Revision: March 25, 2021, 2:54 p.m.
SB 89 - AS AMENDED BY THE SENATE
03/25/2021 0825s
2021 SESSION
21-0999
11/05
SENATE BILL 89
AN ACT adopting omnibus legislation relative to election procedures and registers of probate.
SPONSORS: Sen. Gray, Dist 6
COMMITTEE: Election Law and Municipal Affairs
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ANALYSIS
This bill adopts legislation relative to:
I. The city chief elections officer.
II. Prohibiting the taking of certain photographs within the guardrail.
III. Allowing the opening of the absentee ballot outer envelopes and the preprocessing of absentee ballots.
IV. Establishing a committee to study post election audit counting devices.
V. The duties of the registers of probate.
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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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
03/25/2021 0825s 21-0999
11/05
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twenty One
AN ACT adopting omnibus legislation relative to election procedures and registers of probate.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Sponsorship. This act consists of the following proposed legislation:
Part I. LSR 21-0999, relative to the city chief elections officer, sponsored by Sen. Gray, Prime/Dist. 6.
Part II. LSR 21-1002, prohibiting the taking of certain photographs within the guardrail, sponsored by Sen. Gray, Prime/Dist. 6.
Part III. LSR 21-1004, allowing the opening of absentee ballot outer envelopes and the preprocessing of absentee ballots, sponsored by Sen. Gray, Prime/Dist. 6.
Part IV. LSR 21-1051, establishing a committee to study post election audit counting devices, sponsored by Sen. Gray, Prime/Dist. 6.
Part V. LSR 21-0998, relative to the duties of the registers of probate, sponsored by Sen. Gray, Prime/Dist. 6.
2 Legislation Enacted. The general court hereby enacts the following legislation:
PART I
Relative to the City Chief Elections Officer.
1 Chief Elections Officer; City Clerk. Amend RSA 659:9-a to read as follows:
659:9-a City [Chief Elections Officer Duties] Clerk Uniform Practices. The city [chief elections officer] clerk shall establish uniform practices and procedures that conform to state and federal law for the conduct of elections at all polling places within the city. The moderators and other election officials who conduct elections at the individual polling places within the city shall comply with the uniform procedures established for the city by the city [chief elections officer] clerk. The secretary of state shall resolve any conflicting interpretations of state and federal laws arising between the [chief elections officer] city clerk and other election officials. The legislative body of any city may vote to have the duties of the ward officers relative to the selection and equipping of polling places assigned to the city [chief elections officer] clerk.
2 Repeal. RSA 652:14-a, relative to city chief elections officers, is repealed.
3 Effective Date. Part I of this act shall take effect 60 days after its passage.
PART II
Prohibiting the Taking of Certain Photographs within the Guardrail.
1 New Section; Election Procedure; Prohibited Acts; Photography. Amend RSA 659 by inserting after section 45 the following new section:
659:45-a Certain Photography Prohibited. No person shall take or cause any photograph to be taken within the guardrail that captures another voter or another voter's ballot.
2 Effective Date. Part II of this act shall take effect 60 days after its passage.
PART III
Allowing the Opening of Absentee Ballot Outer Envelopes and the Preprocessing of Absentee Ballots.
1 Processing Absentee Ballots. Amend RSA 659:49, II to read as follows:
II. Notwithstanding the provisions of paragraph I, [upon the written challenges of 10 or more voters who are present at the polls no later than 1:00 p.m., the moderator shall postpone the processing of all absentee ballots until after the polls close and prior to the counting of all ballots cast in the election.] the moderator, or his or her designee, shall post the time at which the processing of absentee ballots shall begin at the polling place and one other public location at least 24 hours before the polls open. In addition, when the polls open the moderator shall announce the time at which the processing of absentee ballots shall begin.
2 Opening Absentee Ballot Outer Envelopes. RSA 659:49-b is repealed and reenacted to read as follows:
659:49-b Opening Absentee Ballot Outer Envelopes.
