Election Records: DOJ Sends Criminal Warning Letters to All 50 States

The Department of Justice is warning state election officials of potential criminal prosecution just days before the midterm elections, a move critics say adds pressure during a critical period. The letters, dated October 29 and sent to all 50 states, remind officials of existing federal laws regarding the preservation of election materials.

The correspondence cites Section 20701 of federal law, which requires the retention of ballots, voter registration records, and other election materials for 22 months after a federal election. The notice states that willfully failing to comply is a crime punishable by up to one year in prison and a $1,000 fine. It also warns that willfully stealing, destroying, concealing, mutilating, or altering election records is unlawful.

Acting Deputy Attorney General Trent McCotter, the department's second-highest-ranking official who assumed the role in August, signed the letters. Multiple state election offices confirmed to Votebeat that they received identical copies of the document. McCotter has recently been involved in election-related litigation, including a recent dispute with California over ballots cast by suspected noncitizens.

Legal experts question the timing and scope of the mailing. Justin Levitt, a former Justice Department official and White House voting rights adviser under President Joe Biden, stated that he was unaware of a precedent for such a nationwide reminder. Levitt noted that while officials know their obligations, the action appears intended to intimidate rather than to inform. He added that it is unusual for the deputy attorney general to sign such a letter and send it to every state simultaneously.

Joshua Douglas, an election law professor at the University of Kentucky, also questioned the timing. He said he had never seen the DOJ send this type of letter across the country in the days before an election. Douglas observed that while the letters do not impose new legal requirements, they create unnecessary confusion for officials who are already managing election day preparations.

The October letters are the latest in a series of communications from the Trump administration to state election officials. In July, a mailing warned of prosecution for allowing noncitizens to vote. In September, letters threatened civil or criminal penalties for failing to preserve 2024 election records. The Justice Department had not responded to Votebeat's questions about why the new letters were sent so close to Election Day or why McCotter personally signed them.

The nationwide mailing occurs as federal courts review other demands by the Justice Department. On October 29, a federal judge in Washington ordered the department to disclose which states had received letters demanding that ballots from suspected noncitizens be set aside. This follows a ruling in California where Judge David O. Carter rejected the DOJ's attempt to force the state to set aside ballots from roughly 20,000 voters.