Windham Should immediately request the original ballots from Gardner who has them – with no specific statutory authority to KEEP them.
The CLERK, meaning Windham Clerk, by statute (RSA 33-A:3-a. RSA 669:33) is supposed to keep them because this is a LOCAL recount, not a STATE recount.
Gardner can claim he has the right to destroy them after 60 days but that is not a specific, authorized, act. You better have a promise from him to follow the law. Windham has an exclusive right to the ballots.
The AUDIT is unique but recount laws prevail. (emphasis mine, reformatted).
660:5 Conduct of Recount. – If directed by the secretary of state, the state police shall collect all ballots requested from the town or city clerks having custody of them and shall deliver them to the public facility designated by the secretary of state. At the time and place so appointed, the ballots cast for such office shall be counted by the secretary of state and such assistants as the secretary of state may require.
When counting the ballots, the secretary of state or his or her assistants shall visually inspect each ballot. No mechanical, optical, or electronic device shall be used for the counting of ballots. The candidates, their counsel, and assistants shall have the right to inspect the ballots and participate in the recount under such suitable rules as the secretary of state may adopt. If the candidate requesting the recount cannot attend the recount, the candidate shall designate, in writing, to the secretary of state the name of an individual who will attend the recount and who will be authorized to make decisions on the candidate’s behalf.
Each candidate or his or her counsel or designee shall have the right to protest the counting of or failure to count any ballot. The secretary of state shall thereupon rule on said ballot and shall attach thereto a memorandum stating such ruling and the name of the candidate making the protest. If, at any time during the counting of the ballots, a discrepancy appears in any ballot for any reason, the secretary of state shall suspend the recount until the discrepancy is resolved, at which time the secretary of state shall continue the recount. In no event shall a discrepancy result in a second recount for the same candidate, as provided in RSA 660:3.
Source. 1979, 436:1. 1981, 510:4. 1983, 175:5. 2006, 41:1. 2007, 136:1, eff. Aug. 17, 2007.
660:3 Number of Recounts. – Any candidate for whom a vote was cast for any office at a state general election, provided that the difference between the votes cast for the applying candidate and a candidate declared elected is less than 20 percent of the total votes cast in the towns which comprise the office to be recounted, shall be entitled to apply for only one recount under this chapter, and the declaration made by the secretary of state under RSA 660:6 shall be final, subject to a change in the result following an appeal to the ballot law commission, as provided in RSA 665:8, II. If more than one candidate for the same office in the same district applies for a recount under this chapter, and a recount is completed, such applications shall not result in a second recount.
Source. 1979, 436:1. 1983, 175:3. 2003, 151:3. 2008, 377:4, eff. Sept. 9, 2008.
660:6 Declaration; Certificate. –
I. If the recount shall show that some candidate other than the one declared elected upon the original canvass of votes has the greatest number of votes cast for the office, the secretary of state shall declare said candidate to be elected; and, unless the result is changed upon an appeal taken to the ballot law commission, as provided in RSA 665:8, II, such candidate shall be entitled to a certificate of election.
II. If any person who has applied for a recount is declared elected by reason of said recount, the secretary of state shall return to the person within 10 days of the recount all fees paid at the time of applying.
III. If any person who has applied for a recount loses the recount by a margin of less than one percent of the total votes cast in the towns which comprise the district for the office recounted, the secretary of state shall return to the person within 10 days of the recount any fees that were paid in excess of those required by RSA 660:2, I.
Source. 1979, 436:1. 1995, 69:4. 2003, 151:4, eff. Jan. 1, 2004.
660:15 Declaration of Result. – If after the recount it shall appear that the result of the voting on said question is other than that announced by the moderator at the election, the secretary of state shall declare said result which shall be final unless the result is changed because of an appeal taken within 10 days to the ballot law commission.
Source. 1979, 436:1, eff. July 1, 1979.
660:16 Disposal of Ballots. –
I. Upon the conclusion of every recount, the secretary of state shall replace the unprotested ballots and absentee voter envelopes in a suitable container for storage. The secretary of state shall retain the ballots and the absentee envelopes for at least 60 days following the recount. Upon an order of the ballot law commission, the secretary of state shall produce the ballots for the inspection of the commission. Following the commission’s inspection, the secretary of state shall replace the ballots and envelopes, seal them, and certify the contents and the date when they were examined by the commission. The envelopes and ballots shall be subject to the order of the body to which such person claims to be elected or of the officers required by law to examine the records and to issue certificates of election to such office or of any court having jurisdiction over them.
II. Ballots, including cast, canceled, and uncast ballots and successfully challenged absentee ballots still contained in their envelopes, prepared or preserved in accordance with the election laws shall be exempt from the provisions of RSA 91-A.