I. The town and city clerks or their designee shall open outer envelope of all absentee ballots received prior to 5:00 pm on the day prior to election day. The envelope containing the ballot shall not be removed from the outer envelope at such time.
II. The clerk shall establish a policy identifying when the outer envelopes will be opened and the review of the affidavit conducted. Such policy shall include posting the time and location of the review at least 24 hours in advance. The policy shall allow the opening of the outer envelope and review of the affidavit while the voter or voter's delivery agent as defined in RSA 657:17, II is present. When election day is within 2 weeks the opening of the envelope and review of the affidavit shall occur not later than the next business day after the clerks receive the returned absentee ballot. The public shall have a right to attend and observe as the clerk opens the envelopes and reviews the affidavits.
III. The affidavit shall be reviewed to determine if the affidavit is properly executed, such as whether there is a missing signature or incorrect name.
IV. If during this review the affidavit does not appear to be properly executed, such as having a missing signature or incorrect name, the town or city clerk or their designee shall attempt to contact the voter to notify them of the errors and possible methods to correct the error using the telephone or email information, if provided, on the application. The clerk shall make a record that notice was provided to the voter on the clerk's list of absentee ballots.
3 New Section; Processing Absentee Ballots; Pre-processing of Absentee Ballots. Amend RSA 659 by inserting after section 49-b the following new section:
659:49-c Pre-processing of Absentee Ballots.
I. The moderator or the moderator’s designee may authorize the pre-processing of absentee ballots as described below provided that the pre-processing occurs in public with notice of the time and place.
II. After the corrected checklist to be used at the election has been posted, and based on the reviews conducted per RSA 659:49-b, notations may be made on the checklist to help facilitate processing of the ballot on election day. The ballot shall remain secure in the unopened affidavit envelope until final processing on election day.
III. The moderator or moderator's designee shall not initiate compliance with RSA 659:51 and RSA 659:52 until the time specified in RSA 659:49 on election day.
4 Processing Absentee Ballots; Challenges. Amend RSA 659:51, I to read as follows:
I. All absentee ballots are subject to challenge after the moderator publicly announces the name of the absentee voter, except for voters provided for in RSA 7:46, but not after the checklist is marked with the red "A.V." or the ballot is removed from the envelope. No challenge to an absentee ballot may be asserted except in conformity with the requirements of RSA 659:27-a.
5 Processing Absentee Ballots; Opening Envelope; Depositing Ballot. Amend RSA 659:52 to read as follows:
659:52 Opening Envelope; Depositing Ballot. If the absentee ballot is not challenged, the moderator shall, after announcing the name of the voter, open the envelope containing the ballot so the affidavit is not destroyed. The moderator shall then take the ballot out of the envelope without unfolding the ballot or without permitting the ballot to be examined, and he or she shall preserve the affidavit with the ballots cast at the election as provided in RSA 659:101. The moderator shall then [have a checkmark placed beside the name of the absentee voter on the checklist and write therewith] mark the checklist in such a way as to indicate the voter has voted, and write the letters "A.V." in red ink and shall then deposit the ballot in the ballot box.
6 Effective Date. Part III of this act shall take effect August 1, 2021.
PART IV
Establishing a Committee to Study Post Election Audit Counting Devices and Authorizing the Attorney General to Count Ballots as Part of an Investigation into Recount Discrepancies.
I. There is established a committee to study post election audit counting devices.
II. The members of the committee shall be as follows:
(a) Two members of the senate, appointed by the president of the senate.
(b) Three members of the house of representatives, appointed by the speaker of the house of representatives.
III. Members of the committee shall receive mileage at the legislative rate when attending to the duties of the committee.
IV. Duties. The committee shall determine what ballot counting equipment is available which would support a post election audit in New Hampshire, and shall study the feasibility, time constraints, and cost of conducting a post election audit using any vote counting equipment identified. The committee may use ballots cast in prior elections to test ballot counting equipment, provided that such use is in conjunction with the secretary of state and with the approval of the ballot law commission.
