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Election

Document

Retention

in an Age

of High

Technology

Author:

Marie Garber

Consultant in Election Administration

10201 Grosvenor Place 3310

Rockvile, Maryland 20852-4606

Managed and Edited by:

William C. Kimberling

National Clearinghouse on Election Administration

Published by:

National Clearinghouse on Election AdminisJration

Federal Election Commission

Washington, D.C. 20463

April 1994

i
This report is another in the series on Innovations in Election Administration being published

by the FEC's National Clearinghouse on Election

Administration.

The purpose of this series is to/acquaint State

and local election officials with innovative election procedures and technologies that have been

successfully implemented by their colleagues

around the country.

Our reports on these innovations do not

necessarily constitute an endorsement by

the Federal Election Commission either of

any specific procedures described or of any

vendors or suppliers that might be listed

within the report. Moreover, the views and.

opinions expressed in these reports are

those of the authors and are not necessarily shared by the Federal Election Commission or any division thereof.

ii

Introduction by the

Clearinghouse

We welcome your comments on these reports

as well as any siiggestions you may have for additional topics. You may mail these to us at:

The National Clearinghouse on

Election Administration

Federal Election Commission

999 E. Street, N. W.

Washington, D.C. 20463

or else contact us

Toll free 800/424-9530

Direct on 202/219-3670

By FAX on 202/219-8500.
Definitions

Acknowledgment notice-Notice sent to a

voter registration applicant to inform him ofthe

disposition of his application.

Ballot image-Record of all the votes cast by a

single voter. Also called "ballot set."

Canvass sheet:-Record of the aggregation of the

vote from a number of precincts to obtain totals for

various constituencies or entire jurisdiction.

Confirmation mailing-Outgoing mailing from

election office to registrants who may have

changed their address, and which includes a post-

. age pre-paid and pre-addressed return card by

which the registrant may verify or correct the address, or confirm that he or she has moved

outside of the jurisdiction.

DRE-Direct recording electronic voting machine.

Election database-Electronically created

. documentation which defines parameters of the

election, contests, candidates, ballot styles, etc.

Electronic medium-Magnetic tape, magnetic or

optical disk, removable data storage device, etc.

List of voters-List ofthose eligible to vote in a

precinct. May be a computer-generated or other

printed list, or a binder of original affidavits.

Those who vote are checked off or marked in some

other way. Also called "checklist," "roster," "precinct roster," "master index," "incoming voting

list," "list of voters book," "roster index," "polling

Election Document

Retention in an Age

of High Technology

place roster," "precinct register," "election register,"

"printout," etc.

Listing of those who voted-Made by pollworkers. Also called "poll book," "signature poll

book," "voters poll list," etc.

Machine-read balot-Individual document ballot marked by the voter and counted by computer.

Includes punchcard and mark sense ballots.

Original voter registration form-Document

filled out by otfor the voter at time of applying

for voter registration; usually signed by voter.

Paper ballot-Individual document ballot that

is manually marked by the voter and manually

co:unted by election offcials.

Pollwatcher-One who observes the conduct of

the election in the polling place as a representativeof an entity other than the election authority. Usually must have credentials issued by a

political party, a candidate or the election offce.

Also called "watcher" or "challenger."

Pollworkers-Offcial staff who conduct the

election in the polling places. Does not include

campaign workers, watchers, challengers, etc.,

who represent entities other than the election authority. Also called "inspectors," "officers of

election," "judges of election," "election judges,"

"precinct board," "clerks," "commissioners," etc.

1
Precinct tabulator-An electronic device on

which votès are recorded and results reported in

the polling place. Includes Precinct Ballot

Counter (PBC); optical scanner; and Direct

Recording Electronic (DRE) voting machine.

Provisional ballot-Used by a person whose

qualification for voting is uncertain and must be

confirmed in the central office before his ballot

can be included in the vote count. Also called

"special ballot" or "affidavit ballot."

Removable data storage device-Read-only

memory device which is programmed to record

votes as they are cast on an electronic machine.

The device is inserted into the machine before

the polls open and removed after the polls close.

It is computer-read alongwith other devices to

obtain jurisdiction vote totals. Also called

"memory pack," "memory cartrídge," "EPROM,"

"PROM,," "detachable recording compartment or

unit."

Tally sheet-A record of the manual tallying of

ballots for a limited jurisdiction, usually a precinct.

Test deck~Apre-audited group of ballots voted

with a pre-determined number of valid votes;

used to test the correctness of electronic votecounting software. Also called "certification deck."

Verification mailing-Outgoing mailing from

election offce to applicant for voter registration

to confirm the applicant's eligibilty before his

name is added to the voter registry.

Voter registry-File of all voters in the

jurisdiction, kept current by the election office.

2
What election documentation should be saved,

why should it be saved, and for how long? That's

one of the most vexing questions facing election

offcials. This report seeks to provide guidance

to them in formulating an answer to it.

We define documentation broadly. It includes

not only such historically ubvious items as ballots and voter lists but also the output of the computer, which has become an essential part of electionadministration and which produces a much

fuller record of election activity than was available when records were produced by pencil, pen,

or typewriter.

. The old documentation was almost always on

paper, the one obvious exception being the mechanical lever machine itself, the counters of

whièh record the vote cast on that machine.

The new kinds of documentation may also be

on paper, output of the computer printer, or may

be punchcards which input data into the computer. Or they may be stored on an electronic

medium-magnetic tape, magnetic or. optical

disk, PROM or EPROM. These electronically

based documents are as much a part of the record

of an election as are paper documents, and no

analysis of what should be saved would be meaningful and complete without including the new

documentation.

New technology has made it possible to achieve

enormous savings in storage facilities and

improvements in retrieval capabilities by

Election Document

Retention in a-n Age

of High Technology

transferring data from original paper documents to an electronic medium. Digitized images, sometimes including signatures, are

stored on optical disk and utilzed to produce

facsimiles as needed. Microfim and microfiche

have made it possible to store documents as tiny

photocopied images of the original and later to

project or print them at full size for reference.

Thus technological miracles have enabled the

election administration profession to make

quantum-leap progress in effciency, and to discard tons of paper that formerly filled a large

portion of their offices. But new questions have

arisen about uses of these substitute documents.

The U. S. Department of Justice does not, in

many instances, consider copies of original documents, however produced, to be adequate for

their purposes of law enforcement.

So what and how much to save, in what format and on what medium, remains a difficult

question. If all records received or created by

an election offce were permanently retained,

it would be possible to answer any question

raised about the agency's work and to cite a

reference to support that answer. As a practical matter, however, such a policy would be

impossible to implement. First, to retain and

store all records produced, and to catalog them

for identification and retrieval, would require

resources much beyond those available to local

and State government offices. Second, voting

devices must be periodically cleared for use in

3
subsequent elections. Finally, not everything is

necessary or even desirable for retention. Election' agencies produce mountains of documents.

Many are repetitive or redundant, and some have

no value once they have met the instant need for

which they were created.

4
In the following listing, documentation produced in election administration is grouped under headings, each of which relates to an aspect

of election activity. The term "record" is used interchangeably with "document" or "documentation." Documentation can beeith~~ hard copy or

on electronic medium. Any and all election

records should be dated; some should bear

the time as well as the date. .

The iist of kinds of documentation is lengthy,

but even so it does not reflect the total dimension of election records. Excluded from this study

are records for which retention requirements ordinarily are specified in State law, and records of

a general management nature which are not

unique to election administration. Among such

documentation is that relating to

. Candidacy.

. Petitions and petition verification.

. Campaign finance; financial disclosure.

. Voting accessibilty for elderly and handicapped

persons; the biennial reporting requirements

under this Act ended with the 1992 election.

. Publications and notices.

. Archives and reference materials.

. Budget; procurement; personnel; inventory;

correspondence.

. Legislation; litigation; attorney general

opinions.

Kinds of

Documentation

Voter Registration

Vöter registration documentation-of which

there is a great deal-details who applied for

voter registration, who was accepted or rejected,

who qualifies for voting, and activity undertaken

to keep the registry current and accurate.

. The original voter registration form filled

out by or for the voter at the time ofregistration. This is the primary evidence ofregistration. Besides data to establish identity, residence, etc., it usually contains an oath of the

applicant and the signature, the latter used

to establish authenticityofa signature submitted subsequently and purported to be that

of the same voter, as in check-in at the polls,

in absentee voting, or on a petition. Election

authorities in some States now digitize the

original signature and store the image in a

computer database so that a facsimile signa-.

ture is available for reference on a screen for

use in petition verification, or is printed on a

voter list for election day check-in, thus making it unnecessary to transport to the polls

the bulky binders containing the original

records. The same imaging technology also

can be used to create a facsimile ofthe entire

voter registration form which can be stored

on and accessed from electronic medium'

,

original documents then can be archived and

rarely if eyer referenced. In at least one State,

the voter registration record is microfimed,

after which the original record is destroyed.

5
. Records of sending acknowledgment

notices to applicants for voter registration,

as required by the National Voter Registration Act (NVRA). The notice informs the

applicant of the disposition ofthe application.

