Response to Professor Hurn September 30, 2016

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Deborah Sumner

Oct 2, 2016, 4:47:26 AM10/2/16
See Keene Sentinel Article linked here:

Dear Professor Hurn,

According to your web page, you are not an expert in election law. You believe that Judge Dillon’s opinion (he was not from NH) trumps the rights given us in our NH Constitution and a legal precedent that has stood in NH since 1873. I respectfully disagree.

pt. II, art. 32 says that the moderator “sort and count” votes in “open meeting” in the presence of the town clerk, selectmen and “all others who may take an interest in the election, and be able and willing to detect and expose any error, and obtain a correction of it immediately, when it can be most easily corrected.Opinion of the Justices, 53 N.H. 640, 1873 

            ..."In various election cases there are various methods of correcting an error of the moderator, not corrected by himself in the count and declaration. It does not occur to us that any case could arise in which there would be no remedy for such an error...."Id. 643

What was unimaginable in 1873 is the reality in computer count towns today. (now “counting” 87.5% of all NH votes). The moderator signs the poll tape on election night, saying the election was held in accordance with state law and the “facts” of our votes may be very different than the poll tape numbers indicate.

Our right (and yours) to cast a vote includes the right to have it counted and reported accurately. Common sense. We shouldn’t need a lawyer to argue that point in court since IT’S ALREADY BEEN DECIDED.

 “[e]very voter's vote is entitled to be counted once. It must be correctly counted and reported.” Gray v. Sanders, 372 U.S. 368, 380 (U.S. 1963)

Other legal precedents it would be good for you to know before you give other interviews on our elections.

"No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 US 1 - Supreme Court, 1964.

            “A decision [about who was elected] cannot be rendered without evidence, nor in disregard of settled rules of law.” Broderick v. Hunt, 77 N.H. 143 (1913)             

Did you know that:

1) until 2010, moderators conducted hand count checks of the computer with no interference from the Secretary of State? Why the change? (Practice is being used in an unknown number of computer count towns. Moderators don’t need the Secretary of State’s permission to do their job, one moderator told me). He believed, as do I, that MOST election officials want the public to have confidence in their town’s election results. Why WOULDN’T they want that? Why wouldn’t the NH Secretary of State and Attorney General also want to make sure citizens have a REASON (based on evidence) to have confidence in our election results. 

Unfortunately, it appears that one or more influential people in Jaffrey have a reason for not wanting the Jaffrey moderator to ensure an accurate count on election night. (There is a pattern that I have now become aware of involving two or three of the same individuals.) That has also been reported to (and ignored) by the attorney general’s office.

Since we now have these two different interpretations of pt 2, art. 32 (Scanlan says votes are counted in public by either people or computers) Keene officials will have to decide whether to follow Derry’s lead or Jaffrey’s. I urge them NOT to follow Jaffrey’s but to give Keene citizens a reason to trust their election results.

2) the legal duty of moderators is to make sure that the count is accurate on election night RSA 659:60 (and the right of voters is that their votes are counted and reported as intended)? US Supreme Court decisions (See Gray v. Sanders above.)

3) the law prevents the Deputy Secretary of State (or anyone else) from interfering with the moderator’s legal duty?

RSA 666:3 Official Misconduct. – Any public officer upon whom a duty relating to elections is imposed who shall knowingly fail to perform such duty or who shall knowingly perform it in such a way as to hinder the objects thereof shall be guilty of a misdemeanor if no other penalty is provided by law.

Now that the Attorney General’s office has this information, it should enforce the laws that make sure rights of voters and candidates are protected, and STOP Mr. Scanlan from his pattern (since 2010) of interfering in moderators’ performance of their legal duties.

4) the town of Jaffrey has made errors on the moderator’s worksheet for both the February and September elections (signed by the moderator) and sent to the Secretary of State with NO comment from the SoS? But he objects to the Derry moderator (and Jaffrey’s in 2010) performing their legal duties? 


5) Even though election fraud PROBABLY happened in Jaffrey in Nov. 2010, elected officials here tell me they can’t protect against it happening again because the Secretary of State (and at least one influential person in Jaffrey) doesn’t want them to.  No, that is NOT what the law says. (And I have shared that documentation with the Sentinel and would be glad to share it with you, if requested.)

I hope the Sentinel will interview Jaffrey town officials so the public is aware of what the unintended consequences were of voting to PURCHASE the AccuVote in 2003 (before the public was aware of its fraud and error friendly capabilities). We were told by our select board at the timethat it was “accurate and reliable” and not at all like those computers that had problems in Florida in 2000. 

Actually,it was the AccuVote in Volusia Couny, that mistakenly counted a negative 16,022 votes for Gore and prompted Fox News to call the race for Bush.

I request:

1) that you review this video, which shows 4 political appointees (all lawyers) on the Ballot Law Commission violating their own rule for approving voting technology in 2006 AND making it clear that moderators could also perform hand counts to make sure the count is right. Sadly, in NH, convenience for election officials has trumped the rights of voters to have our votes counted, trumped our constitution, part 2, art. 32 and legal precedent These unelected lawyers in effect illegally amended our NH Constitution that mandates votes are counted in public.

I2) that you read this report from Election Justice USA (linked at end of this posting) that shows anomalies in the 2016 Democratic Presidential Primary. I have asked members of the media, including the Sentinel, the attorney general and US attorney for NH to investigate the anomalies noted in Hillsborough County (similar to the one that showed up in a number of states in the 2012 Republican Presidential Primary, also reported to the NH AG. No response.

Perhaps there is a reasonable explanation or perhaps something needs to happen before the November election to make sure it doesn’t reoccur.

Their investigative report concludes: 

“…The argument Election Justice USA is advancing suggests that an algorithm may have been applied to electronically counted votes. The proposed algorithm would have increased Clinton’s share of the vote and decreased Sanders’ share of the vote by an increasing percentage as precinct size by total vote increased.”

Ballots in any or all of these locations should be reviewed. But, by now, it is possible that they have already been “fixed.”  The request to the AG was that the ballots to be investigated immediately be put under protective custody.

Hillsborough County:



Manchester, Ward I

Nashua, Wards I and 9 

Rockingham County:



BTW, neither Jaffrey nor Derry showed the anomaly for the primary and let’s hope the Derry moderator’s performing her legal duty can keep it that way. I have no such hope for Jaffrey.

3) work with me at the state level to develop an independent election integrity commission so that reports of problems that the Attorney General chooses not to investigate can get a hearing and recommendation for improvement. My involvement since early 2008 shows we don’t need NEW laws, but do need better ENFORCEMENT of our current ones

Please let me know if you have any questions. Hope to hear from you!

Deborah Sumner

Jaffrey, NH


PS to Sentinel. Will forward to you a copy of what I sent to the AG and the media asking for the investigation of some ballots in Hillsborough County.

copies: Patricia Little, Keene City Clerk

Thomas Mullins, Keene City legal council

Keene City Council (in care of City Manager)

Keene Sentinel

Attorney General Joseph Foster

Assistant Attorney General Brian Buonamano

US Attorney for NH Emily Gray Rice

PS If it would help you decide what to do in Keene, I would be glad to meet with you and talk. 

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