How do state election record‑retention laws interact with the 22‑month federal preservation requirement?
Executive summary
federal-election-scheduling">Federal law requires election officers to retain and preserve "all records and papers" relating to acts requisite to voting for 22 months after any election in which federal offices appear on the ballot (52 U.S.C. §20701) [1] [2]. That federal minimum shapes — but does not wholly displace — state record-retention rules: states commonly adopt the 22‑month floor or longer schedules, retain custody and supervisory authority, and remain the primary implementers unless federal authorities invoke specific enforcement powers such as an Attorney General demand [3] [4] [5] [6] [7].
1. What the 22‑month federal rule actually requires
The statute codified at 52 U.S.C. §20701 compels "every officer of election" to keep records and papers related to registration, applications, ballot materials, and other acts requisite to voting for 22 months after covered elections; it also creates a penalty for willful destruction or concealment and authorizes the Attorney General to demand access for inspection, reproduction, and copying [1] [2]. Federal guidance from the Department of Justice has reiterated that the duty covers electronic records as well as paper, and that the obligation remains even if a state or local authority designates another custodian — the legal duty to retain "devolves" with custody arrangements and the underlying federal preservation obligation persists [8] [7].
2. How state laws and schedules fit around that federal floor
Most states adopt retention schedules that explicitly incorporate or mirror the federal 22‑month requirement for federal-election materials; state archives and local retention schedules often cite the federal statute when setting minimum retention periods and may impose longer periods or specific storage methods (examples: state retention schedules referencing 22 months; Brechner Center compilation; New York State Archives' practice) [3] [5] [4]. State statutes or administrative codes commonly specify which particular items must be held (ballots, pollbooks, tabulation materials) and where they must be kept, and some states provide for longer retention if state offices are on the ballot or for records of continuing administrative or historical value [9] [10].
3. Who controls custody and what happens when federal and state actors clash
Operational control and physical custody of election records remain principally a state or local responsibility; federal law does not grant blanket federal access to systems but does permit the Attorney General to issue a written demand for records and to seek judicial remedies for noncompliance [6] [2]. DOJ guidance frames federal involvement as limited and preservation‑focused — for instance, courts have ordered tailored federal seizures or access solely for preservation and subject to protective conditions — but the federal duty to retain can trump local practices in the sense that local custodians remain legally bound by the federal retention obligation even when custody is delegated [8] [6].
4. Practical implications for audits, post‑election requests, and destruction
Requests to examine or copy ballots and election materials must be handled with state law custody rules in mind while also respecting the federal 22‑month preservation floor; jurisdictions conducting post‑election audits or allowing third‑party access are advised to ensure continuity of retention and security to avoid potential federal-law violations [6] [8]. Where retention periods differ, many state schedules explicitly instruct that records preserved for federal legal requirements must remain intact and that destruction is prohibited while litigation, contests, or federal demands are pending [4] [10].
5. Limits of available reporting and unresolved questions
The available sources document the statutory floor, DOJ and EAC guidance, and how many states incorporate the federal requirement into their schedules, but they do not provide a complete catalogue of every state’s unique carve‑outs or a definitive legal analysis of federal preemption in hypothetical conflicts; therefore specific disputes over state actions in particular jurisdictions may turn on state statutory language, administrative rules, and case law not contained in the cited materials [1] [3] [5].