Dear Attorney General MacDonald, his assistants and Honorable legislative leaders,
1. In Sept. 2017 three citizens notified AG MacDonald that NH was in violation of HAVA law, section 301 (a), which requires election day voters using the computer to be notified of over votes so they can correct/or request a replacement ballot if they choose.
2. The AG took no action on this information and I attempted to fix this problem legislatively in 2018. The Deputy SoS testified against the bill, saying NH was in compliance. The legislative committee didn’t support the bill.
3. On Nov. 20, 2019 Assistant AG Chong Yen notified me that the AG believes NH is in compliance with the law and no appeal is possible to the Ballot Law Commission (RSA 665:9-a Administrative Complaint Resolution. – The ballot law commission shall hear and resolve complaints of federal voting law violations, pursuant to the Help America Vote Act of 2002, Public Law 107-252, as provided in RSA 666:14.Source. 2003, 266:11, eff. Jan. 1, 2004.)
4. NH’s 2005 State Plan dated June 24, 2005 says: Note: See NHHAVA05 attached.
p. 11 Section 301(a), Voting Systems Standards Requirements
Deadline for Compliance: January 1, 2006; no waiver permitted
p. 12 Optical scanning devices in use in New Hampshire have the capability to detect and report over votes - ballots where the voter has voted for more candidates than allowed. The optical scanners will be set to reject such ballots, affording voters the opportunity to correct over votes.
p. 34 Performance Goal 1: Voting Accessibility
Improving voting accessibility, as required by HAVA, which shall include accessibility for individuals with disabilities as determined in Title III, Section 301 of HAVA, will be accomplished by the Secretary of State and town and city election officials in two steps:
AG and SoS are responsible for ensuring each performance goal is met.
5. As of today, neither the Secretary of State nor AG have shown NH was given a waiver for this particular requirement (and it appears the law didn’t allow for one) or that any other state has interpreted the law as the SoS and AG have.
6. Instead of the SoS and AG proposing the legislation to codify this HAVA requirement, Deputy SoS David Scanlan and Assistant AG Bud Fitch, snuck through a non-germane amendment to a HAVA required bill (HB 627) in 2003 exempting ballots from public records law.
7. In 2014-16, the AG and SOS argued against and the court denied me access to Nov. 2012 Jaffrey ballots “to determine why 71 ballots (2.5% of the 2,843 tabulated by the AccuVote) contained over votes, therefore invalidating votes of 71 individuals.”
IF there was fraud, the AG and SoS argued in favor of hiding the evidence.
It now appears that NH has been illegally disenfranchising unknowable thousands of voters since Jan. 2006 and that our NH elections have been subject to at least four KNOWN possibilities for election fraud with over voted ballots with the AccuVote system NH uses. Those specifics are known by the SoS, AG, NH governor and others and yet the AG still refuses to enforce the law.
Apparently, NH accepted federal HAVA money which REQUIRED that compliance (and eliminated three of those fraud possibilities) and it appears individuals in the SoS and AG office mislead the federal government.
WHO should investigate what appears to be an extremely significant error by the Attorney General and Secretary of State? A state agency, or should this be referred to a federal agency for investigation?
I would appreciate a response ASAP and by Dec. 18 at the latest.
In the meantime, legislative leaders should make it very clear they expect the AG to begin enforcing this law so voters in the February Presidential Primary will not be illegally disenfranchised.
474A Great Rd.
Jaffrey, NH 03452
copies: Jaffrey legislators, Ballot Law Commission chair
PS I believe it is in all of our interests to resolve this as quickly and quietly as possible. I will include legislative leaders in a communication I will send out tomorrow to people I have been updating along the way.
2. Oct. 4, 2020 Pattern of Criminal Intent
Subject: Re: David Scanlan and Bud Fitch, continuing misleading, of local election officials this time
Date: October 4, 2020 at 6:45:08 AM EDT
Let the record show:
1. Mr. Chong Yen has not acknowledged receipt of the previous communications, copied below.
2. My knowledge of the pattern of criminal intent involving individuals in the NH SoS and AG offices begins in 2003, when instead of codifying this provision of HAVA law, they and legislative allies violated legislative rules and code of ethics to exempt ballots from public records.
