At the hands of the Secretary of State & the Election Law Committee
We have a classic “Catch-22” situation here in NH. Part II, Art. 32 of the NH constitution has been ignored by state and local officials for so long that they assume or pretend it doesn’t exist.
HB 1223 (relative to the moderator’s authority to verify the device count during an election) addresses this issue and restores the Moderator’s authority, usurped by the Secretary of State and the City Clerks for many years.
As per Part II, Article 32, of the New Hampshire constitution, the Moderator, not the Secretary of State, the Attorney General’s office, or a City Clerk, governs the election. As per NH Supreme court precedent, “Opinion of the Justices, 53 N.H. 640 (N.H. 1873)”, the correct time to correct any errors and verify all vote counts & totals, is “On election night”, by the Moderator and Selectmen.
This opinion clearly states that Town, City, and Ward clerks HAVE NO PART in this process. The clerk’s job is to document the results and report them, not to get involved in the counting or sorting of votes. Numerous RSA’s have been written in direct contradiction to Part II, Article 32 and they are the corroded foundation on which NH elections have sat on since the tabulators where introduced.
It is well known that the tabulators can be programmed to churn out whatever results the programmer wants. See here:
So in fact, whoever controls the programming of the memory cards controls the results of elections here in NH. Therefore, it is the duty of the Moderator to verify that the tabulators are working correctly by the means that they choose. Afterall, As per Part II, Article 32, the Moderator, shall GOVERN the election and in the presence of the Selectmen receive, sort and count the votes and make a public declaration there of.
Am I saying that the tabulators are being purposely misprogrammed in order to throw elections? No, I am not. What I am saying is that the possibility exists and that this is a vulnerability that has to be addressed. It is the Moderator’s duty to address it to the best of their ability. Supplemental hand counts, which were done as a matter of course by Moderator’s from 1978 until 2016, are the best way to do it. For reasons unknown in 2016 the SoS and AG’s office began threatening Moderator’s with prosecution for performing this quality control check of tabulators.
As it stands now, if a Moderator, like myself, attempts to perform a quality control check (i.e. Supplemental hand count during the end of night ballot reconciliation process) in order to verify that the tabulators are programmed correctly, the AG, with the blessing of the SoS, will threaten them with having committed a crime and that official will be then be subject to the punishment therein.
This happened to me during the November 2024 state and federal elections. I was going to have my poll workers perform a supplemental hand count prior to the certification of the election results. My ward clerk called the AG’s office to report this and handed me her cell phone. Dick Tracy of the AG’s office was on the other end of the line and he proceeded to tell me, in less than polite words and a very threatening tone, that if I put the ballots in more than one pile, counted up the totals of a race and compared those totals to the tabulator tape that I would be committing a crime and that I would face prosecution. Let me tell you, that was not a great way to end a 20-hour day.
The ”Catch-22 is that if the voters sue the SoS for the tabulators not working as intended and influencing the outcome of any election, the AG and SoS will say that is the responsibility of local election officials to verify the accuracy of the tabulators. Afterall it is the local officials who sign off verifying that the tabulators are working as intended.
If a Moderator performs their duty as per their oath and the NH Constitution and performs a quality control check to verify that the tabulator is working as intended, i.e., a supplemental hand count of a race during the end of the night ballot reconciliation process, they will be charged with committing a crime. I ask you, could you work under these conditions?
It’s time to get the SoS, AG, and the powers at City Hall out of our elections. It is the duty of the SoS and City Clerks to facilitate the election process, not lord over it, create centralized control and prevent Elected, election officials from performing their duties.
Moderators, who are given the duty and power to “Govern the election”, MUST BE allowed to do their jobs w/o interference or coercion by the powers that be in Concord and at City Hall.
HB 1223 is needed because the powers that be in Concord and in City Hall are ignoring the NH Constitution. HB 1223 was voted ITL 17 – 0 by the Election Law Committee, which IMO proves that it was over the target. The prime sponsor of HB 1223, State Rep. Kevin Scully, will be taking the bill off the consent calendar and bringing it to the floor next week for a vote. Please call your state reps and urge them to support Rep. Scully in his efforts. Election integrity and honest election outcomes depend upon it.
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