. Rejected applications for voter registration and documentation associated therewith

reflect judgments made by the election agency

that the applicant does not qualify for voting

in the jurisdiction, with the reasons specified.

. Records of declination to register wil be

generated under NRVA at public assistance

agencies. Such records confirm that it was the

citizen's own choice not to apply for voter registration. Failure to sign the application also

constitutes a declination.

. The voter registry is the fie of all voters in

the jurisdiction, maintained and kept current

in the election office. From a computerized

voter registry many different voter listings

can be produced.

. Many documents associated with maintenance of the registry. It is impossible to

list all the documents used in registration fie

maintenance, because of the varying traditions and practices that have evolved in the

States and have been incorporated into their

statutes. The following listing is general, and

each State can place its own particular documents in the broad categories. Records relating to fie maintenance both authorize the actions taken to keep the voter registry accurate

and current, and demonstrate that such activities do not compromise fairness and equity. The

latter purpose has taken on greater signcance

with the enactment of the National Voter Registration Act of 1993 (NVA), which will be

effective starting January 1 1995.

o Authorizations and/or requests for changes

of address, name, party. Some change of

address information may come from State

drivers license authorities or from the

U. S. Postal Service; the information may

be on paper or electronic medium.

6

o Authorizations to cancel (remove the voter

from the registry), because of death, moving out of the jurisdiction, criminal offense,

declaration of mental incompetence, request of the voter, etc. Reason for removal

should be part of the record.

o Records generated in mail verication or confirmation of voter status, including but not

limited to lists of names and addresses of

those to whom confrmation mailings were

sent and whether or not each responded.

o Notices returned to the election offce by

those responding to confirmation mailng.

. Statistical and other inormation necessary

for the Federal Election Commission (FEC) to

make the biennal report to Congress mandated

by NV. The information required from the

States willbe specified to them in detail by the

FEC well before the Act's implementation date.

It will include voter registration as of election

day; the number of new registrations. since the

previous federal general election; registration

activity at various public agencies, and at other

participating agencies; applications by mail, in

person, and through communty volunteers and

organizations; fie maintenance activity; and

postal costs;

Ballots

Retention of voted ballots and ballotrelated documentation is essential both to confirm correctness of the vote count and to detect

corruption or other manipulation of the election.

Ballots are specific to the type of voting system

used~ The category includes both ballots voted at

the polls and absentee ballots; a single jurisdiction may use one kind of ballot at the polls and

another for absentee voting, or may use more

than one kind of voting system and therefore

more than one kind of ballots in its polling places.

. Paper ballots.

. Machine-read ballots, punchcard or mark

sense.
. Strips or sheets placed on voting

machines, both lever and DRE, each annotated to indicate machine number and precinct where it was used. These are also called

"ballot faces."

. Sets of assembled vote recorder pages,

each annotated to indicate precinct where it

was used.

. Provisional ballots, and all documentation

associated therewith. Also called "special" or

. "affdavit" ballots. Used to permit a person to

vote when his qualification for voting is uncertain and must be established after election in the central offce before his ballot can

be included in the vote count.

. Spoiled ballots.

. Disallowed ballots, and all documentation

associated therewith.

. Ballot accounting reports, documenting

disposition of and accounting for all ballots

printed.

Polling Place Records

Other Than Ballots

Most of the records listed are created for and

used in the pollng place on election day. Their

range is extensive, and all serve a purpose for

applying various provisions of law and carrying

out directives of election authorities. Some are

associated with qualifying the voter at check-in;

some with vote-counting; others with special circumstances that occur in the course of the voting

day. All are necessary to reconstruct the election

and provide an audit trail for election day activity at the polls.

Some pollng place documentation is created

in the between-election periods; e.g., records of

recruitment arid assignment of poll workers, and

credentials issued to poll watchers.

. List of voters eligible to vote in the precinct

at that election. May be a computer-generated

or other printed list, or a binder of original

affidavits. The names of those who vote are

checked off, or marked in some other way.

. Records containing voter signatures signed

at the polls (if signature is other than on the

list of voters), such as voting authority cards

or signature cards.

. Listing of those who voted made by pollworkers.

. Any other oaths executed by voters.

. Any other record reflecting identity of

those who cast ballots.

. Records of challenges to any person's right

to vote.

. Records of implementation of "fail safe"

provisions of NV including information

to be used to update the voter registration

record.

. Pollworker attestations of status of premises and equipment at opening and

closing of polls.

. Documentation produced by poll-workers

in counti.ng the vote, such. as tally sheets,

canvass reports, statements of votes, etc.

. Output of voting devices, both hard copy

and electronic:

o AVM print-o-matic sheets, both zero reports

at opening of polls and vote totals at end of

the day.

o The lever machine itself (except for printo-matic machines, see preceding), locked at

the end of election day with the counters

showing the number of votes cast.

o Reports produced before opening polls as

electronic tabulators (DREs, scanners,

PBCs, etc.) are set up and prepared for voting. Includes logic and accuracy tests and

zero reports.

o Reports produced by voting device at close

of polls, including vote totals or results tape.

7
o Removable data storage device (memory

pack, PROM or EPROM, memory cartridge) intact as removed from machine at

close of polls. (See Appendix 1 for alternative requirement recently defined by the

U. S. Department of Justice.)

o Write-in votes cast if recorded other than

on ballots. May be on paper roll from lever machine, or printed as part of the results tape as on DRE machine.

. Records of maintenance to voting

equipment during election day.

. Records of appointment of pollworkers

serving.

. Records of appointment of poll watchers

present in polls.

. Records of assistance to voters, including identity of persons rendering assistance

and of voters assisted.

. Records of assignment and delivery of

voting equipment to polling places.

Absentee Voting, Records

Other Than Ballots

Documentation produced to administer absentee voting is designed to assure that a person

qualifies for voting and for voting absentee; that

a person voting an absentee ballot, or one purporting to be him, wil not be able both to vote

that ballot and also vote at the polls; and that

the correct ballot is sent to the person in a timely

manner and returned to the election agency no

later than the deadline set by law. Moreover,

documentation should demonstrate that if a request for absentee voting is rejected, or if a voted

absentee ballot is disallowed, such actions of the

election authorities are justified.

. Application or request from the voter,

which starts the process. Election officials

review the application and then respond to

the applicant, either by dispatching a ballot

or informing him why a ballot cannot be sent.

8

. Envelopes in which ballots are returned by

the voter-usually two for each ballot, the

return envelope and the inner ballot

envelope. By postmark and/or date stamp,

envelopes document the time of return, and

one or both of them usually contain an oath

ofthe votèr and his signature. Includes envelopes containing ballots returned too late to

be counted. Does not include blank secrecy

envelopes, if such are used.

. Records of challenges to and rejection

of absentee ballots-because they were received late; because the voter did not sign the

oath or otherwise fill out affidavít on envelope; because the person does not qualify for

absentee voting; etc.

. Election office record or log of the steps in

administering absentee voting. In its simplest form, notations are made on the application forms, or on a list of applicants, of the

date of application, the type of ballot sent and

the date sent, receipt of voted ballot, etc. Identity of person who keeps the record also should

be indicated.

In a computerized election management system, there may be an absentee voting module

which includes this information and more. Commonly these systems create and maintain (1) an

activity IQg for each individual absentee applicant, linked to his record in the registry; (2) a

roster of all applications received, where status

of each is indicated; and (3) activity repórts, such

as applications received, appxoved and rejected;

ballots dispatched and returned; etc. The end

result is a complete history of the administration of absentee voting for that election.

Voting System Preparation

Whether voting is by manually counted paper

ballots or the most sophisticated electronic system, certain basics of the preparation of the system are critical to the integrity of the election.

These processes should be documented in order

to confirm that integrity. When preparation steps
are computerized, a hard copy record should be

produced and retained.

. Election definition records. These specify

offces and questions that wil be on the ballot, candidates for each office, number to vote

for in each contest, precincts or precinct portions that_ comprise each constituency, crossfiling, etc. With non-electronic systems, or

even early electronic systems, this process is

often a manual one.

. Ballot design records. Utilizing information from the election definition process, such

documents define and identify the various

ballot styles and placement of contests and

candidates in positions on the ballot, thus

providing copy and layout for ballot printing.

For non-electronic systems and some early

electronic systems, ballot design is done

manually.

. Election database. Electronically created

documentation which encompasses both election definition and ballot design (see preceding) as well as other election-specific data.

. Records of programming lever machines

and testing correctness of the set-up.

Such programming is done manually, drawing on the election definition and ballot design processes, and then tested to confirm the

reliabilty of the machine and that it is set up

to accurately reflect votes cast on it.

. Records of specializing vote-counting

software for the particular election. Includes "coding the program" for the mainframe

or microcomputer in the central offce, as well .

as preparing or ''burning'' the removable data

storage devices for polling place tabulators.

. Records of pre-election testing of

electronic vote-counting systems. The inhouse testing done in the weeks before election to ensure that the programs have been

correctly specialized.