3. Before the November 2010 election, an individual in the SoS office interfered with the Jaffrey moderator’s decision to verify (by hand counting) the computer count of one of the two federal races on the ballot. The moderator has previously sought AG advice and knew he could do this, yet this AG individual did not stop the SoS individual from interfering in the Jaffrey election.
Reports of law violation to the Attorney General after the November 2010 election were ignored. Those violations involved the Secretary of State’s office.
4. When November 2010 ballots from Jaffrey were reportedly illegally destroyed before the court could decide whether to give me access, the AG ONLY issued a cease and desist order to prevent the Jaffrey town clerk from repeating that action. He did NOT investigate to determine WHEN those ballots were destroyed or whether someone had advised her to destroy them.
The AG individual heading that investigating also represented the State in my appeal of the first court case to the NH Supreme court.
5. In my second attempt to review Jaffrey ballots after the November 2012 election, the same AG individual represented the state, arguing against access. The lower court gave its opinion based on provably false claims by the SoS and AG and the Supreme Court did not correct the error.
6. I discovered a “material fact” that would probably have changed the outome of the case after the court’s March 2016 opinion and reported it to the AG in November 2017. He took no action against the SoS individual who KNEW the state’s main argument was false.
7. In October 2016, the AG and SoS took illegal and unconstitutional action against a town moderator, thus “forbidding” local election officials to fulfill their constitutional duty to voters to ensure a legitimate count.
Legislative leaders took no action on a request from citizens to independently investigate the SoS and AG action.
8. The violation of federal law was reported to the NH AG in Sept. 2017. His non-action gave permission for individuals with the right connections and opportunity to continue cheating in NH elections.
9. In January 2018, two individuals in the SoS office collaborated to misinform a legislative committee about NH’s compliance with federal law. House leadership of a particular party also opposed HB 1486.
10. Beginning May 2018 through today, the USDOJ has taken no action on the reported federal law violation, thus giving these same individuals permission to continue cheating.
11. On Oct. 18, 2019, Governor Sununu gave his written permission for those individuals to continue violating the federal law requirement and cheat in NH elections.
12. On November 20, 2019, the NH AG gave his written permission for those individuals to cheat.
13. One particular September 2020 contest shows evidence that cheating MAY have occurred and votes from thousands of NH voters stolen. There may be others I’m not aware of yet. Because of the pattern of criminal intent shown by individuals in the AG and SoS offices, an outside, investigation would be needed to determine whether this cheating did or did not occur.
14. I will forward this thread to legislative leaders for their review and ask them WHO should investigate the September 2020 contest and to initiate a truth and reconciliation process that would 1) remove criminal penalties from those involved in what appears to be criminal conduct 2) let the public hear the truth of our NH elections so we can help prevent this kind of treasonous conduct from re-occurring in the future.
15. The next communication will be with House and Senate ELC chairs to see how we can return NH elections to the “rule of law” consistent with our constitution and vision of our ancestors.
PS At least 13 of my NH ancestors fought in the Revolutionary War from NH. My dad, born and raised in NH, and the source of my deep roots here, was a doctor in WW II.
Subject: Fwd: David Scanlan and Bud Fitch, continuing misleading, of local election officials this time.
Date: October 4, 2020 at 6:48:14 AM EDT
I suggest you ask either the House or Senate counsel (or both) to contact me to determine the best way to proceed.
