2018 Legislative Service Request
Deborah Sumner
ANALYSIS
This bill repeals provisions exempting ballots from the provisions of RSA 91-A and provides review guidelines to protect the anonymity of ballots.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eighteen
AN ACT relative to access to ballots
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Repeal. The following are repealed and amended as follows:
I. RSA 659:95, II, relative to exempting ballots from the provisions of RSA 91-A.
RSA 659:95 Sealing and Certifying [Ballots] Challenged Absentee Ballots II [Ballots, including cast, cancelled, and uncast ballots and] successfully challenged absentee ballots still contained in their envelopes, prepared or preserved in accordance with the election laws shall be exempt from the provisions of RSA 91-A. This exemption shall apply to [any ballots or] absentee voter affidavit envelopes prepared for or used in any election conducted by the state or any political subdivision, including federal elections.
II. RSA 660:16, II, relative to exempting ballots from the provisions of RSA 91-A.
RSA 660:16 Disposal of [Ballots] Challenged Absentee Ballots II. [Ballots, including cast, cancelled, and uncast ballots and] successfully challenged absentee ballots still contained in their envelopes, prepared or preserved in accordance with the election laws shall be exempt from the provisions of RSA 91-A. This exemption shall apply to [any ballots or] absentee voter affidavit envelopes prepared for or used in any election conducted by the state or any political subdivision, including federal elections.
III. RSA 669:33, II, relative to exempting ballots from the provisions of RSA 91-A.
RSA 669:33 Preservation of [Ballots] Challenged Absentee Ballots after Recount, II [Ballots, including cast, cancelled, and uncast ballots and] successfully challenged absentee ballots still contained in their envelopes, prepared or preserved in accordance with the election laws shall be exempt from the provisions of RSA 91-A. This exemption shall apply to [any ballots or] absentee voter affidavit envelopes prepared for or used in any election conducted by the state or any political subdivision, including federal elections.
Amend Section 660: Post-Election Procedure by inserting after section 31, the following new subdivision:
RSA 660:32 Public Review of Ballots, Statement of Purpose:
The State of New Hampshire recognizes that the fundamental right to vote includes the right for voters to have their votes counted and reported accurately and to know they are. (NH CONSTITUTION, Part I, Art. 1,2, 7,8,11 Part II, Art. 5, 32,41,84,90). Therefore, the public may view cast ballots after the recount period is over to ensure accuracy of the vote count and evaluate the performance of election officials. Evidence of fraud or significant error (1% or more for any contest) shall be reported to state political parties and the moderator. The moderator shall report it to the Secretary of State, Attorney General, and, if applicable, to local law enforcement authorities.
Review to be least restrictive to public and in manner that is efficient and least cumbersome to ballot custodian or designee.
I. Custody of Ballots: Town and City Clerks retain custody of the ballots until the retention period has ended, 22 months for all federal offices, 60 days for all other. The Secretary of State remains the custodian until the retention period has ended, in the case where custody is transferred for a recount.
II. Application and Timing of Access: Review will only be allowed after the recount period for that election has ended. Application for ballot review must be made in writing to the custodian of the ballots, stating specific times of availability/unavailability, if applicable.
The ballots should be made available for inspection in as timely a manner as possible. However, responding to applications for inspection shall not take priority over the previously scheduled work activities of the Town or City clerks.
The custodian shall schedule the appointment within five business days to accommodate those wishing to review ballots and the individual (s) supervising the review. Citizens requesting the review will recruit counters if needed.
Additional appointments may be necessary to complete the review or deal with new questions that may arise.
Towns and cities may request reimbursement of additional expenses from the Secretary of State from the election fund established under RSA 5:6-d.
III. Supervision of Ballot Review and Box Contents. It is the duty of the custodian or designee to ensure the integrity of the ballots and contents of the sealed boxes.
The custodian shall remove the seal from boxes in the presence of those requesting the review and those who will supervise.
Reviewers shall witness the identification of seals removed and new seals applied after review.
Depending on the number of boxes involved and time allowed for initial review, supervisor and reviewer will agree whether one or more boxes should be opened at one time.
