More than 45 days of notices to towns, the Ballot Law Commission, and the Secretary of State have gone unanswered. No one has opened a single ballot-counting machine that a town has already bought. The September 17 presentation, the September 23 statewide notice, and the September 28 Attorney General complaints all asked the same thing: show us the machines have no network access. The October 19 hearing produced nothing. With the midterms days away, nine state representatives have now written the Commission and Secretary Scanlan themselves.
Representatives Susan DeRoy, Richard Nalevanko, Glenn Bailey, Diane Kelley, Claudine Burham, Mary Murphy, Tom Kaczynski, JD Bernardy, and Michael Harrington say the Commission and the Secretary of State have not done the job the statute requires. They stepped in because the earlier notices and complaints produced no examination, and the towns still bear the risk.
RSA 656:41 says the Commission must examine the devices that count ballots. A machine cannot be used unless it is of a type the Commission approved, and any change requires re-approval. RSA 656:42, X says no electronic ballot-counting device shall have access to or be connected to the Internet. The Commission’s own 2021 standard and BLC Order 2023-3 required no networking capacity. Neither has been checked on the machines in the towns.
At the October 19 hearing, the Secretary of State’s office pointed to vendor statements and limited laboratory and Logic & Accuracy tests. Nashua Ward 9 Moderator John Cawthron, a senior systems analyst, told the Commission he recorded radio-frequency readings from an ImageCast on primary day. No one on the Commission asked him a real question or asked for the data. No machine was ordered opened. Contracts in multiple towns keep officials from opening the sealed computers. In 2010, the Commission itself ordered machines opened and networking gear removed before it would re-approve them. That has not happened this time.
The letter points out that laboratory testing is done on a sample the vendor supplies. It does not look at the scanner, its firmware, or the computer. For the ImageCast machines in use, the federal lab accepted a company letter instead of testing the telecommunications path, while their own user manual identifies a wireless modem in their machine. Towns have no parts list and no right to open the units they bought.
A civil rights complaint and a HAVA Title III complaint went to the Department of Justice on October 24. Still, no acquired machine has been examined.
Towns have to decide how they are going to run their elections. They bear the consequences of using unexamined machines. The paper ballot is still the official record. Leaving the machines unexamined before the midterms leaves the network question open and gives a clear basis for challenge. The Commission can still order the machines opened. The letter asks for a bill of materials, inspection of a sample of units, confirmation of what towns bought, re-approval where needed, and clear guidance that a vendor statement is not enough.
Secretary of State David Scanlan stated during the hearing, “We have never said these devices are foolproof and that it is impossible for them to be hacked,” yet 96.5 % of all registered voters are set to have their ballots run through these machines. Under RSA 656:42, XII, instead of placing the ballot into the machine, a voter may request that their ballot be hand-counted rather than run through the device. It will be placed in a hand-count slot on the side of the machine. After the polls close, election officials sort and count the ballots in the open in front of bipartisan observers.
Given the lack of examination, the hand-count option is now the only safe choice. The midterms will not wait.
NH Voter Integrity Group – 5000+ supporters
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