Friday, we reported on a letter from the NH AG and Secretary of State to Clerks and Election moderators across the state. It included a section dealing with voters who wanted hand-counted ballots (emphasis mine).
A voter insisting that their ballot be hand counted should be advised that the town/city has adopted a ballot counting device and by law ballots must be inserted into the device for counting. If the voter nonetheless insists, inform the voter if they refuse to follow the law they will be reported, request and note the voter’s name, but allow the ballot to be placed in the container for ballots to be hand counted. All ballots placed in the container for hand counting should be hand counted, do not later insert these ballots into the device for counting.
I asked the Secretary of State’s Office, “To whom will the voter be reported, for what purpose, and based on what statute, please?” I received a reply via email on Friday afternoon.
As to the question of who, you would be reported to the Attorney General’s office.
7:6-c Enforcement of the Election Laws. –
I. Upon receipt of a signed written complaint, or upon his or her own motion, the attorney general may in his or her discretion, conduct investigations to determine whether any violation of the election laws has occurred and may prosecute anyone responsible for such a violation. In conducting an investigation under this section the attorney general may enlist the aid of the county attorneys, the state police, and other public officers. In the exercise of his or her powers and duties under this section, the attorney general may hold hearings and require the attendance of individuals by the use of subpoena and may require the production of books, documents, records, and other tangible goods by use of subpoena duces tecum. Any testimony required by the attorney general at a hearing which he or she is empowered to hold under this section shall be given under oath. The attorney general shall maintain records of complaints and investigations of alleged violations of the election laws.
You will be reported to the AG’s Office if you insist on having your ballot hand-counted.
But there is no justification for this. The SoS cites both RSA 656:40 and the State Supreme Court ruling in Richard v. Governor, 2024 N.H. 53 (2024) to me in their email, but in my unprofessional opinion, neither would survive even a cursory legal challenge.
656:40 gives towns (with the approval of the Ballot Law Commission) permission to adopt electronic voting machines to count ballots. That’s it. I do not see any mandate prohibiting hand counting. Yes, you can pass a local law to use machines and then follow that ordinance. But it is a law that cannot—as far as I can tell—prohibit hand-counting exceptions.
The letter suggesting poll workers intimidate voters who request hand counting includes special provisions … for hand counting.
For towns and cities using ballot counting devices, the presumption is that ballots will be counted by the device unless the law provides otherwise. Ballots with an overvoted office, Federal Office Only ballots, UOCAVA printed at home ballots, electronic accessible ballots printed at home, or ballots otherwise rejected by the device must be placed in the container for ballots to be hand counted.
This is in the same letter where voters asking to have their ballot hand counted – we now know – will be reported (the State Attorney General), who may consider and conduct, at its discretion, violations of election law.
What law? This is clearly neither a burden nor prohibitive, and neither 656:40 nor Richard v. Governor mandates machine counting, which would have to be true. 656:40 clarifies that towns can choose to use machines to count ballots following whatever local ordinance they passed. Short of a municipality having a ban on “hand counting” enshrined in the ordinance, there’s no “there there,” more so given that the SoS guidance specifically allows a hand-counting bin and hand-counting exceptions that must then be counted … by hand.
As for Richard v. Governor (Case 2023-0097) – maybe they didn’t expect me to read it – while the Court did not agree that machine counting is unconstitutional, it did not support whatever this is the SOS and AG are going. And, in fact – maybe they didn’t read it – the case was remanded for review on the basis that the plaintiff (Dan Richards) “has sufficiently demonstrated his right to claim
relief and has therefore demonstrated standing as to his equal protection claim
set forth in Count II.”
[¶20] The plaintiff alleges in his complaint that “[t]he Defendants’ sanctioning of the discretionary use of voting machine[s] at the local level” violates the equal protection clause of Part I, Article 1 of the State Constitution and the Fourteenth Amendment to the Federal Constitution by authorizing the “use of programmable, open source, electronic vote counting machines in some towns, cities, or other political subdivision[s] of the State or not.” He argues that the State’s action “sets up an unequal election process across the state” wherein “103 communities in the State hand count, while at [the] same time permitting voting machine counts in 135 communities.” According to the plaintiff, this disparity between the methods of counting votes and the “nonverifiability” of ballots submitted by electronic voting machine “at the time of counting and for later auditing (re-counts) of the validity of each ballot/vote” produce “an unreliable outcome and hidden opportunity to manipulate computer-counted data,” thereby depriving him of a lawful count of the ballots and diluting his vote.
Dan has submitted an Ex Parte Emergency Motion for Preliminary Relief (based on the court ruling cited by the SoS) arguing that,
In order for the election process to be free, fair, and equal, this court must either order 103 communities in this state to use machines or it must order the 135 communities to put away their voting machines until the legislature corrects this disparity.
So, what does this all mean?
The request for relief will not result in the state finding hundreds of machines, nor do I suspect the courts will mandate hand counting in 135 polling places – not before Tuesday – so both methods are (for the month) acceptable and must, therefore, be in any town, machine or no,
As a reminder, we are not your lawyers, and per our FAQ, we do not play them on the internet, but you probably come here to get our thoughts, so here’s mine. You have plenty of reasons to distrust the system, and the Secretary of State’s Office knows this. There is some expectation that with high voter turnout on Tuesday, there will also be a more significant number of requests to have ballots counted by hand. The letter is meant to empower poll workers to intimidate voters into putting ballots in the machine to save them time.
I’m not telling you to become ungovernable, but I don’t see how this is anything but an unjustifiable scare tactic to lower the number of perfectly acceptable requests for hand counts. Please read the law and case cited to decide for yourselves.
RSA 656:40 https://gencourt.state.nh.us/rsa/html/LXIII/656/656-40.htm
Richard v. Governor: https://www.courts.nh.gov/sites/g/files/ehbemt471/files/documents/2024-09/2024053richard.pdf