. Test deck. A pre-audited group of ballots

voted with a pre-determined number of valid

votes, used in testing electronic systems to

confirm the correctness of the vote-counting

program. Also called "certification deck."

Vote Count in Central Office

Both to resolve disputed elections and to respond to allegations offraud, the documentation

of vote count and canvass activity in the central

offce is criticaL. When the precinct totals are produced at the polling place, the central office count

is limited to aggregating precinct results, manually or by machine, to obtain totals for the jurisdiction. When ballots are brought directly from

the polls, the entire process from tally to canvass

and certification takes place in the central offce,

and again may be manual or by machine.

. Tally sheets.

. Canvass sheets and_other tabulations.

. All computer software used in votecounting.

. Output of the computer printer. From the

time the system is deemed ready for votecountingpn election day and starting with the

testing done immediately before counting,

through the last tabulation and post-count

testing, one copy of each report printed should

be compiled sequentially.

. System log. A sequential record of all entries

to the system made through the console, from

the time the system is readied for testing just

prior to tabulation until after the count has

been completed, the system is tested again,

and results are ready for certification. Each

entry should include date, time, person executing,and action(s) taken. May be either a

manual listing or computer-produced.

. Ballot images. Records of votes cast on individual ballots; also called ballot sets. Particularly important with DRE machines

where there is no paper ballot for eachvoter.

Hard copy or electronic medium.

9
. Verification of the count before certification. If such verification is done, it should

be documented. Examples of such verification

include recounting all or a portion of the computerized ballots; re-reading and proofing lever machine vote totals; conducting an "automatic recount" (usually with a very close result); and the scrutiny by the State election

authority of canvass documents submitted by

local election boards, and retabulation oflocal results.

. Security plan. Arangements for ensuring security of all appropriate election materials and

premises, and documentation to demonstrate

that the plan was carried out. Should also

include record of any breaches of security.

. Records reflecting certification of the outcome of the election" andtiotifications

sent to winning candidates.

Contested Elections and

Recounts

Because federal officials have found that evidence of civil rights abuse and other election fraud

often comes to light when an election result is challenged, the conduct of a recount or other means of

resolving a contest should be documented. State

regulations governing contested elections and

recounts should require such documentation.

The obligations cited here wil fall on the election office, State or local, if it is the authority responsible for resolving the dispute. Often the forum for resolution is a court or a quasi-judicial

authority, where a full record is kept as a matter

of course.

A contest or recount wil utilize some of the

documentation of the original election. In addition, there are certain records that are created

anew, or specific to, the contest/recount. For

example,

. Procedures and guidelines. These detail

how, when and where the contest or recount

10

is to be conducted, and by whom; provisions

for notice to parties and for observers; standards for disallowance of ballots; etc. May be

in the form of State rules or regulations.

. Log or diary recording the activity.

. Records created in the recount. Some will

document repetition of the processes of the

original election such as pre-count testing of

vote-counting equipment; output of voting

devices; tally sheets; statements of votes; canvass reports; output of computer printer; system log; etc.

Redistricting

If a redistricting plan is challenged-and, such

challenges are not uncommon-election offce

data wil be important in défending it. Accordingly, a cumulative fie of the following should be

maintained:

. Election results by precinct for each

election;

. Voter registration statistics by precinct

for each election;

. Voter turnout statistics by precinct for

each election;

. Precinct map or maps defining boundaries

at time of each election;

. Computerized file of the voter registry

at time of each election.
The range and quantity of election documentation makes it clear that its retention imposes a

substantial burden on election offces, and that

no recommendation or xequirement for retention

should be made without good reason. By examining the purposes election documentation serves,

it is possible to identify those records which

should be retained.

Resolution of Election Disputes

Resolving election disputes through contests

or recounts is the most familar of all reasons for

keeping election documentation. State election

laws invariably contain provisions for resolving

disputed elections. The deadline for initiating

such an action is soon after eleCtion results are

known because there is more than a little urgency

to settle the dispute and determine the winnerafter a primary so general election preparations

can commence and after a general election so the

new offceholder can begin his term.

Although the retention period for documentation to be used in a contest action is short, the

amount of documentation affected is extensive.

Here the appropriate rule is "Save everything"

until the State's deadline for filing a request for

recount or contest has passed and, ifthere is such

a fiing, until the dispute is resolved. Records

should be retained in their entirety and original

format so that the election can be quickly

reconstructèd.

Why Save

Election Records?

Lever machines should remain locked with the

counters reading as they did when the polls

closed. If the machip.es must be cleared and reset for another election while a contest procedure

is stil pending, the counter face can first be photographed to preserve the record of the vote in

the contested election.

From electronic voting devices and systems,

both hard copy output and data on electronic

media-including the data in memory in DRE

machines-are critical to a prompt determination. Removable data storage devices from DREs

and scanners should be retained intact until the

deadline for initiating a contest or recount has

passed. Data preserved and available for use only

as hard copy would have to be reentered, thus

delaying completion of the resolution process.

Federal Law: The Civil Rights

Act of 1960

Enacted by Congress at a time when the right to

vote was emerging as an important civil right, and

codified at 42 USC 1974-197 4e, these provisions

focus on abuse or violation of civil rights that occurs in the election process, and on election fraud

that is not related to civil rights. The law applies

only to elections in which a federal offce is on the

ballot, and is enforced by the Election Crimes

Branch, Public Integrty Section of the Criminal

Division, U. S. Department of Justice. The unit is

well-grounded in the myrad ways elections can be,

and have been, corrpted.

11
To carr out their responsibilties in assurig that

the federal elective process is faily and properly conducted, law enforcement offcials must have the requisite evidence to conduct a crinal inquiry and either to prove or to disprove allegations of abuse or

fraud. Accordigly, this federal law reqUires that election administrators preserve for 22 months afer an

election ".. . all records and papers which came into

(their) possession relating to an application, registration, payment of poll tax, or other act requisite to

voting." The Department interprets the language

"records and papers" to include a wide range of specific election records, all of which are included in the

listing presented as Appendi 1 of this report. The

law does not require that the specific documentation listed be generated in connection with a

federal election. However, if a record of any such

type is submitted to or produced by the election

authority, it must be retained:'

While the requirements are far-reaching, the

Department points out that the law itself is comprehensive and its purpose vitaL. The document

retention requirement assures that" . . . physical

evidence needed to resolve legitimate public questions concerning the proper performance of the

American electoral process is preserved intact for

a sufficiently long period that it will be available to

election administrators and investigators when

questions arise." The statutes have been interpreted in keeping with the Congressional objective.

A recent Justice Department publication (see

Appendix 2) emphasizes that ". . . . These retention requirements are backed up with criminal

misdemeanor penalties that apply to election officers and document custodians who wilfully

destroy covered federal election records before the

expiration of the 22-month federal retentiòn period. . . . . Specifically, Section 1974 provides that

any election administrator or document custodian

who wilfully fails to comply with the statute is

subject to imprisonment for up to one year. . ."

and " . . .election offcers or other persons who

wilfully steal, destroy, conceal, or alter federal

voting records required to be retained by § 1974

are also subject to one year of imprisonment."

12

Storage of materials during the 22 month period must be either in the direct custody of election officials or at least under-their administrative supervision. For example, ajurisdiction may

determine that the records generated in motor

vehicle and social service agencies, in compliance

with NRVA, would best be kept in those offices.

If so, the law requires that the jurisdiction "have

in place administrative procedures giving election

offcers ultimate management authority over the

retention and security of those election records,"

and those procedures "should also contain provisions to hold those election officers responsible for

retention and security breaches."

Section 1974furtherreqiires that original documents be retained. Jurisdictions which digitize signatures and use facsimiles produced therefrom for

election day yoter lists or for verifyng petition signatures, or States which microfilm the voter registration form, must also retain the original document for use, if need be, by federal investigating

authorities. This is because handwriting analysis

cannot at present be performed on digitized

facsimiles or microfimed reproductions.

Justice Department officials find that the re-

. tention periods specified in State election laws

(typically six months, often less) are not usually

long enough to assure that necessary voting

records wil be preserved until more subtle forms

of federal civil rights abuses and election crimes

have been detected. It normally takes longer than

60 days for evidence to surface that fraudulent

voting practices took place in connection with a

given election, or that federally secured voting

rights were not suffciently protected.

The length of the federal retention period is further explained by the Department's commitment

to federalism, reflected in this instance by deference to the State process for resolving election disputes. They believe it should run its course before

federal authorities step in. When an eleètion result is challenged and resolved through the State's

prescribed process, evidence of wrongdoing sometimes is revealed which can be the basis for a
federal prosecution. This is especially true in contested elections in which "irreguarities" are alleged.

Finally, the federal prosecutors remind, it often takes a number of months for reliableinformation about an election to come forth. What surfaces at the time of the election and soon thereafter often is more rumor and gossip than fact, and

sometimes no more than the grumbling of a loser

who wants the election result questioned on the

chance that he could turn into a winner.

