Proposed Legislation for Ballot Counting in New Hampshire in the Wake of the 2020 Election - Granite Grok

Proposed Legislation for Ballot Counting in New Hampshire in the Wake of the 2020 Election

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The assumption here in New Hampshire is that we will continue to use the AccuVote machines, at least for the next several years, and that the machines are not as good as people when it comes to counting votes.

Here are some ideas for legislation for the 2022 New Hampshire legislative session that deals with ballot counting devices.

If the ballot-counting machines are eliminated, then the first four items below become moot. The other three items would still be important to have.

I fully expect that the Secretary of State will be opposed to all of these ideas.

This article does not advocate for nor oppose the abandonment of ballot counting devices.

I. Enact legislation to require that all ballots which have been folded, in particular, absentee ballots, but also any ballots from in-person voters that may have been folded, creased, or wrinkled (other than minor disruptions to the edges and corners) be held for hand counting after the close of the polls.

It was seen in the Windham Audit and in testimony for 2021 HB-491 that the AccuVote machines do not handle folds or creases very well. This legislation eliminates the folded ballot issue with the AccuVote machines. This allows for absentee ballots to be folded to fit standard envelopes and use normal postage rates.

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II. Enact legislation to require that all ballot counting devices show the number of overvotes for each race on the ballot.

This item and the next are designed to put more visibility on the issue of “machine counted” overvotes. Currently, the machines only show total overvotes for all races and then only on certain reports. The machines are not capable of discerning voter intent. If the machine senses any sort of mark, smudge, or scratch in an oval, it may count that as a vote. This is why all official recounts are hand-counted.

III. Amend RSA 660:2 Fees (for recounts) sections I, II, III and IV in the first sentence of each section “If the difference between the vote cast for the applying candidate and a candidate declared elected shall be…” to read “If the difference minus the number of machine counted overvotes between the vote cast for the applying candidate and a candidate declared elected shall be…”

Again, this item is to put more visibility on the issue of “machine counted” overvotes. This applies to the overvotes recorded on all machines, but not hand-counted overvotes, in all the towns/wards involved in the race to be recounted. This may reduce the fee charged for a recount. If the overvote is not shown for the individual election races, then use the total number of overvotes reported for all races. It may be useful to eliminate the fee if “the difference minus the number of machine counted overvotes” is a negative number.

IV. Enact legislation to allow a moderator the option to verify the device count. Maybe use 2018 HB-1582, An act relative to the authority of the moderator to verify the device count.

In testimony for 2018 HB-1582, there was discussion as to which count was to be reported as “official” the machine tallies with any hand-counted ballots or the moderator’s hand count. Best to use the hand count as official but include the machine reports for the record. This hand count should not prevent an official recount from occurring in the normal way. This bill also had this hand count as being up to the moderator’s discretion to do.

V. For each official recount, require that there be a partial audit of two additional offices on those ballots involved for each recount. The Sec of State or his designee shall select one of the top-of-ballot offices to be audited on all ballots of every recount to be held. The candidate applying for the recount shall select any office not involved in his/her recount or that the Sec of State selected and shall apply to the ballots on this particular recount. Any notable discrepancy trend may be justification for affected candidates to file for a full recount of that race.

Having these additional partial “audits” would help the public feel more confident in the counting process. The Sec of State should select from the offices of: President, US Senate, US Congress, Governor, and Executive Council. In the case of Congress and Exec Council, the various recounts may involve towns/cities in more than one district. The selection of which races to audit should be made early enough for the Sec of State to prepare tally sheets to expedite the recount/audit.

VI. Also, each recount shall count the total number of ballots cast to compare with the original reports from the towns/wards. The number of ballots that had some mark on the ballot that might have caused a machine to sense an overvote or an erroneous vote for a candidate should be counted and evaluated with the machine reports. All this information shall be made public with the recount results.

It was pointed out in the Windham Audit that the recount should have verified the total number of ballots cast. This would confirm that all ballots cast were included in the recount. Evaluating stray marks on ballots would, over the long term, show how big of a problem this is.

VII. Create a path for the general public to request a recount or audit of any race on the ballot. Also, make all ballots accessible via an RSA-91a Right-to-Know request after the election has been certified.

This will help confirm to the public that election is accurate. Having the 91-A request wait until after the election is certified prevents compromises to the ballots until after any recounts and challenges are done.