This exemption shall apply to any ballots or absentee voter affidavit envelopes prepared for or used in any election conducted by the state or any political subdivision, including federal elections.
Source. 1979, 436:1. 1981, 454:9. 2003, 289:61, eff. Sept. 1, 2003.
TOWN ELECTIONS (Such as in the case of Windham the Windham Town Clerk has a responsibility to retain the ballots)
Recounts
669:32 Board of Recount. – At the time and place so appointed and notified, the clerk shall publicly break the seal of and open the package in which the ballots of said election are kept; and, thereupon, said ballots shall be recounted by the clerk, the moderator, and the selectmen of said town who shall constitute the board of recount. When counting the ballots, the board of recount or their assistants shall visually inspect each ballot. No mechanical, optical, or electronic device shall be used for the counting of ballots. Any member of the board of recount who is one of the candidates for the office being recounted shall disqualify himself or herself from the board of recount for all official duties of said board. The moderator shall appoint an assistant who shall take the same oath as, serve in the same capacity as, and have all the powers of the recount official whom he or she has replaced.
Source. 1979, 410:1. 1981, 454:15. 2006, 41:5, eff. June 17, 2006.
669:33 Preservation of Ballots After Recount. – WINDHAM
I. Upon the conclusion of the recount, the clerk shall place the ballots and all envelopes or wrappers which had previously contained them in a suitable container showing the contents and the date when and the reason why it was opened; and said clerk shall retain said ballots until the expiration of 60 days from the date of the recount unless some action is pending which makes their further preservation necessary or unless enjoined by action brought before the superior court.
II. Ballots, including cast, cancelled, and uncast ballots and successfully challenged absentee ballots still contained in their envelopes, prepared or preserved in accordance with the election laws shall be exempt from the provisions of RSA 91-A. This exemption shall apply to any ballots or absentee voter affidavit envelopes prepared for or used in any election conducted by the state or any political subdivision, including federal elections.
Source. 1979, 410:1. 1981, 454:16. 2003, 289:62, eff. Sept. 1, 2003.
SB43
IV. Windham shall be responsible for transport of the machine counting devices used in the general election on November 3, 2020, to the audit location and for the return of the devices to Windham upon completion of the audit.
The secretary of state and attorney general shall be responsible for the transport of the ballots to the audit location and for the return of the ballots to their storage site.
The secretary of state and attorney general shall also be responsible for arranging.
the security at the location where the audit occurs.
2:7 Authority to Unseal Ballot Boxes. The secretary of state and attorney general shall have authority to unseal the ballot boxes in order to conduct the audit. The ballots shall be boxed and sealed after the audit in accordance with the procedures of RSA 659:95.
659:95 Sealing and Certifying Ballots. –
I. Immediately after the ballots cast at a state election have been tabulated and the result has been announced and the return has been made, the moderator or the moderator’s designee, in the presence of the selectmen or their designee, shall place the cast, cancelled, and uncast ballots, including such ballots from any additional polling places, and further including the successfully challenged and rejected absentee ballots still contained in their envelopes, in the containers provided by the secretary of state as required by RSA 659:97 and shall seal such container with the sealer provided by the secretary of state as required by RSA 659:97. The moderator or the moderator’s designee shall then enter in the appropriate blanks on such sealer on each container the number of cast, cancelled, and uncast ballots in such container and shall endorse in the appropriate place on such sealer a certificate in substance as follows: Enclosed are the ballots from the state election in the town of _________ (or in ward _______________ in the city of _________________) held on __________, 20___, Box _____ of _____, to be preserved in accordance with RSA 33-A:3-a. The moderator and the selectmen or their designee shall sign their names in the appropriate blanks on the sealer.
II. Ballots, including cast, cancelled, and uncast ballots and successfully challenged and rejected absentee ballots still contained in their envelopes, prepared or preserved in accordance with the election laws shall be exempt from the provisions of RSA 91-A. This exemption shall apply to any ballots or absentee voter affidavits prepared for or used in any election conducted by the state or any political subdivision, including federal elections.
Source. 1979, 436:1. 1985, 292:1. 2003, 289:60. 2010, 317:81, eff. Aug. 16, 2010 at 12:01 a.m.
XXXVI. Elections-federal elections: ballots and absentee ballot applications, affidavit envelopes, and lists: by the town clerk until the contest is settled and all appeals have expired or at least 22 months after the election, whichever is longer.
XXXVII. Elections-not federal: ballots and absentee ballot applications, affidavit envelopes, and lists: by the town clerk until the contest is settled and all appeals have expired or at least 60 days after the election, whichever is longer.
XXXVIII. Elections-challenge affidavits by the town clerk: until the contest is settled and all appeals have expired or 22 months after the election, whichever is longer.
Note: Featured Image is of NH Ballots from a NH Executive Council Race Recount
