Checkers In The Chicken House [Part 1: Protest]

By Peter Bearse

Now the only recourse is a write-in campaign. Notwithstanding a strong protest and powerful appeal, the New Hampshire Ballot Law Commission has ruled that the Peter Bearse for Congress Campaign did not submit enough [at least 1500] “valid” signatures to qualify Peter for placement on the ballot. Our protest was grounded on evidence of significant flaws in the process of handling, checking, counting and otherwise certifying petitions. The evidence, drawn from careful examination of all the 405 petitions disqualified, revealed five categories of problems. Altogether, these open the process to serious question and its integrity to doubt. The five types are:

(1) ERRORS: In the determination of whether a petition is qualified to be counted as “valid” [signed by a person who is registered to vote].

(2) FAILURES TO ENDORSE: Lack of an adequate sign-off certifying that a petition is indeed qualified, or not, according to law.

(3) COUNTING MISTAKES: Significant discrepancies in the numbers of qualified and disqualified petitions counted.

(4) MISSING PETITIONS: The likelihood that some petitions may be missing in light of the above.

(5) UNABLE TO PROCESS PROBLEMS: These appeared as petitions…

Reprinted on the Ø wrong-size paper;
Misfiled; Ø
Delivered late; and Ø
That were Ø duplicates.

Under (1) ERRORS: We found more than 18% of a small sample of those disqualified have been rejected mistakenly. That very fact discredits the petition-counting process. How many more would have been found in error if we had continued to search? Since we found 13 in a sample of 70 (18.6%), one can estimate that 75 may have been disqualified in error overall (18.6% of 405).

RSA passages from the New Hampshire Election Laws are quoted on each petition form,. One is pertinent to (2) “FAILURES TO ENDORSE”:

“RSA 655:41 I….a majority of the supervisors shall certify whether or not the signer is a registered voter in said town or ward….The city clerk may certify that the signer is a registered voter, if in a city.”

Thus, in this context, “failures…” means that, for towns, some petitions were not signed by majorities of the Supervisors of the Checklist(s) and that, for cities, one could not even find one signature, that of the city clerk. According to our count, there were 125 such petitions that, though unendorsed, were rejected by Supervisors or City Clerks in 16 municipalities.

The Secretary of State’s (SoS) office counted and rejected 122 petitions that lacked not only endorsement signatures but also even a check in the box next to the disqualifying statement: “The signer of this paper is NOT a registered voter in this town or ward.” If the total number in this category, 247 (=125+122), were counted as valid rather than unjustifiably rejected, then, on this basis alone, we would have surpassed the minimum needed to qualify for the ballot by five (5). Because as the SoS concluded in its “Motion for Summary Judgment and Memorandum of Law…” presented by NH Assistant Attorney General James W. Kennedy: “Peter Bearse was 242 nominations papers short of the 1500 required to have his name placed on the ballot.”

Even after repeated efforts of counting, checking and cross-checking, we could not reconcile our numbers with those from the SoS office. We do not even agree on the total number of petitions delivered to and received by the SoS. The SoS’ office puts the total at 1696, 16 more than the campaign. Major differences appear with respect to the major components of the total(s). We counted 350 invalid petitions, or 55 less than the SoS. The major sub-totals include those considered “Unable to Process”—122 by the SoS; only 22 according to our count. 122% of the difference of 55 is due to the 122 “”rejected” by Ass’t Secretary of State Karen Ladd as not meeting the statutory requirements set forth under RSA 655:40.” 283 were not “regarded as valid” per RSA 655:44.

The “General Provisions” of RSA 655:40 provides no language sufficient to justify the Ass’t Secretary’s unilateral rejection of 122 additional petitions. On page 59 of the New Hampshire Election Laws, the statute states:

“Such papers shall contain the name and the domicile of the candidate, the office for which the candidate is nominated and the political organization or principles the candidate represents. Nomination papers shall be signed by such persons only as are registered to vote at the state general election.”

None of this content was lacking, and lack of any of those items cited above was not mentioned by Ms. Ladd as a reason for her rejections. Thus, her reference to the statute cited as providing a basis for the rejections is without merit.

Why, then, did Ms. Ladd take it upon herself to reject 122 petitions in violation of another statutory provision, RSA 655:44? For this part goes on to state, with regard to “Objections”:

“Nomination papers made in according with this chapter shall be regarded as valid…unless objection thereto is made in writing no later than the Monday following the last day for the filing of such papers.”

Yet, Ms. Ladd’s “rejection” of the 122 petitions in question occurred sometime just before the BLC hearing, after the Sept. 8th deadline, and her “objections” to counting the petitions as valid were not made in writing, nor were such objections made known to the campaign-as-plaintiff in advance of the BLC hearing or while we were together before the BLC in a “quasi-judicial” proceeding. Thus, Ms. Ladd’s objections are not only without merit; they are also without legal standing.

The only missing petitions represent small numbers from a few towns. The considerable work we have had to do to try to reconcile our counts with the SoS owes to the casual handling, careless counting, belated tabulations and inadequate accounting by SoS staff of the petitions received by the SoS.

19 of 21 rejected because they were deemed "Unable to Process” should have been accepted from the first 3 of the 4 categories below.

1. Use of wrong-sized form: [Six(6) voters signed at a meeting of the Londonderry Taxpayers Association (LTA)].

2. Misdirected: Five(5) Petitions were found to have been mistakenly filed with the wrong town. Nevertheless, five conscientious Supervisors of the Checklist were able to find that the misfiled petitions were signed by people who were registered elsewhere.

3. Lateness: Eight(8) petitions were rejected out of hand because they were delivered to Belmont after hours. The fact they were not certified, however, reflects inconsistent or non-enforcement of the law. Several other towns accepted delivery of petitions after hours of the deadline day. The petitions so delivered were checked and certified. There is also a remarkable variation in the times when city or town clerks’ offices are open, and in the days of the week when they tend to be open quite late.

4. Duplicates: Two duplicates were properly rejected.

Our careful checking, rechecking, counting and recounting brings us to a bottom line:

# Errors of Misclassification = 13 (at least; if the SoS were to investigate the whole set of those petitions rejected, they would find many more, as indicated earlier.

# Unendorsed.................. = 247
# Missing Petitions ........ = 13
# Counting Mistakes ...... = 11
# Unable to Process ....... = 19
Total = 303
The total of 303 is 61 more than needed to meet the threshold of 1500 required to qualify for ballot access.

Thus, the Commission and SoS could have found adequate justification for placing Dr. Bearse on the ballot if they were willing to take some responsibility for errors, omissions and sloppy handling of petitions rather than placing the entire burden of discovery and proof on the appellant. They were not so willing, even though responsibility for the process of administering the election laws falls to the SoS, with oversight of the BLC. The Commission is called upon to adjudicate “Filing Disputes” according to RSA 665:7 – to “determine…whether nomination papers or declarations of candidacy conform with the law.” Our analysis of the available evidence showed that many do not, for reasons that were not the responsibility of the candidate or his campaign. So, now you have the basis of our protest. Look for the crux of our appeal in a companion piece.

Released by Supporters of Peter Bearse for Congress, October 9, 2008