resolve election disputes and answer challenges to the fairness of
elections. 36
For this reason, a detailed discussion of Section 20701 and its
application to particular types of election documentation generated in
the current age of electronic voting follows.
(a) Legislative purpose and background
The voting process generates voluminous documents and
records, ranging from voter registration forms and absentee ballot
applications to ballots and tally reports. If election fraud occurs, these
records often play an important role in the detection and prosecution of
the crime. Documentation generated by the election process also plays
an equally important role in the detection, investigation, and
prosecution of federal civil rights violations.
State laws generally require that voting documents be retained
for sixty to ninety days. Those relatively brief periods are usually
insufficient to make certain that voting records will be preserved until
more subtle forms of federal civil rights abuses and election crimes
have been detected.
In 1960, Congress enacted a federal requirement that extended
the document retention period for elections when federal candidates
were on the ballot to twenty-two months after the election. Pub. L.
86-449, Title III, § 301, 74 Stat. 88; 52 U.S.C. §§ 20701–20706. As
noted above, this documentation retention requirement is backed-up
with criminal misdemeanor penalties that apply to election officers or
other persons who willfully destroy covered election records before
the expiration of the federal retention period.
Indeed, the federal courts have recognized that the purpose of this federal document
retention requirement is to protect the right to vote by facilitating the investigation of illegal
election practices. Kennedy v. Lynd, 306 F.2d 222, 228 (5th Cir. 1962).
36
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