New Hampshire had only one recount following the state primary on September 10th. The election day difference was two votes. Ultimately, the outcome did not change, but the victory was reduced to one vote. This is not a reason to write a post with this headline, but the recount process revealed some problems.
I’d like to argue that the Secretary of State’s office interprets the law in a way that puts towns at risk while compromising election integrity.
At the recount, an observer asks if they can challenge a box of ballots. The bottom of the box containing ballots is not taped or sealed (beginning at 2:30). The activist is told that no law says “they” have to have red tape (2:50).
She says there is a procedure that we recommend. “We,” being the Secretary of State Office, and “She,” being Erin T. Hennessy, the Deputy Secretary of State. There is a procedure, but first.
It appears that none of the bottoms of the boxes of ballots were taped or sealed correctly (13 sec).
Audio fixed!
That’s Patricia T. Lovejoy, the Senior Deputy Secretary of State.
So, we have it noted and have been told it is a procedure but not required by law, but I think it is.
Emphasis mine.
659:97 Secretary of State to Prepare Containers, Sealers. – The secretary of state shall, before any state election, prepare and distribute to each town and ward clerk containers to be used for preserving ballots and sealers to seal each such container. He shall prepare special containers and sealers to be used for preserving any special and separate ballots for questions to voters. The secretary of state shall prescribe the size and form of such containers and sealers and shall prescribe the form of any endorsement blank printed upon the sealers, provided that the blank is in substance consistent with the provisions of RSA 659:95.
I’m no lawyer, but “to be used” sounds required for the purpose of preserving ballots. And we know this is not optional because 659:98 requires that the Secretary of State’s Instructions be followed.
659:98 Delivery of Ballots to Town Clerk. – The moderator, or the moderator’s designee, and the selectmen, or their designee, after they have sealed and certified the state election ballots as provided in RSA 659:95 and RSA 659:96, shall deliver the sealed containers to the town or city clerk, or to the clerk’s designee, who shall in their presence enter in the appropriate place on each sealer the time of day and shall sign his or her name in the appropriate blank on the sealer. The clerk or the clerk’s designee shall, without breaking the seals or otherwise changing the condition of the containers, deposit the containers in the town or city hall. Containers containing ballots and absentee balloting materials that have been sealed after an election according to instructions provided by the secretary of state shall be stored in a location under the direction of the clerk. A log shall be maintained by the clerk specifying the location and the containers at the location. Once stored, the containers shall be accessible only to individuals working under the direction of the town clerk, as required for recounts, or as necessary for the secretary of state to verify the container storage. When the containers are removed to allow for destruction of ballots in accordance with RSA 33-A:3-a, the destruction of the ballots and absentee balloting materials shall be the final entry in the log.
The only instructions we know of are in the Secretary of State’s election manual, which provides specific directions for taping the carton filled with ballots.
Securely seal each container. First seal up all sides of the box with filament tape. Second, stick the official “Label for Resealing Ballots” on the box. Third, use the red security tape to make a tape seal around the entire box, and along the edge of the label. Then tape down the ends of the label with two short strips of the red tamper-evident tape.
This red security tape will change its appearance if it is pulled loose after being stuck to the box. This “tamper-evident” tape is intended to prove that the box of ballots has not been opened between being sealed on election night and being opened at a recount or a court hearing.
All sides must be sealed, and per the instructions, red security tape must be applied to make a seal around the entire box.
“Seal,” by the way, is defined as “a device or material that is used to close off or fasten an opening or connection,” as well as, “Something, such as a piece of tape, that is placed on a product or package to show that the contents have not been tampered with.” [American Heritage Dictionary].
We surmise that the red tape must “seal” the openings around the entire box. As this is the SoS instruction, state law, as interpreted above, demands it be followed. Despite any disclaimers, written or verbal, the instructions on how to seal ballots must be followed even if they don’t secure the ballots.
It has been demonstrated that the tamper-evident tape (recommended or provided), even when used as required, may not or does not leave evidence of tampering. We also know that the towns and cities are liable, not the state, even though the state’s materials and directions have set them up for potential failure.
By law, assuming someone is willing to accept that 659:98 and 659:97 can be interpreted this way, you must follow the Secretary of State’s directions even though doing so exposes you to potential lawsuits.
So, we have several problems.
First, towns don’t always follow the Secretary of State’s instructions, whether they are the law or not.
Second, the required tamper-evident tape fails to provide the promised security, so the towns have been set up to fail as they are legally liable for election and ballot integrity issues.
Third, even if the Secretary of State’s Office doesn’t interpret the law as requiring towns to follow their instructions, its instructions do not secure the ballots, and it takes no responsibility for this.
Finally, until the instructions include actual tamper-proof tape that works and is properly applied and the towns follow them (with real consequences for failure to do so under law), the only device (the ballots) that can confirm or deny the machine count we are expected to trust is unsecured and can be meddled with.
No one can guarantee that our elections are safe or secure. This is a bipartisan or non-partisan issue.
The legislature needs to fix this.
