On March 8th, the Election Law committee voted 11-9 to ITL HB-491. HB-491 should get another look before the House kills it next week. This bill would require that the AccuVote machines be programmed to return the ballot to the voter if it reads an overvote (voting for more candidates than will be elected).
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This is required by the Federal HAVA section 301 laws on elections where federal offices are on the ballot but Deputy Secretary of State Scanlon testified that we have qualified for exemption from this requirement.
The result of this bill allows the voter to correct his or her ballot before the ballot is counted by the machine or if not, then held for hand count at the end of the election day. Absentee ballots that are rejected due to overvote would also be held for a hand count. There may or may not be an actual overvote but possibly a machine reading error instead.
Mary Till, Derry Town Moderator, testified that last November 3, of 8 AccuVote machines, there were nearly 850 overvotes recorded. Of these over 750 overvotes were from the one machine used only for absentee ballots. It is thought that the creases from folded ballots may cause a shadow that the machine reads as a mark.
This was reported and a request made for an investigation to the Attorney General’s office but other than acknowledgment of receipt of the mail, no response had been made as of the day of the bill hearing. If creases cause a misread, then certain candidates may be more affected than their competitor due to where the creases usually occur if the crease goes through one or more of the ovals.
Nearly 850 overvotes mean that nearly 850 voters’ intentions were ignored on one or more offices on their ballot. This sounds as bad as the Windham situation. The good news is that having the machine return the ballot when it can’t read it correctly, especially absentee ballots and held for hand count may clear most of this kind of problem.
A stray pencil mark may not be noticed by the voter but the voter’s intent would be obvious in the hand count. Many voters may not realize that they can get a replacement ballot if they can’t fix a mistake.
This bill is intended to deal with an issue that is specific to electronic ballot-counting machines.
Deputy Secretary of State Scanlon testified “To make sure that voters are treated the same way uniformly across the board, New Hampshire does not reject overvoted ballots that go through the machine.” But voters are not treated the same because not all towns use electronic ballot-counting machines.
Interestingly, this would also eliminate two possible ways in which machine fraud can happen. First, if the machine is programmed in such a way as to occasionally misread ballots and thus record a zero vote due to overvote, this would return the ballot for the voter to inspect for problems.
Second, if some of the ballots were pre-marked with carefully placed but inconspicuous marks or with “invisible” ink, then if a person voted for a candidate other than the pre-marked candidate, then the machine could report an overvote and count no vote for that office. (I have not seen any documentation that the Accuvote machines could sense such markings, but if so, returning the ballot would stop this manner of fraud.)
Any other machine programming errors, whether accidental or nefarious, would not be detected by this overvote process. Invisible ink and small, carefully placed marks are the only non-programming way of tampering with the voting process.
There was testimony that this would create two classes of voters: those that could fix their ballot and those that didn’t get that option. The second class of voters would be absentee ballot voters and those in hand-count towns.
There are some possible ways to help remind voters to be more careful with absentee voters and voters in hand-count towns but there would still be this issue. But again, this bill is intended to deal with an issue that is specific to electronic ballot-counting machines.
This bill is worth another look before the House votes on it next week during their three-day session.
The hearing for HB-491 is at time 1:18:02 in https://www.youtube.com/watch?v=XJDv3sAyPyk
The executive session is at time 4:34:04 in https://www.youtube.com/watch?v=4hTuMQTt2JQ