V. Chairperson; Quorum. The members of the study committee shall elect a chairperson from among the members. The first meeting of the committee shall be called by the first-named senate member. The first meeting of the committee shall be held within 45 days of the effective date of this section. Three members of the committee shall constitute a quorum.
VI. Report. The committee shall report its findings and any recommendations for proposed legislation to the president of the senate, the speaker of the house of representatives, the senate clerk, the house clerk, the governor, the secretary of state, the attorney general, and the state library on or before November 30, 2021.
2 State General Election Recounts; Conduct of Recount. Amend RSA 660:5 to read as follows:
660:5 Conduct of Recount. If directed by the secretary of state, the state police shall collect all ballots requested from the town or city clerks having custody of them and shall deliver them to the public facility designated by the secretary of state. At the time and place so appointed, the ballots cast for such office or question, including votes cast for the candidates or question on the ballot, write-in votes, and not voted (resulting from overvotes or undervotes), shall be counted by the secretary of state and such assistants as the secretary of state may require. When counting the ballots, the secretary of state or his or her assistants shall visually inspect each ballot. No mechanical, optical, or electronic device shall be used for the counting of ballots. The candidates, their counsel, and assistants shall have the right to inspect the ballots and participate in the recount under such suitable rules as the secretary of state may adopt. If the candidate requesting the recount cannot attend the recount, the candidate shall designate, in writing, to the secretary of state the name of an individual who will attend the recount and who will be authorized to make decisions on the candidate's behalf. Each candidate or his or her counsel or designee shall have the right to protest the counting of or failure to count any ballot. The secretary of state shall thereupon rule on said ballot and shall attach thereto a memorandum stating such ruling and the name of the candidate making the protest. If, at any time during the counting of the ballots, a discrepancy appears in any ballot for any reason, the secretary of state shall suspend the recount until the discrepancy is resolved, at which time the secretary of state shall continue the recount. In no event shall a discrepancy result in a second recount for the same candidate, as provided in RSA 660:3.
3 Ballot Law Commission; General Duties. Amend RSA 665:6, III to read as follows:
III. When the ballot law commission finds by a majority vote of members present and voting that a significant and unexplained discrepancy exists between the election results reported by moderators and the recount conducted pursuant to RSA 660, the results of any audit conducted by the secretary of state, or any other credible information that the commission believes, if not resolved, could undermine public confidence in the accuracy of election results, the commission shall request the attorney general to investigate.
IV. The jurisdiction vested in the ballot law commission under paragraphs I and II of this section shall be exclusive of all other remedies.
4 Attorney General; Enforcement of Election Laws. Amend RSA 7:6-c, II to read as follows:
II. Without limiting the authority granted pursuant to paragraph I, whenever the ballot law commission requests an investigation to be conducted pursuant to RSA 665, or upon his or her own motion, the attorney general may unseal and reseal ballot boxes, examine or cause to be examined for that purpose any equipment, books, records, papers, ballots, or other documentary materials, or may examine any person under oath and subject to the pains and penalties of perjury that the attorney general thinks may have knowledge of any violation of election laws.
III.(a) Beginning January 31, 2013, the attorney general shall, at least once during every 6-month period, provide a rolling report to the general court on the status of all complaints of alleged violations of the election laws received. The attorney general shall submit the report to the standing committees of the senate and house of representatives with jurisdiction over election law.
(b) The report shall include, but not be limited to the following:
(1) A summary of complaints received during the preceding 6 months, or during the period since the previous report if such period is less than 6 months, including the number of complaints categorized by type of complaint and month received.
(2) For each complaint investigated, the results of the investigation and a description of actions taken following the investigation.
(3) For each complaint not investigated, an explanation of why the complaint was not investigated.
(c) The requirements of subparagraph (b)(2) or (b)(3) may be satisfied by including with the report, for the complaint described, a closure letter, settlement agreement, cease and desist order, or complaint filed with a court, or any other official communication.
