justice Department: warns in letters signed by acting Deputy Attorney General Trent McCotter that willful failure to preserve election records is a crime punishable by up to a year in prison and a $1,000 fine.
- Judge David O. Carter: said threats to state and county election employees must stop, and rejected the department's request to set aside California ballots, finding the intervention could disrupt voting and prevent eligible citizens from having their ballots counted.
- Justin Levitt, former Justice Department official: says the nationwide reminder appears meant to intimidate rather than inform, and that he knows of no precedent for it.
- Joshua Douglas, University of Kentucky law professor: says the letters create confusion and are unnecessary at a demanding time, imposing no new legal requirements.
- California state and county officials: disputed the accuracy of the federal list of suspected noncitizens, saying it included U.S. citizens and people not registered to vote.
- Harmeet Dhillon, assistant attorney general: described earlier September preservation notices as standard litigation practice, not threats.
What to Watch
- Whether the Justice Department explains the timing of the letters and whether similar reminders are sent before future federal elections.
- The progress of the department's appeal and grand jury subpoenas in the California ballot dispute.
- A federal judge's order requiring the department to disclose which states received letters demanding ballots from suspected noncitizens be set aside.
Checked
12 claims in this story checked against 1 source: 12 supported.
Show each claim
- SupportedThe DOJ again warned election officials of possible prosecution over records days before the midterms.Spotlight PA: “DOJ again warns election officials of potential criminal prosecution, days before midterm elections.”
- SupportedThe acting deputy attorney general signed letters citing a 22-month ballot-preservation duty, and a judge admonished the Trump administration over election threats.Spotlight PA: “the Justice Department has sent yet another round of letters to state election officials warning them that they could face criminal prosecution for violating federal election laws, this time reminding them that they must preserve ballots, voter-registration records, and other election materials for 22 months after a federal election.”
- SupportedThe letters warn that officials could face criminal prosecution if they willfully fail to preserve ballots and other election records for 22 months after a federal election.Spotlight PA: “they must preserve ballots, voter-registration records, and other election materials for 22 months after a federal election.”
- SupportedThe letters were dated Oct. 29 and signed by acting Deputy Attorney General Trent McCotter.Spotlight PA: “Multiple state election offices confirmed to Votebeat that they received identical letters dated Oct. 29 and signed by acting Deputy Attorney General Trent McCotter.”
- SupportedOfficials familiar with the correspondence said the letters appear to have been sent to all 50 states.Spotlight PA: “Officials familiar with the correspondence said the letters appear to have been sent to all 50 states.”
- SupportedThe letters say, “It is a crime to willfully fail to comply with Section 20701” and that failure is punishable by up to a year in prison and a $1,000 fine.Spotlight PA: ““It is a crime to willfully fail to comply with Section 20701,” the letter said, according to a copy provided to Votebeat. Votebeat also viewed letters sent to other states, which were identical. “Such a failure is punishable by up to a year in prison and a $1,000 fine.””
- SupportedAt Tuesday’s hearing, Judge David O. Carter said, “this court believes it would be wise that any threats to state and county elected employees cease immediately.”Spotlight PA: ““This court believes it would be wise that any threats to state and county elected employees cease immediately,” U.S. District Judge David O. Carter said during Tuesday’s hearing.”
- SupportedIn a written ruling Wednesday, Carter rejected the DOJ’s attempt to set aside ballots from roughly 20,000 voters and said, “These threats must stop.”Spotlight PA: “In a written ruling Wednesday , Carter rejected the DOJ’s attempt to force California to set aside ballots from roughly 20,000 voters and reiterated his warning: “These threats must stop.””
- SupportedJustin Levitt said he was unaware of precedent for a nationwide reminder and that it “certainly looks like it's meant to intimidate rather than to inform.”Spotlight PA: “Justin Levitt, a former Justice Department official and White House voting rights adviser under President Joe Biden, said he was unaware of any precedent for sending such a reminder to election officials nationwide. “Election officials know that they have an obligation to comply with this law — they know that real, real well — and this certainly looks like it's meant to intimidate rather than to inform,” Levitt said.”
- SupportedJoshua Douglas said, “At least they aren't targeting based on politics, but it feels very unnecessary and creates confusion.”Spotlight PA: ““At least they aren’t targeting based on politics, but it feels very unnecessary and creates confusion,” he said.”
- SupportedThe October letters were the third round of warnings this year; July warnings concerned noncitizens voting, and September letters threatened penalties over preserving 2024 election records and went to 29 states and Washington, D.C.Spotlight PA: “A July mailing warned officials they could face prosecution for knowingly allowing noncitizens to vote, while September letters threatened civil or criminal penalties for failing to preserve records from the 2024 election. The September letters, signed by Eric Neff, the acting chief of the division’s voting section, directed 29 states and Washington, D.C.”
- SupportedA federal judge in Washington ordered the department on Thursday to disclose which states received letters demanding that ballots from suspected noncitizens be set aside.Spotlight PA: “On Thursday, a federal judge in Washington ordered the department by noon today to disclose which states had received letters demanding that ballots from suspected noncitizens be set aside.”