What federal statutes govern preservation and seizure of election records and how have courts ruled on them recently?
Executive summary
federal-programs-and-regulations">Federal law imposes specific retention and preservation duties for many federal-election records—most prominently a 22‑month retention requirement codified in 52 U.S.C. §20701/42 U.S.C. §1974—and federal guidance and case law have clarified that those duties extend to electronic materials and carry criminal penalties for willful destruction; courts and federal agencies have increasingly been asked to enforce those rules and to define the narrow circumstances under which outside actors may take custody or copies of election materials [1] [2] [3].
1. The core federal retention statute: what it requires and the penalty for violations
Congress requires “every officer of election” to “retain and preserve” all records and papers relating to any act requisite to voting for twenty‑two months after a federal election in which presidential or congressional candidates are voted for, and the statute includes a criminal penalty—fines and up to one year’s imprisonment—for anyone who willfully steals, destroys, conceals, mutilates, or alters those records (52 U.S.C. §20701/42 U.S.C. §1974 as reproduced in the U.S. Code) [4] [1] [5].
2. Scope of covered material and modern reach to electronic records
Federal officials and the Department of Justice interpret the statute broadly: the “records and papers” protected by Section 301 of the Civil Rights Act encompass not only physical papers but also records created in digital or electronic form, and the preservation duty can include materials that state or local officials create or maintain in connection with voter registration, ballots, and other acts requisite to voting (DOJ guidance on federal law constraints on post‑election audits; [2]; p1_s9).
3. Custody, deposit, and the limits on third‑party access or seizure
The statute contemplates situations in which election materials are deposited with a custodian and provides that the duty to retain and preserve devolves to the custodian in such circumstances, but it does not create an open license for private actors to remove or seize records; DOJ materials and statutory text emphasize judicial or legal process as the appropriate mechanism for transfer or supervised access, and warn that unauthorized removal can trigger federal criminal liability [1] [2] [3].
4. The Presidential Records Act and how presidential campaign/election materials differ
Separate federal law governs records of the President: the Presidential Records Act requires preservation of records documenting official duties, directs the Archivist’s role in custody and disposal, and expressly treats campaign or purely private election materials differently—those purely personal election files are not automatically presidential records and thus follow a distinct legal path for retention and access (Presidential Records Act overview; [7]; p1_s6).
5. How courts have applied and enforced these statutes recently
Federal courts and agencies have been active in enforcing preservation duties and interpreting adjacent federal statutes: the DOJ has cited Section 301’s retention requirement in guidance about constraints on post‑election audits and enforcement actions [2] [3], courts have recognized the preservation duty in litigation over election materials (examples cited by DOJ include Arizona Alliance for Retired Americans v. Clean Elections USA and historical litigation such as United States v. North Carolina Republican Party), and the federal appellate courts have contemporaneously weighed in on related federal election timing statutes—most notably the Fifth Circuit’s decision in Republican National Committee v. Wetzel addressing deadlines for when ballots must be both cast and received under 2 U.S.C. §7 and 3 U.S.C. §1, which the White House later referenced in policy guidance about enforcing uniform Election Day rules [6].
6. Where authorities disagree and what remains unsettled
Tension remains between state procedures (some state laws permit certain post‑Election Day processing or retention practices) and federal preservation mandates, and while federal guidance treats electronic and physical records similarly [2] [3], the precise contours of permitted third‑party access, the role of subpoenas or court orders to obtain records, and the interplay with state law record‑retention regimes produce disputed factual and legal questions that courts continue to resolve case‑by‑case [1] [2] [3].