3. March 8, 2021 URGENT: Documentation Requested, RSA 91-A
Subject: Re: URGENT: Documentation Requested, RSA 91-A
Date: March 8, 2021 at 3:30:44 AM EST
To: Katherine Prudhomme Obrien <k...@leg.state.nh.us>, David Scanlan <David....@SOS.NH.GOV>, barbara...@leg.state.nh.us, elephant...@msn.com, Natali...@leg.state.nh.us, Joe.S...@leg.state.nh.us, Peter Hayward <Peter....@leg.state.nh.us>, maureen...@leg.state.nh.us, flybi...@aol.com, Ro...@berryfornh.com, fento...@gmail.com, Jim.Q...@leg.state.nh.us, David Cote <david...@leg.state.nh.us>, Gerry Ward <ward4s...@gmail.com>, "Bergeron, Paul" <Paul.B...@leg.state.nh.us>, Catt Sandler <Catt.S...@leg.state.nh.us>, Heidi Hamer <Heidi...@leg.state.nh.us>, Connie Lane <Conni...@leg.state.nh.us>, Mary.F...@leg.state.nh.us, joan.h...@leg.state.nh.us, russmu...@gmail.com Cc: Anne...@leg.state.nh.us, pkatsa...@comcast.net, Maryann_...@yahoo.com, Erica...@leg.state.nh.us, davidl...@gmail.com, david...@leg.state.nh.us, Steve Pearson <Steve....@leg.state.nh.us>, John.P...@leg.state.nh.us, richar...@leg.state.nh.us, Regina Birdsell <regina....@leg.state.nh.us>, James Gray <james...@leg.state.nh.us>, Orville Fitch <Orvill...@sos.nh.gov>
I am including my finding that NH is NOT in compliance with the HAVA election day notification requirement and my unsuccessful attempt to resolve this informally with the AG and SoS last year. It includes Mr. Fitch’s and Mr. Chong Yen’s opinions, but as you can see I do not have the USDOJ’s opinion saying it agrees.
I did, however, have a conversation with USDOJ attorneys before the 2020 Presidential Primary. My understanding is they also with talked the Secretary of State. I’m specifically looking for a copy of a waiver from the requirement from the federal government OR an opinion/letter or other communication from the USDOJ saying it agrees with Mr. Fitch’s opinion.
Gov. Sununu does agree with it.
I’ve clarified one of the questions in red below.
As bccs, I’m including staff members from Sen. Shaheen’s and Rep. Kuster’s offices who tried to help me get an answer from the USDOJ (beginning in 2018). I didn’t get one. Perhaps with a new US Department of Justice we can get an answer this time.
See attached HAVA PDF files.
House ELC members, I request that you postpone your executive session on HB 480, HB 491 and SB 43 until we clear up some questions and see if we can address the Derry overvote question before you make a recommendation to the full House. It’s scheduled for March 8.
Dear Rep. Prudomme-O’Brien and Mr. Scanlan,
Since we have the alarmingly high number of overvoted ballots in Derry from the November election (particularly with absentee ballots) and the AG has taken no action on investigating WHY (Dec. 2, 2020 request below), will the two of you work with the House Election Law Committee and the Attorney General and arrange a process for reviewing those ballots before the ELC votes on these three bills?
The House could amend SB 43 to allow that review in Derry for this specific purpose. (Sen. Gray or the ELC may have a better idea!)
The Windham example shows that there can be a way to resolve election questions that the AG has chosen not to investigate. You should be able to work out a similar resolution for Derry.
As you know, there are four known possibilities for fraud with AccuVote overvotes and Mr. Scanlan acknowledged in his SB 79 testimony that 2-3% of legal votes are typically NOT counted by the scanner.
Yet, the overvote ballot rate alone in Derry was 4.7%. (There may have been additional legal votes that weren’t counted.)
Four questions for Mr. Scanlan:
1. Please send me a copy of a written waiver or letter from the US Department of Justice saying it has approved Mr. Fitch’s and your interpretation of the HAVA overvote notification law. You told me in 2018 that there was no waiver. I requested the same from Mr. Gardner last September but never received anything. He said Anthony Stevens would have it if there was something in writing.
2. You and Mr. Fitch say NH is treating all voters alike. So, if 2-3% of legal votes aren’t counted by the scanner (and that does fit with the information I have), please send documentation that shows 2-3% of legal votes in hand count towns are not counted election night.
I’ll share it with the House Election Law Committee so they have accurate information to make this very important policy decision. I’ve let Mr. Chong Yen know that I am very disappointed that the committee didn’t have this important information prior to the HB 491 hearing.
3. What does the Secretary of State’s office consider a “normal rate” for overvotes? The information I have from your office last September is 1 in 1000 votes/contest. Is this correct?
