Gordon J. MacDonald, Attorney General
Dear Mr. MacDonald,
We recently learned that even though NH has chosen not to comply with federal standards for voting equipment, it is still supposed to be following minimum standards specified in Section 301(a) of HAVA, which includes 3) notify the voter when more selections are made than permitted (over votes).
See links to Press Release and 2015 standards below.
NH is the only state we know of that does NOT program its computers to return over voted ballots to election day voters for possible correction.
Philip Stark, statistics professor and associate dean of mathematical and physical sciences at UC Berkeley, has testified in court that “There are documented instances where scanners have high rates of erroneously inferring that valid votes are over votes.”
Over vote rates for Jaffrey appear to be extremely high, but since the 2010 law requiring reporting over votes to Concord was changed, there is no way to know if this is typical of the rest of the state.
In Nov. 2012, 71 of 2,843 Jaffrey ballots tabulated by the AccuVote were recorded as over votes, 2.5% of the total. Nov. 2014, 21 of 1,945 ballots, 1.1%. Nov. 2016, 49 of 2,867 ballots, 1.7%.
It appears likely that hundreds, even thousands of voters are being disenfranchised every election, in violation of RSA 659:64 Determining Intention of Voter and HAVA. That can make a difference in close races such as we had in November (information previously shared with your office).
1. In consultation with Anthony Stevens, Assistant Secretary of State, issue a directive to LHS Associates to begin programming all AccuVotes to return over voted ballots to election day voters for possible correction, Make sure local officials know how to preserve voter privacy when that occurs and how to use the over ride function if needed for absentee ballots or voters who don’t have time to vote a new ballot. (See RSA 656:42)
2. Require reporting of over votes to Concord and that the Secretary of State prepare proper reporting forms for each election that include a candidate for federal office. (Amend RSA 659:73).
3. If you determine legislative action is needed for either/both of the above, to work with a legislator to draft the legislation and speak for it in committee.
4. If you decide to take no action on this request, please let us know ASAP and no later than Sept. 18.
Thank you.
(See also legislative history, with Deputy SoS claiming NH was in compliance. Deborah Sumner's testimony that included three known possibilities for fraud with over voted ballots using NH's AccuVote optical scan system)
March 7, 2018
Scott Murray, US Attorney for NH
United States Attorney’s Office
53 Pleasant St., 4th Floor
Concord, NH 03301
Dear Mr. Murray,
I request your review of the following information and your opinion on these two questions.
1. Does current NH practice of NOT programming AccuVote optical scan computers to notify voters of over voted ballots (and giving them the chance to correct them) fulfill the legal requirement of HAVA, Section 301 (a)? AccuVotes potentially “count” 87.5% of all NH votes. (Note: as of Sept. 2020, more than 89%)
I agree with the Secretary of State’s opinion that printing directions on ballots for those counted by people does fulfill the requirement for THOSE ballots, but not in communities like mine that use the AccuVote. My understanding is that NH has received no official waiver saying its current interpretation is okay.
2. Can other states choose to interpret the law this way and not program their computers to notify voters?
Exhibit 1.Sept. 9, 2017 Request for NH Attorney General to address this question received no response.
Exhibit 3 My testimony on HB 1486
Exhibit 4 Secretary of State’s opinion that NH is in compliance with Section 301 (a)
Please feel free to contact me if you have any questions. I look forward to your response to what is a puzzling interpretation of Section 301 (a). It appears clear to me and every state I know of that optical scan systems (such as we use in NH) must notify the voter and give him/her a chance to correct the ballot. Thank you.
Ps I do know federal law does not require notification of completely blank ballots but many other states choose to do so and it appears to be a “best practice” to enfranchise as many voters as possible.
2. Complaint filed with USDOJ Feb. 20, 2019:
2) I have been involved with three attempts to bring NH into compliance with Section 301(a) of HAVA, which includes 3) notify the voter when more selections are made than permitted (over votes)…and give voters the chance to correct the ballot or get a replacement.
That includes requests of the NH Attorney General on Sept. 9, 2017 and October 19, 2018 and an attempt to fix it legislatively in 2018, with bill HB 1486.
I asked my first questions about this in 2011 of state officials and was ignored.