The Elections Crimes branch wil sOon publish,

for the benefit ofthe U. S. Attorneys and Federal

Bureau of Investigation, a detailed description of

the work of the branch and of the application of

these statutes. Federal Prosecution of Election

Offenses, 6th Edition, wil be available sometime

in 1994 from the U. S. Governm~nt Printing Office. In addition, Branch Directd:fCraig Donsanto

has written a summary of the particular federal

statutes that relate to election documentation.

This piece is directed to elections administrators

and is included with this report as Appendix 2.

Federal Law: The National Voter

Registration Act of 1993

The National Voter Registration Act of 1993

(NVRA), "Motor Voter," which wil be effective in

most States starting January 1 1995, requires a

number of changes in methods of voter registration, registration fie maintenance and polling

place procedures. Among the changes are requirements for the creation and retention of certain

election documentation.

As the States and the Federal Election Commission gain experience in administering the new law,

new documentation will be developed and new determinations made as to which should be retained.

Accordingly, insofar as they relate to NVA, the

retention requirements and recommendations of

this report are tentative and subject to revisions as

operational experience dictates.

The law itself includes some documentation

mandates. One provision requires voter registration offcials to maintain for at least 2 years and

to make available for public inspection (and,

where available, for photocopying at reasonable

cost) "all records concerning the implementation

of programs and activities conducted for the purpose of ensuring the accuracy and currency of

offcial lists of eligible voters, except to the extent that such records relate to a declination to

register to vote or to the identity of a voter registration agency through which any particular

voter is registered." The purpose of such recordkeeping is two-fold. First, such records enable the

registrar to maintain an accurate "inactive" fie

to support the "fail safe" process by which one

who has been removed from the list in error can

be restored and can vote on election day. Second,

they make it possible to demonstrate that the

methods by which a list is kept accurate and current ("list cleaning" activities) are nondiscriminatory and are otherwise in accordance with

NVA. The reason for the close scrutiny of list

cleaning procedures is that such programs have

often bèen applied unevenly or administeredarbitrarily, and thereby have discriminated against

certain segments of the electorate.

Other documentation retention requirements,

implied but not specifically identified in the law,

wil enable the Federal Election Commission to

make a mandated biennial report to the Congress

on the impact ofNVA. The FEC wil issue regulations to specify what information must be supplied by State and, in turn, by local election offcials to meet this requirement and to comply with

other provisions of NVA.

Federal Law: The Uniformed

and Overseas Citizens Absentee

Voting Act of 1986

This law guarantees to members of the Uniformed Services and Merchant Marine, their

spouses and dependents, and to civilian U. S. citizens residing abroad, the right to register and vote

absentee in elections for federal offces. To faciltate that purpose, the law also provides for a Federal Post Card Application (FPCA) for registration

13
and absentee voting; it is widely distributed

throughout the world. U. S. election authorities are

required to respond to any application that is correctly filed by sending, in a timely manner, the

appropriate absentee ballot.

The Act is administered by The Federal Voting Assistance Program in the Pentagon, and is

enforced by the U. S. Department of Justice. To

investigate charges that qualified applicants were

not sent absentee ballots, or that ballots were

dispatched too late to allow for a timely return,

. and other allegations of violations of the Act, the

Justice Department often relies on absentee voting documentation in local election offices-absentee applications, ballots, and envelopes;

records of challenges to and rejections of absentee ballots; and the record or log of the administration of absentee voting. Dating of such documents is crucial, since many of the violations

charged involve ballots sent too late~because

ballot-printing was delayed; because the election

office did not respond promptly enough after the

application was received, etc.

A ballot sent to an overseas location needs a

number of weeks to make the round trip to the

voter and back to the election office in time to be

included in the vote count. Late dispatch by the

election office can deprive the citizen of his franchise. Where cases involving delayed delivery to

the voter have been litigated, courts have held

30-45 days to be the minimum time required between dispatch of the ballot and deadline for receipt of the returned ballot.

In the rare instances where qualified voters

are at remote locations, or in situations where

contact with the States can be made only infreqùently, the Act also provides for a Federal Writein ("blank") ballot which the voter can obtain from

U. S. embassies, consulates or miltary installations. On such a ballot the voter can write in the

'candidates and offices for which he chooses to

vote.

14

Redistricting Support

Redrawing of constituency boundaries, and

defending those changes against challenges, is

dependent on election-related documentation

which is created and maintained by election administrators. Mostly statistical, but also graphic

and narrative in nature, these documents are the

essential underpinning, along with census data,

to demonstrate compliance with the constitutional requirement for "one person, one vote" and

the statutory mandate that boundaries be drawn_

in a nondiscriminatory manner. For the latter

purpose, a computerized registration file for each

election is recommended for retention. It wil

make possible a computer analysis of the electorate.

Documentation to support redistricting is not

voluminous: Such records are statistical reports,

election results, maps and/or other boundary descriptions, and voter registration data, all of

whicli can be summarized at each election time,

and accumulated so as to provide an up-to-date

history. Permanent retention of these records is

recommended, since redistricting challenges

sometimes come as a result of a court decision or

enactment of new legislation years after boundaries are drawn, and investigators often need a

progression of records going back a number of

years in order to discern a pattern of activity.
In General

Like everything else in election administration, the retention of election documentation

varies widely among the States.

,.

In some States the guidelines for retention of

documents is only what is in the State code. It

may be quite detailed or it may include only a

few references to what must be saved, for how

long, and by whom.

Whether they are embodied in law, regulations, or directives, State policies usually are

directed to local election officials and relate to

records over which they have control. Seldom

do these policies include documentation under

the control of the State election office. For ex-.

ample, State law usually provides for retention

of tally sheets from the pollng place, but not for

retention of canvass records made up at State

leveL. At the other extreme, one State election

authority recently developed a "comprehensive

and current policy for the purpose of document

retention," but it applies only to the Secretary

of State's office and does not include such items

as ballots, voter registration records, absentee

voting materials, tally sheets and voter lists for

check-in at the polls.

Finally, policies in most States do not reflect

the technological transformation in election

record-keeping, and fail even to mention documentation on electronic media and/or to provide

for its retention.

State Retention

Policies and Practices

Specifics of State Retention

Policies Currently in Place

A survey of the 50 States and the District of

Columbia to determine their current retention

requirements reflects the wide variance in their

practices, and-in most instances-their limited

scope. A number of States do not retain, or do not

retain for 22 months, all the documentation specified by the Justice Department as requisite for

compliance with federal law.

Voter Registration

In almost all the States, the original voter

registration document is preserved for the entire time the registration is on the active fie and

for a period of time thereafter. Only five States

reported a post-cancellation retention period less

then 22 months; in 14 States the period is 22 to

25 months, in another 14 it is 3 to 10 years, and

14 retain the originals permanently. One State

microfims the original after the data been entered into the computer fie, destroys the original and retains the microfim permanently.

Retention of the documentation which authorizes changes in voter registration data, or

of programs and activity conducted for the purpose of ensuring the accuracy and currency of addresses of eligible voters is not common. This wil

change as NVA is implemented, and as the Justice Department's updated election documentation retention requirements become known.

15
Ballots

Ballots cast are retained in most of the States,

and usually for 22 months or more-at least in

federal elections. Seven States, however, reported

that ballots are saved only a shorter period-.

ranging from 10 to 90 days.

About half the States save the challenged

ballots, and about a third create and retain

ballot accounting records.

Polling Place Records

Voter lists on which voters are checked off

when they come to the polls are retained by most

of the States, and for federal elections the period

is usually 22 months or more. A few respondents

reported periods as long as five or ten years.

Tally sheets and canvass;'reports are retained for the 22 month period, as are printed

output of lever machines and hard copy records

generated by the various electronic precinct tabulators including DREs.Less commonly held for

22 months are records relating to challenges to

voters, records of appointment of poll workers

and poll watchers, and records of assistance to

voters. Where voter assistance records are made

and retained, they usually consist only of the record

of the assisted voter, not of the person who rendered the assistance-an omission that could

handicap post-election detection of improper influenceor intimidation. Only a few States report that

they keep records of maintenance and/or repairs

of voting equipment during election clay.

One type of documentation that is typically not

retained more than a short time is the removable

data storage device used in electronic precinct

tabulators (scanners, PBCs, DREs) to record and

cumulatively tabulate the vote as it is cast. The

reason is obvious: these units--artridges, memory

packs, PROMs, etc.-are expensive, ranging in

price from $250 to $500 each. Following an election they sometimes are retained intact for use in

a recount, biit after that they must be erased and

reprogrammed for a subsequent election. 'l requie

that the memory pack be retained with election

16

results on it for 22 months would mean buying four

such microprocessors for each machine, a

considerable increase in the pricè of the equipment.

Data on these removable storage devices are

important principally for two purposes: (1) to

verify and validate the vote count in the event of

a contest or recount, and (2) as original evidence

useful, even crucial, to federal law enforcement

offcials if a civil rights abuse or election fraud is

charged.

For the first-listed purpose, it is recommended

that the data storage device be retained, intact as

it was removed from the precinct tabulator at the

close of the polls, until the deadline for initiating a

contest or recount action has passed.

