The "rule of law" in our NH Election System
dsumneri...@gmail.com
Posted by Deborah Sumner, Nov. 29, 2023
SHORT version is:
The “rule of law” in NH seems to mean laws and our constitution are merely “suggestions” for a certain class of people who are free to ignore them. That didn’t start with Mr. Formella, but it could END with him.
Sent to members of House and Senate election law committees and legislative leaders on Nov. 28. They all received my Nov.12 request of Mr. Formella to correct the record re: my Feb.7, 2022 request.
On Feb. 28, I asked the Public Integrity Unit of the AG's office to investigate the AG's violations mentioned below, enforce the laws and to require Mr. Formella to correct the record. They only received the Nov. 12, 2022 communication.
PS links may not work. Copy and paste should.
Nov. 28, 2023
Dear All,
I have received no response.
It appears that Mr. Formella is choosing not to comply with the following RSAs: 7:6-C, 641:3, 641:7, 666:3, 666:8 and 92:2 and I will ask the Public Integrity Unit to investigate and enforce these laws.
Obviously, the Attorney General is not likely to investigate himself or enforce laws that he chooses to ignore. So, this problem will remain with the legislature unless and until you choose to do something about it.
Timeline:
2003- federal HAVA law required states to develop an administrative complaint procedure. NH’s State Plan estimated it would cost $280,000 to develop that procedure, linked here:
https://www.doj.nh.gov/election-law/complaint-procedure.htm
2010- Financial Resources Mortgage scandal breaks, prompting head of NH Securities Division Mark Connolly’s book Cover up, published in 2011.
Nov. 2010, I report to the Attorney General the Secretary of State’s failure to supply proper reporting forms (RSA 659:73) to local officials. He took no action.
2012 Codification of part of the 2003 complaint procedure in RSA 7:6-, c, II.
https://www.gencourt.state.nh.us/rsa/html/I/7/7-6-c.htm
Nov. 2021 (see attached) Reported violation re: the Secretary of State which was “closed,“ but not included in the 6-month report covering that time period. The AG chose to ignore the laws that require the SoS to send the correct reporting forms to local officials for each election (RSA 659:72-through 659: 75). Derry also didn’t receive the correct form and it’s likely no town holding a special election in 2021 did. The AG’s failure to enforce the law increases the likelihood the SoS will violate the same laws in the future.
Nov. 2023 The problems Mark Connolly identified prior to 2010 are still problems. NONE of his suggestions for addressing them have been implemented. In recent years, the legislature approved a $10 million settlement for FRM investors, ironically administered by the attorney general!
https://www.doj.nh.gov/civil/financial-resources-mortgage.htm
Kelly Ayotte, who was the AG from 2004-2009, was elected US Senator in 2010 and is now running for Governor. Michael Delaney, who was NH AG in 2010, recently withdrew his nomination to become a federal judge.
The “rule of law” in NH seems to mean laws and our constitution are merely “suggestions” for a certain class of people who are free to ignore them. That didn’t start with Mr. Formella, but it could END with him.
Please let me know if there is anything I can do to help change that current cultural norm.
Respectfully,
Deborah Sumner
474B Great Rd.
Jaffrey, NH 03452
Nov. 12, 2023 (sent by email and regular mail)
John Formella, NH Attorney General1 Granite Place SouthConcord, NH 03301
Re: RSA 7:6-c, II, Request to Correct the Record
Dear Mr. Formella,
The status report of alleged law violations and actions taken of Jan. 1, 2022 to June 30, 2022 contains an error. I ask you to correct it and let me know you will by Nov. 27.
The Feb. 7, 2022 request for an investigation, copied below, included allegations of one probable and one possible violation of law that couldn’t be determined without an AG investigation. RSAs 659:64, 659:42.
The Feb. 9, 2022 response that this issue had been closed (from Anne Edwards and Deputy Counsel Myles Matteson) was not backed by the evidence shown in my public records request of Feb. 14, 2022. Mr. MacDonald had not responded to the Dec. 2, 2020 communication. (That also was not included in the status report for that time period). Your office should have a copy of the Feb 14 request and Feb. 23 response.