No person shall in any manner, nor for any reason, make any mark upon either the face or reverse side of any ballots during the counting process. All notes shall be done in pencil upon separate pieces of paper.
Ballots should not, by law, be traceable to a voter. (RSA 659:35) If there is only one absentee ballot cast in a specific location, that ballot may be excluded from the review to maintain the confidentiality of the secret ballot. If the reviewer or supervisor witnesses any identifying marks on a ballot that would allow it to be traced to a voter, the witness shall report the violation to the moderator, who shall report it to the attorney general.
Reasonable administrative regulations designed to ensure the integrity of the ballots may be established by the clerks in conjunction with the Secretary of State. Such regulations, if required, should be limited to the individual seeking access to provide identification, sign their name, keep bags, briefcases, etc. off the table where ballots are placed.
Supervisors at the local level may include members of the Board of Recount, other election officials, a designated town employee or law official.
IV. Right To Copy. The right to public access shall generally include compliance with the provisions of 91-A:4.1.
V. Denial of Access. In extraordinary circumstances, the custodian of the ballots, after consultation with the Attorney General and the Secretary of State may deny access to ballots to certain individuals and give the reasons in writing. Good cause shall be limited to previous conviction for theft or fraud, prior destruction, defacement of or tampering with public records.
Denial of access may be appealed to the Secretary of State and the court, with RSA 91:A-8 remedies available if the denial lacked “good cause.”
Accessible Voting System Ballots. Amend RSA 652:16 to read as follows:
RSA 652:16-d Accessible Voting System. –
I."Accessible voting system'' shall mean the system chosen by the state to meet the accessibility for individuals with disabilities requirements of section 301 of the Help America Vote Act of 2002, 42 U.S.C. section 15481, that has the capacity to print a paper ballot marked with the votes chosen by the voter.
II. If only one voter at a particular polling place uses this system on election day, then at least two volunteers must also vote using this system in order to protect the secrecy of the ballot.
Showing or Specially Marking Ballot. – Amend RSA 659:35 to read as follows:
I. No voter shall allow his ballot to be seen by any person with the intention of letting it be known how he is about to vote except as provided in RSA 659:20.
II. No voter shall place a distinguishing mark upon his ballot nor write in any name as the candidate of his choice with the intention of thereby placing a distinguishing mark upon his ballot.
III. No voter shall use or attempt to use any ballot not given him by the ballot clerk to accomplish any of the acts or purposes prohibited by paragraph I or II or both.
IV. Any person willfully violating any of the provisions of this section shall be guilty of a misdemeanor.
V. An election official or any other person who witnesses a mark on a ballot that allows tracing it to a voter shall report it to the moderator, who shall report it to the Attorney General for possible prosecution.
VI. The Secretary of State shall prepare educational materials for display at each polling location and given to each new voter to demonstrate violations of the law.
2 Effective Date. This act shall take effect 30 days after its passage.
Part II, Re: Verification Counts of Machine-counted Ballots
AN ACT relative to transparency and public accountability in election process in towns/wards using electronic ballot counting devices, to bring state in compliance with Pt. art. 32 NH CONST and RSA 659:63; Pt. 1, art. 8 and RSA 91-A and ensure town/city ward is protecting against possible election tampering and enforcing RSA 659:42.
ANALYSIS
This is a “vote protection”and public verification bill to bring the state into compliance with the spirit and intent of state constitution and laws consistent with public oversight and accountability requirements of NH and democratic elections.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eighteen
AN ACT relative to public oversight of elections
Be it Enacted by the Senate and House of Representatives in General Court convened:
Add to Chapter 659
Application: Between 10 and 30 days before any election, at least 10 registered voters of a city ward or town may submit the following petition to their moderator:
We, registered votes of _____, petition the Town or Ward Moderator, after the polls close, to randomly select at least one of the federal, state-wide races or constitutional questions on the ballot (or randomly select among those, which, in the moderator’s discretion, were expected to be close or most vulnerable to tampering) for ___(election date)__________, to be publicly hand-counted on the night of the election and prior to the certification of results.”
Effective date: This act shall take effect 30 days after its passage.