4. Please send documentation to show that the overvote rate for handcount towns and computer count towns are about the same, verifying your claim that voters in hand count and computer count locations are given an equal chance to have their votes counted.
Thank you for your attention to this very important matter re: election integrity and promoting confidence in the NH election system.
474A Great Rd.
Jaffrey, NH 03452
PS to Rep. KPO I never received a response from you or Sen. Birdsell to my Jan. 16 request that you follow up on the high overvote question with the Attorney General.
copies: Bud Fitch, Sen. Birdsell, Sen. Gray, Reps. Pearson, Copp, Katsakiores, Kimball, Layon, Love, Milz, Potucek, and Tripp
Subject: Request for Investigation, high overvoted ballot rate in Derry/absentee ballots statewide
Date: December 3, 2020 at 9:48:17 AM EST
December 2, 2020 (sent by regular mail, emailed Dec. 3)
Gordon J. MacDonald, Attorney General
NH Department of Justice
33 Capitol St.
Concord, NH 03301
Re: Request for Investigation, high overvoted ballot rate in Derry/absentee ballots statewide
Dear Mr. MacDonald,
1) We ask you to use your authority under RSA 656:42 IV to investigate an alarmingly high overvoted ballot rate in Derry for the November 2020 election. Derry reported a total of 6,428 absentee ballots of 18,100 ballots cast. Some would be overseas ballots and others tallied by hand.
Enclosed is information from the eight computers used. Computer one tabulated ONLY absentee ballots (572 over voted ballots, 14.2%); other absentee ballots were counted by other computers, with a 4.7% overvoted ballot rate when totals are combined (848 ballots). Computer 5 also showed a high overvoted ballot rate, 5.8%.
You should be able to confirm the numbers with the town clerk.
In November 2018, Derry mostly tallied its absentee ballots on one computer, with an estimated 5% overvoted ballot rate for that computer.
2) Are absentee ballots statewide showing a significantly higher voter disenfranchisement rate than election-day ballots?
3) If so, why? What are your recommendations for decreasing these numbers?
As we told you in September 2017, folds in absentee ballots may be misread as overvotes, there are many instances of computers misreading valid votes as overvotes and there are fraud possibilities. One can be targeted to absentee ballots where the voter’s party affiliation is known.
Since then, we have been doing some checks of overvoted ballots in various towns, but prior to this discovery, the highest was 2.5% in Jaffrey in the Nov. 2012 election.
NH doesn’t require reporting of overvotes and neither law nor the SoS requires local officials to print that information for the general election. (Only 2 of Nashua’s 9 wards had the requested overvote information available, 143 overvoted ballots of 10,702, 1.3%). It is impossible to know why or how many NH voters are being disenfranchised compared with other states or if certain races are impacted more.
Both Vermont and Massachusetts program their computers to notify election-day voters of a computer-read overvote or completely blank ballot so they can choose to request a replacement ballot and have their votes counted. NH doesn’t.
VT reports overvotes for each contest and each locality, as you can see here.
Overvote rate for President on election night was 278 of 370,968 ballots cast, .075%.
MA has recently completed its 3% post-election audit and found a total of 7 overvotes for all races counted on election night (100,349 ballots/over vote rate of .007%). Additional overvotes found in the audit (68 total for ALL races) were mostly attributed to 73 ballots not counted on election night.
In NH, we are finding overvoted ballot rates almost always exceed 1%. Ballots may contain more than one error, thus disenfranchising voters for more than a single contest.
All three states had more absentee ballots this past election, but we see significant overvote voter disenfranchisement only in NH.
We ask that any review of Derry ballots be a transparent, public process and that your findings include recommendations to policy makers, election officials and or the Ballot Law Commission, which makes rules for the use of computers in NH. RSA 659:64 requires that NH enfranchises as many voters as possible. Appeal of McDonough, 149 N.H.105, 112 (2003).
Thank you. Please let us know if you have any questions.
Deborah Sumner Barbara Glassman Gerhard Bedding
Copies: Derry Town Moderator, Ballot Law Commission, ACLU-NH, DOJ attorneys-Anne Edwards, Jane Young, Nicholas Chong Yen
See attached Gen. Election Overvotes file