For theotherpurpose-to serve as evidence in

a post-election investigation initiated by federal

law enforcement officials-the question of how.

long to save the data storage device becomes more

difficult to answer. Federal criminal investigations. bften do not start unti months after election and the primary focus is not "who won" but

"was the process corrupted and who did it."

Most Stàtes that use DREs and other electronic

precinct tabulators have no retention requirement for the removable data storage devices.

Their practices vary, and for the most part are

not included in written regulations or procedures.

Some States do retain the machines and the removable devices intact until the recount or contest deadline has passed; for any investigation

after that time, they rely for documentation on

the "paper work" produced by the system as the

database is created and the storage devices are

prepared for each machine. Even States that have

a comprehensive retention policy, saving all other

pollng place documentation for 22 months or

more, report that PROMs or other memory cartridges are erased soon after election, typically

thirty days but sometimes less. For example, "the

detailed and regulations in Oklahoma, where

electronic scanners are used in every precinct in

the State, include no retention requirement for

PROMs. The established practice is to save the
data "3 days or until a contest is resolved." (Deadline for initiating a contest in Oklahoma is 3 days

after election.)

Only one State, in its written policies, recognizes that the removable data storage device

could be critical to establishing the integrity of

the election. The Wisconsin statute was amended

in 1992 to provide as follows in this regard:

Detachable recording units and compartments for use with electronic voting machines may be cleared or erased

14 days after any primary and 21 days

after any other election. Before clear-

,ing or erasing the units or compartments, a municipal clerk shall transfer

the data contained in the units or compartments to a disk or other recording

medium which may be erased or destroyed 22 months after the election to

which the data relates. (7.23 (1) (g) Wis.

Stat. En;phasis supplied.)

Wisconsin election officials report that some

.ofthe scanner systems used in the State, those

where ballots are tabulated at a central location

with a high speed reader, are able to transfer the

data to disk or other recording medium, but the

data from precinct tabulators cannot be transferred. Those user jurisdictions have had to retain the chip or the entire PRUM, and bear the

considerable expense of buying additional

PROMs for the elections that occur during the

22 month retention period.

The Department of Justice, in updating its retention requirements to reflect the realities ofthe

widespread use of computerization in elections,

has specified retention requirements for the data

storage device as follows:

"With respect to electronic/computerizedvote recording or tabulation equipment utilizing removable programmable data storage devices ('PROMs'),

or other similar memory storage devices, (retainJ the following:

a. The 'PROM' or electronic memory

storage device itself, intact, and as removed from the voting machine at the

close of the polls; or,

. b. An electronic record ofthe program

by; which votes are to be recorded or

tabulated, which is captured prior to the

election, and which is stored on some

alternative medium (e.g., floppy disks)

simultaneously with the 'burning' of the

PROM or other memory storage device,

and,

c. With respect to the output from a

PROM or other memory storage device

after the election has been concludedi. In voting systems utilizing individual Precinct Ballot Counters

(PBCs) or optical scanners: the hard

copy output from the PROM or other

electronic memory storage device

used to record and/or to tabulate

votes! (i.e., the 'results tape'), or

ii. In voting systems using centralized counting devices wherein the results bf several PROMs or other

memory storage devices are synthesized into a single consolidated output report or 'results tape': the hard

copy output from the PROM or other

electronic memory storage device, and

the hard copy consolidated output report or 'results tape,' and the electronic program used to read the individual PROMs or other electronic

memory storage devices and by which

the consolidated output report was

produced."

(Source: "Categories of records covered," in

Retention of Voting Records under 42 use §§ 1974

et seq., by Craig Donsanto, included in this report as Appendix 2.)

17
Absentee Voting Documentation

(other than ballots)

Federal law requires the retention of applications for absentee voting and of the envelopes

in which the ballots are returned. Almost all the

States do so, and only a few of them specify a

period less than 22 months.

Logs of absentee voting activity, often computerized, are created in a number of States and

retained to provide a history of absentee voting

in an election.

Voting System Preparation Records

Fewer than half the States retain any records

of voting system preparation. If anything is saved,

it is the pre-election testing of the system for

reliabilty and counting accuracy, in the central

offce, the pollng place, or'both.'Virginia, where

DREs have replaced mechanical lever machines

in a number of localities, reports that the electronic machines provide greater assurance of

adequate testing because they automatically produce their own documentation ofthe process; for

the lever machines, Virginia has to depend on a

manually marked check list to confirm that the

tests were performed.

Few States maintain records of specializing the

vote-counting softare for an election, and very

few document their provisions for security of

equipment, materials and premises.

Documenting the Central Offce Vote Count

States that count votes manually maintain

their tally sheets and canvass reports for periods varying from 10 days to permanently. Computer vote-counting programs usually are retained for a period varying from 10 days to 10

years, as are the output of the computer

printer and the system log. In many of the retention requirements, 22 months is a common

duration, reflecting the standard set in federal

law.

18

Problems in Documentation

Retention

The biggest problem in administering a documentation policy is space for storage. Ohio laments "Storage! Storage! Storage! Counties that

have central record centers are fortunate." Michigan reports that shortage of storage is most acute

in rural townships with outdated township halls,

where many documents are retained at the clerk's

residence. And Oklahoma notes that "many counties have had to adapt filing cabinets and other

storage systems design~d for manual records to

computer-generated reports, which are larger

than the old records."

Divided authority between State and local offces

is a recurrng problem; policy is set by the State

election offce but most implementation is at the

local level where the documentation is produced. A

number of States report that they cannot compel

local offcials to supply data so they can conduct

oversight of retention practices. Iowa finds "It is

hard to convince counties that have never had a

contested election that there is a need to keep things

just in case'." Minnesota reports that there is "no

quality control" in many local offces, and that "administrative recounts occasionally disclose poor

retention of peripheral materials such as absentee

ballot return envelopes or write-in tally sheets."

Other problems reported include (1) confusion

because retention requirements vary among the

types of documentation and with the kind ofelection; (2) the need to use voting equipment and

materials for an election which occurs within the

documentation retention period after a previous

election; (3) difficulty in retrievaL.

In West Virgia's observation on documentation.

retention problems one can detect more than a little

frustration: "Lack of clarity in law. Lack of space at

county leveL. Lack of security. Lack of time to focus

on records management and no personnel to spare

for the project." .
Supervision of Documentation

Retention

State election officials exercise a varying measure of supervisory authority over local election

boards, ranging from almost none to close monitoring. In some instances the State authority does

not even know what the practices are at the local

level and suspects that there is little uniformity

between and among the jurisdictions. One New

England state reported that matters of documentation retention are "handled individually at the

loci.1 level" and the "Secretary of State's office does

not get involved." A western State reported simply that "no official election document retention

policy is in place at this time."

State policies, usually statutory provisions, oftèn ignore the federal law requiring retention of

. and provide in their code for lesser periodsballots and other election records for 22 months . ,

though at least four times in each two year period these requirements are superseded because

a federal office is on the ballot. It is hard to believe that State authorities are unaware of a federal requirement enacted more than thirty years

ago. Perhaps they do not consider it theirresponsibility to inform or direct local offcials regarding their retention responsibilities in federal elections. Other States have accepted their obligation to direct and inform; their codes have been

amended or annotated, and their regulations

updated, to encompass the longer retention requirements. Indiana decided in 1993 to regularize election document retention policy and now

"requires all election documentation to be kept

for 22 months following the election for which the

documents were generated." Before 1993 ". . .

state law provided a different retention schedule

for almost every type of election document. . ."

and there was a considerable amount of confusion among county offcials. The State has solved

the problem by " . . . creating a uniform retention

time, and by providing training to offcials who

administer the law."

The Retention Schedule

An effective instrument for administering

documentation retention policy is the document

retention schedule. About half the States now

have such a schedule, sometimes developed in

cooperation with a State records management or

archives agency. The schedule facilitates compliance with retention requirements in the local election offces, where most of the election documentation is created and must be saved. It supports

those offcials by assuring that they are aware of

the requirements of law, both State and federal,

and of other State directives or guidelines, that

they know what has to be saved and for how long,

and when records can be discarded.

No doubt some local officials whose State authorities do not supply a retention schedule de~

velop one for themselves. But such a method

means that there wil be no uniform understanding of and compliance with retention requirements, and that there wil be needless duplication of effort in policy formulation.

Characteristics and content of State retention

schedules vary:

o Some -are comprehensive, some sketchy.

o Some include only documents mentioned

in the state code, and the retention requirements cited therein; some include these and

also the records related to compliance with

federal law.

o Some States supplement legal requirements with regulations and administrative

directives.

o Most apply only to local elections offces; a

few apply only to the State election authority or to both State and locaL.

o Few make any reference to documents on

electronic media.

Some of the good retention schedules are cited

here, both to indicate the various approaches

19
taken in the States and to suggest where models

can be obtained for a State developing or revising

its own retention policies:

Connecticut: Comprehensive and detailed retention schedule. Applies to both State and local

officials. Begins with a references to 42 USC 1974,

cites its application to elections for federal offce

and notes that "This requirement supersedes any

state statute or regulation." In addition, the detailed, day-by-day "Election Calendar" prepared

by the Secretary of State for each election includes

discard dates for specified election records.

