The one sentence in Trump's election order that should rattle state officials

Deep inside the executive order on mail voting President Donald Trump signed March 31 is a technical-sounding line: “States and localities should preserve, for a 5-year period, all records and materials — excluding ballots cast — evidencing voter participation in any Federal election (e.g., ballot envelopes, regardless of carrier).”

This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access.

But the line is a bigger deal than it sounds like, should the executive order go into force (it’s currently facing four federal lawsuits asserting the president exceeded his authority with it).

Right now, federal law requires such records to be kept for 22 months. The order more than doubles that requirement, and does so without specifically defining what counts as evidence of “voter participation in any Federal election.”

That puts state and local election administrators in a familiar bind: trying to comply with a sweeping directive without clear boundaries, and without any obvious plan for how to store what could be a massive increase in materials. County budgets and state laws — and the realities of available physical and digital storage — weren’t built with this kind of expansion in mind.

The order’s use of the word “should” is telling, said David Becker, executive director of the Center for Election Innovation and Research and a former DOJ voting rights attorney. Taken as a whole, he argued, the order is broadly unconstitutional. And in this specific instance, its language appears to acknowledge a key limitation: the president cannot compel local jurisdictions to retain more election records than federal law requires.

The 22-month retention period in existing law was deliberately chosen, he said — long enough for investigators to pursue credible evidence, but finite, so election administrators can prepare for the next federal cycle.

“You can’t have every election that’s ever been held be stored constantly forever,” Becker said. “Paper takes up room, and voting machines have to be reprogrammed for the next election.”

The sentence in the order explicitly exempts cast ballots from the five-year retention period, though it isn’t clear why. The White House did not respond to a request to explain that. Still, the order would include storage of a wide range of materials that show a voter cast a ballot and how that ballot was processed. In practice, that could include envelopes with voter information and signatures, poll books and electronic check-in records, absentee ballot logs that show when ballots were sent and returned, provisional ballot envelopes and affidavits, and more.

Overwhelming numbers of boxes, bytes, and mandates

The scale of election record storage is already substantial. Across a federal election cycle, jurisdictions manage thousands of sealed boxes of ballots, envelopes, and related materials that must be securely stored and organized for potential audits. That amount of paper takes up a lot of space. In Fulton County, Georgia, for example, the FBI seized roughly 700 boxes of election materials related to the 2020 election from a single jurisdiction. That was just a subset of what Fulton County stores, and an even smaller subset of what the state stores. Across Georgia, thousands of boxes full of hundreds of thousands of pieces of paper from across every election held in the past 22 months are stacked and waiting. That helps illustrate the type of storage space that would be required to comply with this provision.

Available evidence suggests storage space is already a constraint, particularly for under-resourced jurisdictions. Many rural counties have few secure storage facilities that could accommodate this influx of paper, and some counties struggle even more to retain digital files.

Tammy Patrick is the chief program officer at the Elections Center, a resource hub and training center for local election officials. She told Votebeat this week that many elections offices “don’t have a designated computer.” In some smaller counties, election work is part time and resources are shared with other less-than-full-time offices. Ultimately, the capacity of various elections offices to expand their physical and digital storage demands will differ widely by jurisdiction.

In some cases, digital storage limits have already affected operations, like in Bexar County, Texas, where accumulated election data strained system capacity and delayed primary results earlier this month. Election offices also already handle thousands of physical records that must be kept in secure, often climate-controlled environments. Texas officials have warned that paper-based systems create “new challenges for storing and securing materials.” Those needs have grown as more and more counties returned to the use of paper ballots and other physical records. Groups like the Bipartisan Policy Center have for years noted that “many election offices are under-resourced, with limited storage capacity.” The system mandating this election-records Tetris is built on a relatively short list of federal laws. Under the Civil Rights Act of 1960, states must preserve “all records and papers” related to federal elections, including ballots and ballot envelopes, for 22 months. Separately, the National Voter Registration Act requires states to keep voter registration and list maintenance records for at least two years. Together, these laws set a mandatory baseline that already gives the federal government access to a wide range of election materials.

State laws build on that baseline in uneven and disparate ways. Many mirror the 22-month rule for ballots and ballot envelopes but extend retention for other records, particularly those documenting voter participation. For example, California keeps ballots and vote-by-mail envelopes for 22 months but retains voter participation records, such as rosters showing who voted, for up to five years. Texas uses detailed records schedules that require multi-year retention for materials like poll lists, voter registration files, and administrative records, sometimes allowing electronic storage.

The executive order layers another requirement on top of all of that.

The order also directs the attorney general and federal agencies to “take all lawful steps to deter and address noncompliance with Federal law,” including to prioritize enforcement of statutes covering non-citizen voting, voter registration fraud, and a range of other voting-related crimes.

Becker said the rhetoric is part of a familiar pattern — “a drumbeat that we hear from this administration that prosecutions are coming.” Trump has echoed that message repeatedly, including in remarks at the World Economic Forum in January.

Read in that context, the five-year retention provision appears designed to preserve records that could be relevant to future investigations. Ballot envelopes and related participation records can contain voter-identifying information, signatures, tracking information, and other data showing whether and how a ballot was issued, returned, and processed.

Still, Becker said he’s telling election officials not to worry.

“The executive order can say whatever it wants to. It can say that the AG can investigate people and have them do a little dance. Ultimately, what the attorney general does — what the DOJ does — is investigate violations of federal law,” he said. “It’s hard to investigate criminal wrongdoing when none has taken place.”

Jessica Huseman is Votebeat’s editorial director and is based in Dallas. Contact Jessica atjhuseman@votebeat.org.

Votebeat is a nonprofit news organization covering local election integrity and voting access. Sign up for their newsletters here.

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