My testimony on HB 1486 included: “In Jaffrey, the AccuVote reported 48 over votes and 1 completely blank ballot of 2,867 cast in November 2016 (1.7%). IF that was typical state wide, with the potential of 87.5% of all NH ballots now `counted’ by the AccuVote with no public oversight, it is possible that more than 11,000 voters ‘lost’ their votes for one or more contests in November.”
I included these known causes of computer-read over voted ballots:
1. Voter confusion (if a voter changes his/her mind, makes an error or crosses out one vote and fills in another oval, voter intent could be determined by visual inspection, but not by the computer)
2. Creases on absentee ballots counted as “votes”
3. Voter intent not recognized by computer
4. Stray marks/dust counted as “votes”
5. Computer or programming error
6. Specks on the paper due to the printing process
7. Three KNOWN possibilities for fraud (gave specific examples)
The secretary of state testified AGAINST HB 1486, saying he believed NH was in compliance with current law and some people WANT to vote for multiple candidates (which of course, they could still do, but would know their votes wouldn’t count for any of them).
This brings up a FOURTH possibility for election fraud with over voted ballots using the current AccuVote technology.
In the July 20, 2007 “Source Code Review of the Diebold Voting System” contracted by the California Secretary of State, Conclusion section, p. 71, says voters “might mark malicious patterns on the ballot” that “could be used to trigger a dormant `Trojan horse’ to cause a compromised machine to begin cheating.”
So, there are many good reasons to return over voted ballots to election-day voters for possible correction. I see no GOOD reason not to do so.
Please direct the NH SoS and AG to comply with Section 301(a) of HAVA law ASAP to prevent the possibility of significant voter disenfranchisement (and possibly wrongly certified election results) in our 2020 elections.
Thank you.
D. June 5, 2020 Request of Gov. Chris Sununu "to encourage the Attorney General to enforce [Section 301(a) of federal HAVA law re: over-voted ballots] and fix this problem before the NH Presidential Primary."
Follow up of Sept. 20, 2019:
I’m waiting for a written response to my June 5 request for you to “encourage the Attorney General to enforce [Section 301 (a) of federal HAVA law re: over-voted ballots] and fix this problem before the NH Presidential Primary.”
The two specific questions I am asking you to answer:
1. Will NH voluntarily comply with a reasonable federal law that protects the constitutional rights of voters and candidates?
2. If yes, will that compliance begin with the Presidential Primary?
Background: The Secretary of State and Attorney General drafted other HAVA-required laws. They testified in support to legislative committees; the Legislature passed them. Although a draft 2004-05 HAVA plan showed the state intended to comply, evidently the SoS and AG didn’t bring that particular piece of the HAVA requirement forward.
My research shows all other New England states are in compliance (can share the wording of their laws). I am not aware that ANY other state except NH has chosen not to comply.
The SoS office is now aware of three possibilities of election fraud involving over-voted ballots with the AccuVote system NH uses to “count” 87.5% of all NH votes with no public oversight. The AG’s office is aware of one; yet neither office has initiated legislation to comply with Section 301 (a) to protect voting rights and the integrity of our elections.
I ask you, exercising your duty under NH CONST. pt. 2, art. 41, to encourage this oversight to be corrected BEFORE the NH Primary election. Perhaps it would warrant emergency legislation to protect against the illegal disenfranchisement of possibly thousands of NH voters and the fraud potential over-voted ballots present with the current system.
I look forward to your speedy response to the two questions so I can let others, including those copied below, know of your decision.
Please have someone from your office contact me if you have any questions.
Governor's response of Oct. 18, 2019:
"It is my understanding that you've been in contact with the NH Attorney General's office and they have responded to you on all these issues. We have received and reviewed these responses and feel that they confirm New Hampshire's compliance with federal law, and they have adequately addressed all the concerns you raised."
E. Attempt to resolve this informally with SoS and AG, beginning Oct. 21, 2019: Oct. 21, 2019 communication with Ballot Law Commission chairman, SoS and AG. No response from SoS or AG. Nov. 19, 2019 AG said NH was in compliance with the HAVA requirement, so no appeal to Ballot Law Commission was allowable. Copy sent to SoS Bill Gardner.