Delaware: Retention schedule produced by State

Archives. Listing divided into paper documents

and computer output.

Iowa: Schedül~ is simple and clear, quite comprehensive, and recently revis~d. InCludes only

documents for which there is a s.tate statutory

provision for retention. A few of the listed documents are computer output.

New York: Retention schedule created by State

for use by local election boards. Comprehensive

listing of records by type, rather than specific

name; local board is to adapt it to fit its own systems and terminology. Applies to records on paper and on electronic media. Recognizes the essentiality of electronic records, and the need to

ensure that they are created and maintained

properly. Good introduction on purposes ofretention and implementing the schedule.

North Carolina: Standard 4 and Standard 6,

respectively, apply to electronic media records and

to records on paper.

Oklahoma: Election administration in the State

is highly centralized; the State Board has a broad

grant of supervisory authority over the county

election boards. The Oklahoma Election Management System (OEMS), statewide and computerized, is used in all counties and linked with the

State office. There is a listing of all reports produced by OEMS, and for each report the retention period, if any, is indicated. Applies only to

output on paper. In addition, the "Secretary's

20

Digest" is published regularly to update the rules

and regulations of the State Election Board; some

updates are documentation retention requirements relating to both paper and electronic

records.

Virginia: Retention and Disposition Schedule for

election records produced by State Archives and

Records Division for use by local election authorities. Includes records specifically cited in Virginia

code and certain other records, retention of which

is required for compliance with 42 USC 1974-

1974e. Does not include electronic documentation-e.g., "memory cartridges" for DRE

machine.

West Virginia: Retention schedule first produced

1993. Simple and clear in format; comprehensive.

Includes only records cited in State code, which

has been amended to include the 22 month retention period required by federal law. Little reference to documentation related to electronic

voting systems.

Wisconsin: Schedule produced by State Elections Board for use by local election offcials. Clear

and comprehensive. Includes only the items specified in State law, but requires the 22 month retention period in federal elections for certain of

them. Also includes the "detachable recording

units" on electronic voting equipment.

Guidelines for a State Election

Documentation Retention Policy

Deciding what should be saved is a trade-off -

between what might possibly be needed in the

future and what can be accommodated given the

manpower and storage resources available-except that in some instances State or federal law

dictates specifics of the policy.

Most of the burden of retention falls on the local election authority, but the retention policy

should be established at the State level in order

to ensure uniform application. Moreover, the

State authority, exercising its supervsory responsibilty, should support and monitor the work of
local offces to ensure that the standards are

uniformly applied.

Responsible retention policy should recognize

that the computer is a major factor in election

administration, and should utilize the full potential of computerized systems to generate documentation. When documentation is on electronic

media, storage conditions should be such that the

integrity of data wil be maintained for the required length of time.

A documentation retention schedule is essential. It should be kept current as new kinds

of records come into use, new laws are passed,

and new programs implemented. It should be

comprehensive and specific, and training should

be provided for local officials to ensure their u:ìderstanding and guarantee compliance.

Appendix 1 to this report makes recommendations for documentation to be included in a retention schedule, the purpose served by such

records, the applicable federal law (if any), and

the period for retention. It could be a useful starting point for a State establishing retention policy,

tailoring the content to be appropriate to its own

law, practices, and traditions.

21
Appendix 1

Election Documentation

Requirements and

Recommendations

23
ELECTION DOCUMENTATION

Requirements and Recommendations

Introductory notes:

All documentation should be dated; in some instances, time also should be indicated.

Records on electronic medium (magnetic tàpe, disk, etc.) should be stored in such a way that their integrity is ensured

for the duration of the retention period.

Certain kinds of election offce records are excluded from this study (see text, Chapter I) and therefore are not included

in the following listing.

Rationale for recommendations is in the text of the report, Chapter II.

State law or directives may require retention of documents other than those listed, or may require retention of a listed

document for a longer period than is specified in this table.

Footnotes are at the end of the table.

Symbols used in last column, "Purpose or Applicable Federal Law:"

1 Civil Rights Act of 1960,42 use W74 et seq. This law does not require that any particular record be generated.

But if generated, .and if it is ôn this .list, it must be retained for the 22 month period.

2 NVA, Natiqnal Voter Registration Act of 1993 ("Motor Voter"). 42 USC 1973 gg-6(i).

3 Federal Election Commission regulations pursuant to NVA, to be published 1994.

4 Uniformed Overseas Citizens Absentee Voting Act of 1986. 42 USC 1973ff et seq; 39 use 3406; and 18 USC 608-609.

A Contested elections and recounts.

B Redistricting support.

Kind of documentation Retention Period Purpose or

Applicable

Federal Law

VOTER REGISTRATION

Original voter registration form 22 mos. past the last

federal election in which

the voter was eligible to

vote

1

Authorization/request for change of address, name, party, etc. 22 mos. 1

Authorization/request to cancel nigistration. 22 mos. 1

All records generated in course of producing acknowledgment

notices, confirmation mailngs, mail verification or any other

confirmation of voter status.

2 yrs. 1, 2

Notices returned to election offices by registrants responding

to verification or confirmation mailings.

2 yrs. 1, 2

Rejected applications for voter registration. 22 mos. 1

24
Kind of documentation Retention Period Purpose or

Applicable

Federal Law

Declinations to register at public assistance agencies.

Statistical records of registration, voting and fie maintenance

activity required for biennal reporting to FEC.

22 mos. 1

2 yrs. 2

BALLOTS AND RELATED DOCUMENTATION

All voted ballots, paper or machine-read, including

a,bsentee ballots.

22 mos. 1, A

Strips or sheets mounted on lever or DRE voting machines

(ballot faces), each identified by machine number and precinct.

22 mos. 1, A

Assembled vote recorder pages (Votomatic), each identified

by precinct. .

Provisional ballots and documentation associated therewith.

22 mos. 1, A

22 mos. 1, A

Spoiled ballots. Until State deadline

for initiating contest

or recount has passed.

A

Rejected or disallowed ballots and documentation

associated therewith.

22 mos. 1, A

Ballot accounting report. Until State deadline

for initjating contest

or recount has passed.

A

POLLING PLACE RECORDS OTHER THA BALLOTS

List of voters used in each pollng place. 22 mos. 1

22 mos. 1

22 mos. 1

22 mos. 1

22 mos. 1

22 mos. 1

22 mos. 1

22 mos. 1

Until State deadline A

for initiating contest

or recount has passed.!

25

Records containing voter signature, including any oath

executed by voter.

Listing of those who voted, made by pollworkers.

Any other record reflecting identity of those who cast ballots.

Records of challenge to any person's right to vote.

Records of implementation of "fail safe" provisions of NVA.

Voter assistance records, identifying both voter assisted and

person(s) rendering assistance.

Tally sheets, canvass reports, statements of votes. 

Lever machine, locked at close of polls (non-printer

machines only)
Kind of documentation Retention Period Purpose or

Applicable

Federal Law

AVM Print-o-matic report sheets, opening and closing of polk 22 mos. 1

Removable data storage device (PROM, memory pack,

cartridge" etc.)

For purpose of recount

or contest resolution,

retain intact unti State

deadline for initiating

contest or recount has

passed.

:",

For compliance with

use 421974 et seq.,

retention period is

22 mos. Either save the

data storage device itself,

or save, on electronic

medium, record of

programming the device,

and the post-election

hard copy of its output

plus the program used

to read the device.

For detail, see. 2

A

1

Pollworker attestations of status of premises and equipment

at opening and closing of polls.

22 mos. 1

Reports produced by electronic voting device at opening and 22 mos. 1, A

Records of write-in votes, if cast other than on a ballot. 22 mos.

Records of ballot images, or ballot sets, produced by

electronic voting devices.

22 mos.

13

Records of service or maintenance to voting equipment

at the pollng place. cumulative, permanent

Records of poll worker appointment and service. 22 mos. 1

1, A

1, A

Records of pollwatcher/challenger appointment and service. 22 mos. 1

. Records of assignment and delivery of voting equipment. 22 mos. 1

ABSENTEE VOTING OTHER THA BALLOTS

Applications for absentee voting. 22 mos. 1,4, A

Envelopes in which absentee ballots are returned,

including those returned too late to be counted,

but excluding blank secrecy envelopes if such are used.

22 mos. 1,4, A

Records of challenges to and rejection of absentee ballots. 22 mos. 1,4, A

Records or log of the administration of absentee voting. 22 mos.

26

1,4, A
Kind of documentation Retention Period Purpose or

Applicable

Federal Law

VOTING SYSTEM PREPARTION

Election database, election definition, ballot design. 22 mos. 1, A

22 mos. 1, A

22 mos. 1, A

22 mos. 1

22 mos. 1, A

22 mos. 1, A

Records of programming and testing of lever machines.

Records of specialization of vote-counting software.