Since I had received no response to the Dec. 2020 request, I assumed this was still open and had gotten lost in Mr. MacDonald’s transition to the NH Supreme Court.
In my Dec. 22, 2021 communication (see below), I asked “If the AG’s office won’t take any action on this, please confirm that decision and give the reason why.”
I have been given no explanation of WHY the AG’s office chose to take no action on this,
The law clearly states:” (3) For each complaint not investigated, an explanation of why the complaint was not investigated.”
Legislators and the public should be able to rely on what the AG says. He serves as a model for other law enforcement professionals in the state.
IF Mr. Formella made an honest mistake, he should be willing to acknowledge it and correct the public record. That’s called being human. These suggestions are one way he could to that. He may have a better idea that would comply with the spirit and intent of RSA 7:6-c, II……and be acceptable to me.
Complaint against: The StateComplainant: Deborah SumnerDate: 12/2/2020, 2/7/2022Allegations: illegal voter disenfranchisement, reported totals not based on voter intent, possible fraud, RSAS 659:64, 659:42.Status: Ignored/no action take/ no reason given
There is now MORE evidence that Democratic voters were more likely than Republicans to have been disenfranchised on computer 1. (See chart at end),
Members of the Senate and House Election Law committees are copied on this request and I will forward it to legislative leaders. Legislators, please ask Mr. Formella to correct the record and show you expect the AG to comply with RSA 7:6-c, II in the future.
In September 19 and 25, 2022 communications with Anne Edwards, copied to four legislators and the Keene Sentinel, I had reported five previous reported violations of law, beginning in October of 2016 and including the Dec. 2, 2020 communication copied below that were not dealt with or included in the required 6-month reports. She chose not to correct the record for any of them, which I believe, at a minimum, is a violation of RSA 7:6-c, II , RSA 641:7 and RSA 666:3.
Mr. Formella and legislators: If we can’t resolve this small problem in NH, how do we get to world peace? I ask you to consider that question in your response.
Legislators: Please develop a procedure of where someone can go if the AG ignores a reported violation of law in the future or fails to enforce a law. Seems there needs to be some kind of oversight committee that includes members of the House and Senate election law and judiciary committees.
I would prefer an informal, restorative justice approach (with no lawyers involved) to resolve this kind of issue and prevent it from reoccurring. That can ONLY happen if the Legislature makes that a clear expectation. Otherwise, you are giving the current AG and future ones permission to violate laws with impunity and send a message to the public about how “the rule of law” really works in NH.
Any one can contact me if you have questions. Best time to reach me by phone is usually mornings from 9-noon.
Thank you.
Respectfully,
Deborah Sumner474B Great Rd.Jaffrey, NH 03452
Copy: Members of House and Senate Election Law Committees, Keene Sentinel
From: Deborah Sumner <dsu...@myfairpoint.net>Subject: Re: Request for Investigation, high overvoted ballot rate in Derry/absentee ballots statewideDate: February 7, 2022 at 11:35:59 AM ESTCc: electionlaw <elect...@doj.nh.gov>, Jane....@doj.nh.gov, "Edwards, Anne" <Anne.E...@doj.nh.gov>, "ChongYen, Nicholas" <Nicholas...@doj.nh.gov>, "Matteson, Myles" <Myles.B....@doj.nh.gov>, "Tracy, Richard" <Richar...@doj.nh.gov>, David Scanlan <David....@SOS.NH.GOV>, Orville Fitch <Orvill...@sos.nh.gov>, usanh....@usdoj.gov,
Dear Mr. Formella,
Since this Dec. 2, 2020 request of Mr. MacDonald remains open, I ask you to initiate the investigation of Derry November 2020 ballots to see if all legal votes were counted (as law and duty require) and to ensure that three of the four known possibilities for election fraud with overvoted ballots did not occur. (See end for specifics, A, B and D.)
