HB 1520 - AS INTRODUCED
2018 SESSION
18-2314
03/01
HOUSE BILL 1520
AN ACT relative to access to ballots and relative to verification counts of machine-counted ballots.
SPONSORS: Rep. Read, Rock. 17; Rep. T. Smith, Hills. 17; Rep. Vann, Hills. 24; Rep. DiLorenzo, Rock. 17; Rep. Horrigan, Straf. 6; Rep. Jack, Hills. 36; Rep. Frost, Straf. 16; Rep. McConnell, Ches. 12; Sen. Fuller Clark, Dist 21
COMMITTEE: Election Law
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ANALYSIS
This bill establishes a procedure for public access to ballots and allows citizens to request a verification count of machine-counted ballots.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
18-2314
03/01
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Eighteen
AN ACT relative to access to ballots and relative to verification counts of machine-counted ballots.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Assistance in Voting. Amend RSA 659:20 to read as follows:
659:20 Assistance in Voting.
I. Any voter who declares to the moderator under oath that said voter needs assistance marking his or her ballot shall, upon the voter's choice and request after the moderator has informed the voter of the accessible voting options that are available at the polling place, receive the assistance of one or both of the inspectors of election detailed for that purpose by the moderator or of a person of the voter's choice provided that the person is not the voter's employer or union official. Such person so assisting shall be sworn, shall mark the ballot as directed by said voter, and shall thereafter give no information regarding the same. Such person so assisting shall leave the space within the guardrail with the voter.
II. If a voter uses an accessible voting system, the moderator shall assure that at least 2 other persons also vote using the accessible voting system in order to protect the secrecy of the ballot.
2 New Paragraph; Showing or Specially Marking Ballot. Amend RSA 659:35 by inserting after paragraph VI the following new paragraph:
VII. 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.
3 New Section; Petition to Verify the Device Count. Amend RSA 659 by inserting after section 60 the following new section:
659:60-a Petition to Verify the Device Count.
I. 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 voters of _____, petition the town or ward moderator, after the polls close, to randomly select at least one of the federal or statewide races or constitutional questions on the ballot for ___ (election date), to be publicly counted by election officials on the night of the election and prior to the certification of results.”
II. The moderator shall conduct a count in accordance with a request properly submitted under paragraph I. After the polls are closed, the moderator shall randomly select one or more contested federal or statewide races or constitutional questions for inclusion in the verification count. The moderator, with his or her assistants, shall visually inspect each ballot counted by an electronic ballot counting device and count the number of votes cast for each candidate for the selected federal or statewide office or constitutional question. The moderator shall then compare the verification vote count with the vote count generated by the electronic ballot counting device and announce the counts.
4 Sealing and Certifying Ballots. Amend RSA 659:95, II to read as follows:
II. [Ballots, including cast, canceled, and uncast ballots and] Successfully challenged and rejected 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 affidavits prepared for or used in any election conducted by the state or any political subdivision, including federal elections.
5 Disposal of Ballots. Amend RSA 660:16, II to read as follows:
II. [Ballots, including cast, canceled, 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.
6 New Subdivision; Public Review of Ballots. Amend RSA 660 by inserting after section 31 the following new subdivision:
Public Review of Ballots
660:32 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, as provided in Part I, Articles 1, 2, 7, 8, and 11 and Part II, Articles 5, 32, 41, and 84 of the state constitution. 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. Review of ballots shall be in a manner that is least restrictive to the public and that is efficient and least cumbersome to the ballot custodian or designee.
660:33 Custody of Ballot. Town and city clerks shall retain custody of the ballots until the retention period has ended, 22 months for all federal offices, 60 days for all other offices. In the case where custody is transferred for a recount the secretary of state shall remain the custodian until the retention period has ended.
660:34 Application and Timing of Access.
I. Review of ballots shall only be allowed after the recount period for that election has ended. Application for ballot review shall be made in writing to the custodian of the ballots, stating specific times of availability or unavailability, if applicable.
II. The ballots shall be made available for inspection in a timely manner. However, responding to applications for inspection shall not take priority over the previously scheduled work activities of the town or city clerks.
III. The custodian shall schedule the appointment within 5 business days to accommodate those wishing to review ballots and the individual supervising the review. Citizens requesting the review may recruit counters if needed.
IV. Additional appointments may be necessary to complete the review or answer new questions that may arise.
V. Towns and cities may request reimbursement of additional expenses from the secretary of state from the election fund established under RSA 5:6-d.
660:35 Supervision of Ballot Review and Box Contents.
I. It is the duty of the custodian or designee to ensure the integrity of the ballots and contents of the sealed boxes.
II. The custodian shall remove the seal from boxes in the presence of those requesting the review and those who will supervise.
III. Reviewers shall witness the identification of seals removed and new seals applied after review.
IV. Depending on the number of boxes involved and time allowed for initial review, the supervisor and reviewer may agree whether one or more boxes shall be opened at one time.
V. 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.
VI. Ballots shall not be traceable to a voter. If there is only one absentee ballot cast in a 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.
VII. 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, shall be limited to requiring the individual seeking access to provide identification and sign his or her name, and the keeping of bags, briefcases, or other items off the table where ballots are placed.
VIII. Supervisors at the local level may include members of the board of recount, other election officials, a designated town employee, or a law enforcement official.
