Out-of-State Voters OK With The Ballot Law Commission & Vice Versa

Last Monday, David Scott and I were before the NH Ballot Law Commission to argue a simple point about Dover’s voter checklist under an old statute that had not been used in 40 years. It was the only statute available to do what Mr. Scott wanted – to clean up Dover’s voter checklist before 2016. So he complied with the process in a very limited time frame to prepare for the hearing.

The BLC wanted to limit the discussion to one very limited issue, unless it served them otherwise, and that was: “Are the Dover city officials doing their job under the law.”

That is an odd way of describing the way election officials do their business in NH but that is the hand we were dealt.

We presented evidence that citizens only see two means of identifying voters, a name and an address. Neither one can be checked on Election Day - with same day registration. That would be very difficult with long lines of same day voters showing up.

Even if Dover election officials wanted to check the address of a voter the NH AG’s Office sent out a memorandum to all election officials two weeks before the November 4, 2014. I got a copy mailed to me from a friend.

It has some disturbing language:

 Page #2

CAUTION: Under no circumstances should an applicant be turned away at the time and place of registration. Applicants who do not have documentation with them to establish their qualifications should not be told to go get such documentation. Rather, they must be given the opportunity to prove their eligibility by swearing to the Election Day registration form.

Page #3

CAUTION: Under no circumstances should a voter be turned away at the time and place of check-in because they do not posses sufficient photo identification. If a voter is unable to present photo identification when checking in to vote, they shall not be told to go get such identification. Rather, they must be given the opportunity to sign a challenged voter affidavit. Election officials should not in any way suggest to a voter that they must have a photo identification to vote. Thus, there should be no mention of photo identification to voters in or around the polling place until they are with the ballot clerks. Likewise, there should be no signage displayed at the polling place or on its grounds, regarding photo identification requirements, other than what has been distributed by the Secretary of State.

Notice how the memorandum from the AG’s Office says specifically that the same day registrant “must be given the opportunity” to sign a voter affidavit – not, shall sign the voter affidavit?

Why doesn’t the AG’s memorandum simply say “shall sign” the affidavit?

It’s the job, under state law, for the local election officials to determine if a person is a “qualified voter” using their own knowledge, not the AG’s memorandum.

How does an election official in NH conduct business with an AG memorandum using questionable language?

The person in charge of elections is the Secretary of State.

 652:23 Chief Election Officer. – The secretary of state shall be the chief election officer for the state. The secretary of state shall provide information regarding voter registration procedures and absentee ballot procedures for all voters, including absent uniformed services voters, absent voters temporarily residing outside the United States, and federal ballot only voters domiciled outside the United States. Instructional and informational materials published by the secretary of state for clerks to provide such voters shall include information on how to communicate electronically with election officials. Source. 2010, 317:4, eff. July 18, 2010.

Back to my question to the deaf ears of the Ballot Law Commission:

How are local election officials to do their job if the AG sends out a memorandum like this?

And if you think the specific language in this memorandum is a mistake we have another reference on page #4:

RSA 659:27. The moderator shall offer the Challenged Voter affidavit to every voter to whom a challenge is upheld. Here is the current language of the statute the AG referenced above:

 659:27 Challenge of Voter; Affidavit. – 
    I. A voter offering to vote at any state election may be challenged by any other voter registered in the town or ward in which the election is held, an election official, a challenger appointed by a political committee pursuant to RSA 666:4, or a challenger appointed by the attorney general pursuant to RSA666:5. 
    II. Upon receipt of a written challenge, the moderator shall determine if the challenge to the ballot is well grounded. If the moderator determines that the challenge is well grounded, the moderator shall not receive the vote of the person so challenged until the person signs and gives to the moderator an affidavit in the following form: I, ____________________, do solemnly swear (or affirm) under penalties of voter fraud, that I am the identical person whom I represent myself to be, that I am a duly qualified voter of this town (or ward), and have a legal domicile therein. My telephone number (requested but optional) is _______________, and my email address (requested but optional) is _______________. If the moderator determines that the challenge is not well grounded, the moderator shall permit the voter to proceed to vote. 
    III. No voter or appointed challenger shall challenge a person's qualifications to be a voter at the election day voter registration table.

Source. 1979, 436:1, eff. July 1, 1979. 2009, 278:3, eff. Jan. 1, 2010. 2010, 366:4, eff. July 23, 2010. 2014, 319:7, eff. Sept. 30, 2014.

Back in 2004 the NH AG’s Office used a similar last minute memorandum to gut the ability of challengers in NH to do their job and now we have jumped to 2014 and make sure all ballots, no matter from who or wherever, are in the box and counted.

So much for election officials doing their jobs and voter affidavits are not subject to the Right to Know Law in any case.