5 Enforcement of the Election Laws; Impounding Ballots. Amend RSA 666:13 to read as follows:
666:13 Impounding Ballots. If directed by the attorney general as part of his enforcement of the election laws pursuant to RSA 7:6-c, the state police which he designates shall collect all ballots requested from secretary of state or the town and city clerks who have custody of the ballots. The state police shall deliver the ballots to the public facility which is designated by the attorney general and may conduct inspections of the ballots as the investigation requires.
6 Effective Date. Part IV of this act shall take effect upon its passage.
PART V
Relative to the Duties of the Registers of Probate.
1 Establishing Compensation; Register of Probate. Amend RSA 23:7 to read as follows:
23:7 Establishing Compensation. Every county convention shall have the power to establish salaries, benefits, and other compensation paid to elected county officers including the county attorney, sheriff, register of deeds, register of probate, treasurer, and county commissioners. For the purposes of this section, except for the register of probate, "compensation'' shall include salary, longevity pay, vacation and sick pay, allowances, and all other payments made by the county to its officers, plus the fair market value of any compensation paid in kind if reportable as income for federal income tax purposes, plus all fringe benefits that may be provided including health insurance and retirement, and may also include an upper limit on the amount of mileage and out-of-pocket expenditures reimbursable to each officer. Said compensation shall be established biennially by the county convention prior to the filing date required under RSA 655:14 for the elected offices listed in this section, upon recommendation of the executive committee which shall remain in effect during their term of office. Notwithstanding any other provision of law to the contrary, in counties in which any of the officers listed in this section receive fees or mileage, or both, for services performed by them as part of their compensation, the county convention may put such officer on a salary and expenses basis. Such officer may be required to continue to collect the usual fees and mileage for the service performed and to pay over all such fees and mileage to the county treasurer for the use of the county. In such event, the amount such officer received in fees and mileage, less expenses, shall be included in determining the minimum at which his or her salary may be established unless a lesser amount is agreed upon by the incumbent officer at that time. In no case, except for the register of probate, shall the salary or other compensation of any of such officers be established at a lesser amount than that which was in effect December 31, 1972.
2 Salaries for Counties; Register of Probate. Amend RSA 23:8 to read as follows:
23:8 Salaries for Counties.
I. Every county shall establish the salary for its register of deeds at a fixed dollar value. Said salaries may not be established either in part or in total as a percentage of fees or other charges or payments collected by said register. Said salaries shall be established not less than biennially by the county convention, upon recommendation of the executive committee. In no case shall the salary of any of said registers of deeds be a lesser amount than the salary which said register was receiving on January 1, 1974.
II. Every county shall establish the salary for its register of probate at a fixed dollar value. Said salaries may be established either in part or in total as a percentage of fees or other charges or payments collected by the county treasurer or the state and consistent with RSA 548:17. Said salaries shall be established not less than biennially by the county convention, upon recommendation of the executive committee.
III. There is hereby established in the state treasury a separate fund to be known as the county registers of probate fund, which shall be used to help fund salaries, benefits and other compensation paid by counties to registers of probate. The fund shall consist of all moneys collected pursuant to RSA 490:24, III and RSA 490:27, III. Payment to the counties shall be limited to the extent funds are available in the county registers of probate fund.
IV. Moneys in the county registers of probate fund shall be nonlapsing and continually appropriated to the counties for the purposes stated in RSA 23:8, III.
V. Counties shall report to the state treasurer each year on or before the 15th of March, June, September, and December the total salary and benefits paid to registers of probate in each county since the last report. The administrative judge of the circuit court shall provide by the same dates a summary of the number of probate court filings by county since the last report. The state treasurer shall pay to the counties on or before the 30th of March, June, September, and December of each year a distribution from the county registers of probate fund an amount up to the total salary paid by each county in the previous reporting period. The distribution to the counties shall be calculated on a pro-rata allocation based on the number of probate court cases filed in each county.