660:36 Right To Copy. The right to public access shall include compliance with the provisions of RSA 91-A:4, I.
660:37 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 for good cause and give the reasons in writing. Good cause shall be limited to previous conviction for theft or fraud, or prior destruction of, defacement of, or tampering with public records. Denial of access may be appealed to the superior court, with RSA 91:A-8 remedies available if the denial was not based on good cause.
660:38 Fraud or Error. The custodian of the ballots shall request that any person reviewing ballots under this subdivision report to the state political parties and to the moderator any evidence of fraud or error in any vote count of one percent or more. The moderator shall forward any such report to the secretary of state, the attorney general, and, if applicable, local law enforcement authorities.
7 Preservation of Challenged Absentee Ballots. Amend RSA 669:33, II to read as follows:
II. [Ballots, including cast, canceled, 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.
8 Effective Date. This act shall take effect 60 days after its passage.
18-2314
Revised 1/31/18
HB 1520-FN- FISCAL NOTE
AS INTRODUCED
AN ACT relative to access to ballots and relative to verification counts of machine-counted ballots.
FISCAL IMPACT: [ X ] State [ ] County [ X ] Local [ ] None
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| Estimated Increase / (Decrease) | |||
STATE: | FY 2019 | FY 2020 | FY 2021 | FY 2022 |
Appropriation | $0 | $0 | $0 | $0 |
Revenue | $0 | $0 | $0 | $0 |
Expenditures | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
Funding Source: | [ X ] General [ ] Education [ ] Highway [ X ] Other - RSA 5:6-d Election Fund | |||
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LOCAL: |
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Revenue | Indeterminable | Indeterminable | Indeterminable | Indeterminable |
Expenditures | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase | Indeterminable Increase |
METHODOLOGY:
The Department of State indicates the bill allows 10 voters to petition a moderator to recount federal or statewide races or constitutional questions on the ballot. Such recounts will place additional indeterminable costs on municipalities. The bill makes ballots subject to RSA 91-A (Right-to-Know) requests, creating additional burdens on the town clerk to comply with such requests. The bill contains a provision to permit municipalities to request reimbursement from the Election Fund (RSA 5:6-d). This fund primarily consists of federal funds dedicated to the implementation of the Help America Vote Act (HAVA). The Department states the use of funds for the bill's stated purpose is likely not a permitted use of HAVA. The Department would need to conduct extensive training on uniform procedures in the municipalities for them to conduct local recounts of certain races on the state ballot. Protocols would need to be developed regarding the appropriate handling and procedural issues for making ballots available pursuant to RSA 91-A. The total cost of funding the bill's requirements is indeterminable but could be substantial.
The Department of Justice (DOJ) indicates the bill will require any election moderator to report to the DOJ for possible prosecution any mark on a ballot that would allow tracing it to a voter. It is already a violation for a voter to place a distinguishing mark on his or her ballot. The Department does not anticipate this provision will result in any significant increase in workload, and any fiscal impact would be nominal. Denial of access to an individual by the custodian of ballots, after consultation with the Attorney General and Secretary of State, could result in appeals to the Superior Court. Any resulting increases in requests from the Secretary of State to the DOJ for legal advice pertaining to such denials could be handled within the current budget. The DOJ indicates reports of fraud or error in vote count of one percent or more would require review. The DOJ cannot estimate how many such reports it might receive or the required scope of review, thus the fiscal impact of this provision is indeterminable.
The Judicial Branch states proposed RSA 660:37 provides for appeals of denials of access to ballots to certain individuals. Such appeals would be to the Superior Court with Right-to-Know remedies. Such cases are classified as routine equity cases, which cost the Judicial Branch an average of $250.21 in FY 2019 and $254.07 in FY 2020.
The New Hampshire Municipal Association states local election officials would need to supervise any member of the public who requests a review of cast election ballots after a state or municipal election. Multiple sessions may be necessary and this may result in a significant increase in municipal expenditures for compensation of local election officials. The amount of such increase will depend on the number of requests and other factors, and is therefore indeterminable. The bill permits municipalities to request reimbursement from the Secretary of State's Office via the election fund established in RSA 5:6-d, but reimbursement is not mandated. The Association indicates it is unable to determine whether this would be a proper use of that fund. Any reimbursement from the Secretary of State will increase revenue to the municipalities, however this is not determinable.
AGENCIES CONTACTED:
Departments of State and Justice, Judicial Branch, and New Hampshire Municipal Association
| Date | Body | Type |
|---|---|---|
| Jan. 23, 2018 | House | Hearing |
| Feb. 13, 2018 | House | Exec Session |
| House | Floor Vote | |
| March 6, 2018 | House | Floor Vote |
March 6, 2018: Inexpedient to Legislate: MA VV 03/06/2018 HJ 6 P. 31
: Committee Report: Inexpedient to Legislate (Vote 20-0; CC)
March 6, 2018: Committee Report: Inexpedient to Legislate for 03/06/2018 (Vote 20-0; CC) HC 9 P. 16
Feb. 13, 2018: Executive Session: 02/13/2018 11:00 AM LOB 308
Jan. 23, 2018: Public Hearing: 01/23/2018 10:00 AM LOB 308
Jan. 3, 2018: Introduced 01/03/2018 and referred to Election Law HJ 1 P. 13