I have just received the governor’s answer, that the AG’s responses “confirm New Hampshire’s compliance with federal law, and that they have adequately addressed the concerns you raised.”
Now there is a basis to appeal the AG’s opinion to the BLC.
But, if Mr. Scanlan is willing to work with me on this, we can resolve this issue in time to protect the constitutional rights of voters and candidates for the NH Presidential Primary.
Mr. Scanlan, we know you and Mr. Fitch have interpreted HAVA law differently than all other New England states and every other state I know of, including Michigan, Wisconsin, Florida, Montana,Texas, Georgia and Alabama.
YOUR interpretation has left NH elections open to at least four possibilities for fraud involving over votes in the AccuVote system NH uses. I have estimated that if the 1.7% over vote rate for Jaffrey in Nov. 2016 was typical statewide, more than 11,000 voters could have lost their votes for one or more contest. That could have made a difference in several high stakes races that did not have recounts and because you and the AG forbid moderators from doing any verification checks of computer accuracy locally beginning with that election.
Spot checks of over vote rates in some jurisidictions for the 2018 elections show one hand count town being the lowest (possibly 0) and absentee ballots “counted” by one computer in a larger jurisdiction the highest (about 5%).
Absentee ballots are particularly vulnerable to one of the fraud possibilities because demographics can be targeted.
BOTH NH and Maine HAVA plans said the states intended to comply. Maine did, (see below) but evidently you and Mr. Fitch didn’t draft and support the legislation needed to codify the requirement as you did with other HAVA-required laws. LHS Associates has said publicly that NH does not allow them to program AccuVotes to notify voters of over votes, as they do with Accuvotes in VT, MA and CT.
I agree with your interpretation re: hand count jurisdictions and absentee ballots, but disagree on your interpretation of this section. Can you name ONE other state that has interpreted the plain meaning of the following law the way you and Mr. Fitch have?
SEC. 301. VOTING SYSTEMS STANDARDS.
(a) REQUIREMENTS.--Each voting system used in an election for Federal office shall meet the following requirements:
(1) IN GENERAL.--
(A) Except as provided in subparagraph (B), the voting system (including any lever voting system, optical scanning voting system, or direct recording electronic system) shall--
(i) permit the voter to verify (in a private and independent manner) the votes selected by the voter on the ballot before the ballot is cast and counted;
(ii) provide the voter with the opportunity (in a private and independent manner) to change the ballot or correct any error before the ballot is cast and counted (including the opportunity to correct the error through the issuance of a replacement ballot if the voter was otherwise unable to change the ballot or correct any error); and
(iii) if the voter selects votes for more than one candidate for a single office--
(I) notify the voter that the voter has selected more than one candidate for a single office on the ballot;
(II) notify the voter before the ballot is cast and counted of the effect of casting multiple votes for the office; and
(III) provide the voter with the opportunity to correct the ballot before the ballot is cast and counted.
Will you work with me, Mr. Scanlan? We could save people time and effort if you chose to do so. Please let me know by the end of the week.
Maine draft plan for HAVA and codification of over vote requirement into law:
“All optical scan voting systems in use in Maine are capable of being programmed to notify voters of overvotes (multiple votes cast for a candidate or question) and return those ballots to the voter for an opportunity to correct the error using a replacement ballot. The Secretary of State (in conjunction with municipal election officials and the vendors charged with programming or maintaining these systems) will implement this programming change by January 1, 2006.”
§843. Requirements for devices
2. Voting limited. It must permit each voter to vote at any election for all persons and offices for whom and for which the voter is entitled to vote; to vote for as many persons for an office as the voter is entitled to vote for; to vote for or against any question upon which the voter is entitled to vote; and the electronic tabulating equipment must reject choices recorded on the voter's ballot, if the number of choices exceeds the number for which the voter is entitled to vote for the office or on the measure.
F. July 30, 2020 on the table offer for restorative justice resolution: As of Sept. 8, there has been no response. See two attachments that shows NH said it would comply with the requirement, received federal money that required that compliance, but has not been in compliance since Jan. 1, 2006. Includes former Deputy AG Bud Fitch's opinion of Jan. 2018 and Assistant AG Nicholas Chong Yen's opinion of November 2019. Shows evidence over votes most likely disenfranchise democratic voters known since the 2000 Presidential election.