Records of programming ("burning") removable data storage

devices for precinct tabulators.

Records of pre-election testing of electronic vote-counting systems.

Test deck(s).

VOTE COUNT IN CENTRA OFFICE (or at regional site)

Tally sheets, canvass sheets.

One copy of all output of computer printer.

22 mos. 1, A

22 mos. 1, A

22 mos. 1, A

22 mos. 1, A

22 mos. 1, A

22 mos. 1, A

22 mos. 1, A

All vote-counting software.

System log.

Ballot images, or ballot sets, produced by electronic voting devices.

Records of any verification of the count done before certification.

Records documenting plan and activity to ensure security

of records, ballots, equipment and premises, including any

breaches of security.

Records reflecting the certification of the outcome of the election,

and èopies of notifications serit to winning candidates. 22 mos. 1

CONTESTED ELECTIONS AND RECOUNTS

Procedures and guidelines. 22 mos. 1, A

Log or diary of activity. 22 mos. 1

Records created for and during the recount. 22 mos. 1

REDISTRICTING

Election returns by precinct for each election

Voter registration statistics by precinct for each election.

Voter turnout statistics by precinct for each election.

permanent B

B

B

permanent

permanent

27
Kind of documentation Retention Period Purpose or

Applicable

Federal Law

Precinct map or maps, with boundaries in effect at time

of each election.

permanent B

Computerized fie of the voter registry at time of each election. permanent B

i If machine must be cleared and reset for subsequent election before expiration of retention period, the face of the

machine showing the counters with vote totals can be photographed before clearing.

2 Specifically, the Justice Department has definedthe requirement is as follows:

"With respect to electronic/computerized vote recording or tabulation equipment utilzing removable programmable data

storage devices ('PROMs' or other similar memory storage devices), (retain) the following:

a. The 'PROM' or electronic memory storage device itself, intact, and as removed from the voting machine at the close of

the polls; or,

b. An electronic record of the program by which votes are to be recorded or tabulated that is captured prior to the

election, produced on some a1terniitive medium (e. g., floppy disks) simultaneously with the 'burning' of the PROM or

other memory storage device, and,

c. With respect to the output from a PROM or other memory storage device after the election has been concluded:

i. In voting systems utilizing Precinct Ballot Counters (PBCs) or optical scanners, the hard copy output from the

PROM or other electronic memory storage device ùsed to record and/or to tabulate votes (i; e., the 'results tape', or

ii. In voting systems using centralized counting devices, wherein the results of several PROMs or other memory

storage devices are synthesized into a single consolidated output report or 'results tape' the hard copy output from

each PROM or other electronic memory storage device, and the hard. copy consolidated output report or 'results

tape,"and the electronic program that was used to read the individual PROMs or other electronic memory storage

devices and by which the consolidated output report was produced."

(Source: "Categories of records covered", in Retention of Voting Records under 42 U. S. C. §§ 1974 et seq., by Craig

Donsanto, included with this report as Appendix 2.)

3 These records are essential also for post-election attention, to ensure that the equipment wil be functioning correctly

in subsequent elections.

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Appendix 2

Retention of Voting Records

Under 42 u.s.e § 1974

By Mr. Craig C. Donsanto

Director, Election Crimes. Branch

Public Integrity Section

Criminal Division

U.S. Department of Justice

29
Retention of Voting Records Under 42 U.S.C. § 1974

By Craig C. Donsanto1

The purpose of this article is to provide guidance to election administration professionals and to

state legislatures on the practical application of the federal election document retention requirements of 42 U.S.C. §§ 1974 through 1974e (hereafter referred to as "Section 1974") to the modern

election administration process.

Section 1974 is a federal statute that requires election administration officials to retain intact and

in a secure environment all records developed by the voting process that are "requisite to voting" in

elections where federal candidates were voted upon. This statute contains criminal penalties for

those who violate it intentioiÙilly in election involving federal candidates. Those penalties are enforced by the Public Integrity Section, Criminal Division, United States Department of Justice.

Section 1974 was enacted in 1960. This was prior to the development of computer voting technologies which today are common features of the modern election administration process in most states.

It was also long before the passage of the National Voter Registration Act (NVA) in 1993,2 which

sets federal standards and procedures for registering voters throughout the United States, and imposes document retention requirements of its own. These significant-and recent-developments in

the procedural aspects of American election processes have created a need on the part of election

administrators for an updated exposition of the reach of the federal election document requirements

of Section 1974 to modern election technologies. That is the objective of this article.3

The last article that I wrote concerning these statutes appeared in the Federal Election Commission's

"Journal" in 1986. This paper wil update the discussion in that earlier piece in light of the developments just noted. In addition, it is my hope that the remarks that follow wil provide the election

administration community with more definitive guidance concerning the reach of these important

election document retention laws in the context of modern election administration.

1 Director, Election Crimes Branch, Public Integrity Section, Criminal Division, United States Department of Justice. The assistance of Marie Garber, former Chair of the Maryland State Election

Board, and Wiliam C. Kimberling of the Federal Election Commission in the preparation of this

article is acknowledged and appreciated.

242 U.S.C. §§ 1973gg through 1973gg-10 inclusive.

3 Nothing contained in this article is intended to confer substantive or procedural rights on members of the public, or upon those whose activities may fall within the scope of the criminal provisions

of the statutes discussed.

30
. 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 proof of federal civil rights offenses.

State laws generally require that voting documents be retained for sixty to ninety days. Those

relatively brief periods are usually insuffcient to make certain that voting records wil be preserved

until more subtle forms of federal civil rights abuses and election crimes have been detected.

Congress therefore'included in the Civil Rights Act of 1960 a legislative provision that extended

the document retention period for elections where federal candidates were on the ballot to twenty-two

months after the election. Pub. L. 86-449, Title III, § 301, 74 Stat. 88 (May 6, 1960); 42 D.S.C. §§

1974-1974e. This election documentation retention requirement is backed-up with criminal misdemeanor penalties that apply to election officers and document custodians who wilfully destroy covered election records before the expiration ofthe 22-month federal retention period.4

The retention requirements of Section 1974 are aimed specifically at election administrators. In a

pa.rochial sense, these laws place criminally sanctionable duties on election- officials. However, in a

broader context, this federal retention law assists election administrators perform more effciently

thetasks of managing elections, and determining winners of elective contests. It does this by requiring election managers to focus appropriate attention on the types of election records under their

supervision and control that may be Ìleeded to resolve challenges to the election process, and by

requiring that they take appropriate steps to insure that those records wil be preserved intact until

such time as they may become needed to resolve legitimate questions that frequently arise involving

tlie election process. In this way, Section 1974 serves the election ,administrators by better equipping

them to respond to legitimate questions concerning the voting process when they arise.5

. The basic requirements of Section 1974

Section 1974 requires that election administrators preserve for twenty-two months "all records

and papers which come into their possession relating to any application, registration, payment of poll tax, or other act requisite to voting." This retention requirement applies to all elections in which

candidates for federal offces were on the ballot. Federal elective offices mean the United States

Senate, the United States House of Representatives, President of the United States, Vice President

of the United States, and Presidential Elector). Section 1974 does not apply to records generated in

connection with purely local or state elections.

4 Specifically, Section 1974 provides that any election administrator or document custodian who

wilfully fails to comply with the statute is subject to imprisonment for up to one year. Under § 1974a,

election officers or other persons who wilfully steal, destroy, conceal, or alter voting records required

to be retained by § 1974 are also subject to one year of imprisonment.

5 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 ilegal-election practices.

Kennedy v. Lynd, 306 F.2d 222 (5th Cir. 1962), cert. denied, 371 U.R 952 (1963).

31
Retention and disposition of records in purely nonfederal elections (those where no federal candidates were on the ballot) are governed by state document retention laws.

However, Section 1974 does apply to all records generated in connection with the process of registering voters and maintaining current electoral rolls. This is because voter registration in virtually

all United States jurisdictions is "unitary," in the sense that a potential voter registers only once to

become eligible to vote for both local and federal candidates. See United States v. Ciancuilli, 482

F.Supp. 585 (E.D.Pa. 1979). Thus, registration records must be preserved as long as the voter registration to which they pertain is considered an "active" one under local law and practice, and those

records cannot be disposed of until the expiration of 22 months following the date on which the

registration ceased to be "active."

This statute must be interpreted in keeping with its congressional objective: Under § 1974, all

documents and records that may be relevant to the detection or prosecution of federal civil rights or

election crimes must be maintained if the documents or records were generated in connection with

an election which included one or more federal candidates.

. Section 1974requires docum.ent preservation, not document generation

Section 1974 does not require thât states or localities produce records in the course of their election

processes. However, if a state or locality chooses to create a record that pertains to voting, it is the

Criminal Division's position that this statute requires that documentation to be retained if it pertains to voting in an election covered by the statute.