"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 (U.S, 1 1964)
“The right to have one's vote counted is as open to protection by Congress as the right to put a ballot in a box." United States v. Mosley, 238 U.S. 383, 386 “[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)
As you and Mr. Gardner noted in your Jan. 7, 2022 communication to Windham officials, “The moderator has a duty to accurately count all legally submitted ballots.” p. 3
My understanding is that 1) you can ask the FBI or county attorney to help investigate 2) Derry did NOT use a folding machine (found to contribute to the high overvote rate in Windham’s Nov. 2020 election).
Three citizens notified Mr. MacDonald in Sept. 2017 about known instances of the AccuVote misreading legal votes as overvotes (including fraud possibilities). He took no action. (Request should be in your files, sent Sept 9 by regular mail, Sept. 11 by email.)
I am copying Mr. Scanlan and Mr. Fitch, who I believe will support this request and would help your office with this investigation any way they can.
Please confirm that you will initiate this investigation and finalize it before Sept. 2022 (the end of the ballot retention period). The Derry Town Clerk is current ballot custodian.
Thank you. Please don’t hesitate to contact me if you have any questions.
Respectfully,
Deborah Sumner474A Great Rd.Jaffrey, NH 03452
copies: AG attorneys, David Scanlan, Bud Fitch, US Attorney for NH,
PS As the Secretary of State knows and you should know, the pre-election testing only shows the computer is working properly when it’s tested. It can be programmed to operate differently during the election, there can be a software glitch or mechanical issue. For example, CT found the memory card battery lost power and affected the post-election hand counted audit results. Officials there pushed the vendor to design a new memory card. NH continues to use the one known to have the battery depletion problem.
Four KNOWN possibilities for fraud with overvotes using the AccuVote Optical Scan:A. An attack could bypass the pre-election ballot testing and, during an election: turn off under-and-over vote notification. It could selectively disable over vote notification or selectively provide false over vote notification for favored or disfavored candidates. VSTAAB Report, 2006, p. 16 https://www.sos.texas.gov/elections/forms/security_diebold_accubasic.pdfB. Someone with access to ballots could add a tiny spot of invisible/ultraviolet ink to the oval for the PREFERRED candidate. The voter wouldn’t notice it. If he/she voted for ANOTHER candidate, the scanner would read it as an over vote and be it would be invalidated. A vote for the PREFERRED candidate would likely be counted as valid.C. Prior to recounts, over vote marks could be added to ballots (also possible in locations not using the AccuVote).D. Voters might mark malicious patterns on the ballot that could trigger a dormant Trojan horse and cause a compromised computer to start cheating. (p. 71, Source Code Review of the Diebold Voting System)
On Dec 22, 2021, at 9:47 AM, Deborah Sumner <dsu...@myfairpoint.net> wrote: elect...@doj.nh.gov
As of this date, I have not received a status report, closure letter or any other communication re: this reported violation of law (RSA 659:64) and /requested investigation. If the AG’s office won’t take any action on this, please confirm that decision and give the reason why.
Thank youDeborah Sumner (contact info below)
Begin forwarded message:
From: Deborah Sumner <dsu...@myfairpoint.net>Subject: Request for Investigation, high overvoted ballot rate in Derry/absentee ballots statewideDate: December 3, 2020 at 9:48:17 AM ESTCc: "Edwards, Anne" <Anne.E...@doj.nh.gov>, Jane....@doj.nh.gov, "ChongYen, Nicholas" <Nicholas...@doj.nh.gov>, barbara Glassman >, Gerhard BeddingDecember 2, 2020 (sent by regular mail, emailed Dec. 3)
Gordon J. MacDonald, Attorney GeneralNH Department of Justice33 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.
Note added Nov. 11, 2023: Three links below no longer work.
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.
Copies: Derry Town Moderator, Ballot Law Commission, ACLU-NH, DOJ attorneys-Anne Edwards, Jane Young, Nicholas Chong Yen