. Categories of records covered

In keeping with the wording and legislative purpose behind this election document retention statute, it is the writer's opinion that Section 1974 covers the following categories and types of records

generated by the modern voting process:

1. All voter registration records, including applications for voter registration that were

rejected;

2. Registration documents developed under the NVA, as well as records of declinations

to register under the NVA;

3. Authorizations and requests for cancellation of, or changes to, voter registration records,

including any documentation generated in connection with assessing or adjudicating a

change or cancellation action;

4. Voted ballots, including absentee ballots and all records of write-in votes cast;

5. Applications for ballots, including applications for absentee ballots;

6. Envelopes in which voted absentee ballots are returned to election officers, including

absentee ballot envelopes and absentee ballots that are returned too late to be tabulated;

7. Ballots that have been rejected, and records associated therewith;

8. Ballots that were voted under state "challenge-voting" or "provisional-voting" proce32
dures (i.e., "affidavit" or "special" ballots), and all documentation associated therewith;

9. All records pertaining to the making and the adjudication of challenges to voters;

10. Poll lists and similar records reflecting the identity of individuals voting at the polls,

whether in hard copy or stored on electronic media;

11. Records pertaining to voters being assisted in voting;

12. Logs and other records pertaining to the administration of absentee voting, whether in

hard copy or stored on electronic media;

1a. All documents containing the signatures of voters (including poll lists, challenge affdavits, registration records, voting authority cards, etc.);

14. Tally sheets and reports of canvasses of votes, whether in hard copy format or stored

on electronic media;

15. Records reflecting the appointment and service of persons to act as poll officials or poll

watchers;

16. Records, whether in hard copy format or stored on electronic media, reflecting election

definition (for example, computerized "election data bases," and records reflecting constituency boundaries, ballot design, pollng place staffing, voting equipment assignment, etc.);

17. Records, whether in hard copy format or recorded on electronic media, pertaining to

the programming and/or testing of mechanical and electronic voting equipment and

systems, including the "test decks" in jurisdictions wher~ they are used;

18. Records, whether in hard copy format or stored on electronic media, pertaining to the

specialization or particularization of vote counting software;

19. With respect to electronic/computerized vote recording or tabulation equipment utilizing removable programmable data storage devices ("PROMs"), or other similar memory

storage devices, the following:

a. The "PROM" or electronic memory storage devise itself, intact, and as removed

from the voting machine at the close of the polls; or

b. An electronic record of the program by which votes are to be recorded or tabulated, which is captured prior to the election, and which is stored on some alternative medium (e.g., floppy disks) simultaneously with the "burning" of the PROM

or other memory storage device, and

c. With respect to the output from a PROM or other memory storage device after the

election has been concluded1. In voting systems utiizing individual Precinct Ballot Counters (PBCs) or optical

scanners: the hard copy output from the PROM or other electronic memory storage device used to record and/or to tabulate votes (for example, the "results tape"),

or

33
n. In voting systems using centralized counting devices wherein the results of several PROMs or other memory storage devices are synthesized into a single consolidated output report or "results tape": the hard copy output from each PROM

or other electronic memory storage device, and the hard copy consolidated output

report or "results tape," and the electronic program that was used to read the

individual PROMs or other electronic memory storage devices and by which the

consolidated output report was produced.

20. All other computer programs utilized to tabulate votes electronically;

21. All records generated during recounts, whether in hard copy format or stored on electronic media;

22. The strips or sheets mounted on mechanical lever and electronic voting machines containing candidate names and ballot positions (the "ballot face"), each identified by

machine number and balJot face;

23. The assembled vote recorder pages in precincts using Votomatic equipment, each assembly being identified by precinct;

24. All records beadng iipon plans for, and implementation of, premises security for areas

where voting equipment is stored, where voting and vote tabulation is conducted, and

where voting documentation is stored pursuant to Section 1974, including all records

of breaches of security;

25. Reports on the status of pollng sites at the opening and closing of the polls;

26. Reports produced by voting devices at the opening and the closing of the polls, including testing reports, the zero report, and the results tape;

27. Records pertaining to the service and maintenance of voting equipment at the pollng site;

28. Records of the assignment and delivery of voting equipment to the pollng site;

29. Records of ballot images, or ballot sets, produced by electronic voting devices.

30. All records representing output of computer printers generated in connection with

elections using electronic voting equipment;

31. The "system log" that keeps a record of each entry into the tabulation system (sometimes called the "console log"), in elections using electronic tabulation equipment;

32. Records of the process used to verify the vote-count prior to election certification, in elections using electronic voting equipment (e.g, random sample hand-counts of ballots); and

33. Records reflecting the certification of the outcome of elections, and copies of notifications sent to winning candidates (i.e., "Certificates of Election").

. Originals versus copies

Section 1974 further requires that the original documents be maintained, even in those jurisdictions that have the capabilty to reduce original records to digitized replicas. This is because handwriting analysis cannot at present be performed on digitized reproductions of signatures, and be34
ci:use the legislative purpose advanced by this statute is to preserve election records for their

~videntiary value in criminal and civil rights lawsuits. Therefore, in states and localities that employ

pew digitization technology to archive election forms that were originally manually subscribed by

voters, Section 1974 requires that the originals be maintained for the requisite 22-month period.

lI Election officers must supervise storage

Section 1974 requires that covered election documentation be retained either physically by election officials themselves, or under the direct administrative supervision of election officers. This is

because the document retention requirements of this federal law place the retention and safe-keepipg duties squarely on the shoulders of election officers, and Section 1974 does not contemplate that

tpis responsibility be shifted to other government agencies or officers.

An electoral jurisdiction may validly determine that election records subject to Section 1974 would

:most effciently be kept under the physical supervision of government offcers other than election

officers (e.g., motor vehicle departments, social service administrators). This is particularly likely to

occur following the enactment oftheNVA, which for the first time in many states gives government

agencies other thi:n election administrators a substantive role in the voter registration process.

If an electoral jurisdiction makes such a determination, Section 1974 requires that administrative

p:rocedures be in place giving election officers ultimate management authority over the retention and

sècurity of those election records. Those administrative procedures should insure that election officêrsretain ultimate responsibility for the retention and security of covered election documents and

:records, and that election offcers retain the right to physically access and dispose of them.

. . Retention not required for certain records

Section 1974 -does not apply to surplus voting materials that arê not used in elections where federal candidates were on the ballot. Examples of such surplus materials include unused ballots and

forms, inventories of supplies, payroll and personnel records pertaining to the hiring, training or

payment of election officials; and other documents that do not reflect or embody a step in the registration or the voting process. Section 1974 only requires the retention of documentation that results

iii, or which reflects, an act of registering to vote or voting, or a step in the vote tabulation and

election certification process.

Documentation generated in the course of elections held solely for local or state candidates, or

bond issues, initiatives, referenda and the like, is not covered by Section 1974 and may be disposed of

within the usually shorter time periods provided under state election laws. However, if there is a

federal candidate on the ballot in the election, the 22-month federal retention requirement applies.

. Section 1974 interfaces with the NV

Finally, the retention requirements of Section 1974 interface significantly with somewhat similar

retention requirements contained in the NVRA, 42 V.S.C. § 1973gg-6(i).

The differences between these two provisions are threefold:

First, Section 1974 applies to all records generated by the election process, while Section 1973gg6(i) applies only to registration records generated under the terms of the NVA.

35
Second, Section 1974 requires only that records subject to its terms be retained intact for the

requisite 22-month period, while Section 1973gg-6(i) requires that registration records be both retained and-with certain specifically noted exceptions-be made available to the public for inspection for 24 months.

Third, violations of Section 1974 by election administrators are subject to criminal sanctions, while

violations of Section 1973gg-6(i) are subject only to noncriminal remedies.

. Conclusion

The main rule of Section 1974 warrants repeating:

This statute does not require that state or local election officials or election procedures generate

any specific type or classification of election record. However, if a record is generated, Section 1974

comes into play and requires that the record be retained for 22 months if it falls into one or more of

the grouping presented above.

Compliance with these document retention laws undoubtedly can present administrative challenges for election executives. However, the American democracy depends on the integrity of its

voting processes. The federal document retention law advances that objective by assuring that physical evidence needed to evaluate and prove defects in the electoral process is available to election

executives, investigators, prosecutors and courts. Thus, the quick answer to whatever administrative challenge compliance with these laws may in the short term place on election executives is that

democracy does not come cheaply.

The goal of this paper has been to make that task easier by providing guidance with respect to

many of the important questions that have been presented to me over the past several years by my

colleagues in the election administration community.

Undoubtedly, lhave not been able to answer every question that might arise concerning this subject in this brief piece. That would have been impossible to do. Moreover, as new technologies are

increasingly developed and brought to bear on the election administrative process, new types of

"election records" wil invariably be "born," and additional questions wil continue to arise concerning the application of these election document retention laws to specific types of records produced by

the voting process.

It is not possible for me to answer all of these questions individually. Thus, future requests for

formal answers to questions concerning the application of Section 1974 should be directed to the

Clearinghouse on Election Administration, Federal Election Commission. The Clearinghouse, in turn,

wil coordinate with me the task of providing additional public guidance to the election administration community concerning any significant document retention issues that may remain unresolved.

36