3 New Paragraph; Supreme Court; Costs; Entry Fees. Amend RSA 490:24 by inserting after paragraph II the following new paragraph:
III. The sum of $20.00 shall be added to each entry fee collected in the probate division of the circuit courts and shall be deposited into the county register of probate fund established under RSA 23:8, III.
4 New Paragraph; Probate Court Fees. Amend RSA 490:27 by inserting after paragraph II the following new paragraph:
III. The sum of $20.00 shall be added to each entry fee collected in the probate division of the circuit courts and shall be deposited in the county registers of probate fund established under RSA 23:8, III.
5 Judicial Conduct Commission; Definitions; Clerk. Amend RSA 494-A:2, I to read as follows:
I. "Clerk" means a clerk of court or a deputy clerk, [a register of probate or deputy register,] a court stenographer or reporter, and any person performing the duties of a clerk[, register,] or reporter.
6 Registers of Probate; Residence. Amend RSA 548:1 to read as follows:
548:1 Residence, Etc. The register of probate shall [dwell] reside in the county in which [the probate records are required to be kept] he or she is elected. If a register shall [dwell] reside in any other county and continue so [dwelling] residing for 30 consecutive days, the office shall be deemed vacant.
7 New Sections; Registers of Probate; Authority; Deputy Registers of Probate. Amend RSA 548 by inserting after section 1 the following new sections:
548:1-a Authority. The register of probate shall have an office collocated with the county resister of deeds or such other location as determined by the county commissioners. The authority and responsibility of the register of probate shall be to assist parties with probate court filings and probate process governed under state statute.
548:1-b Deputy Registers of Probate. The county commissioners may appoint a deputy to perform the duties of the register of probate in case of sickness, temporary absence, disability, or other cause. Such appointment shall be made in writing and shall be for a length of time not exceeding the register of probate's remaining term of office. The deputy shall be qualified in the same manner as the appointing officer and perform the duties of the register of probate under statute, until such time as the appointment is no longer necessary. The appointed deputy shall be compensated from the register of probate's salary or as otherwise directed by the county delegation.
8 Registers of Probate; Preservation of Files. Amend RSA 548:5 to read as follows:
548:5 Preservation of Files. The register of probate shall be responsible for coordinating with the secretary of state and the administrative judge of the circuit court established in RSA 490-F the preservation of any closed files having the potential for historical significance. The register may recommend that these files be sent to the records center established under RSA 5. Beginning on July 1, 2022, all paper probate records older than 40 years shall be kept in the state archives unless such records are otherwise necessary for the operation of the probate division. The register of probate shall maintain a current index describing the location of any files which have been removed from the court pursuant to this section. Except for records that contain personal information as defined by RSA 359-C:19, IV, the secretary of state, division of archives and records management shall make available on its website links to all available electronically scanned New Hampshire probate records, including those created or maintained by any nongovernmental entity until such time as the state has the capability to make all such records available through state resources.
9 New Section; Record of Decedent's Real Estate. Amend RSA 548 by inserting after section 7-a the following new section:
548:7-b Record of Decedent's Real Estate. Whenever it appears from the inventory or any other instrument pertaining to real estate filed with the probate court in connection with the administration of any estate that the estate contains real estate located in another county within the state, the probate court shall notify within 15 days the register of deeds of the county in which the real estate lies of the name and date of death of the decedent. A register of deeds who receives such a notice shall record in the grantor's index the name of the decedent, his or her date of death, and the county in which the estate is being probated. The cost for filing said notice shall be assigned to the estate.
10 Probate Courts and Decedents' Estates; Publication and Notice in Newspaper RSA 550:10 is repealed and reenacted to read as follows:
550:10 Publication and Notice in Newspaper. Whenever notice is required to be published in a newspaper by any provision of this title, the probate division of the circuit court shall cause such notice to be made available to the public on the New Hampshire judicial branch website or by other electronic media not less than 2 weeks before the date for which notice is given, unless otherwise ordered by the judge.
11 County Officers; Vacancies; Registers of Probate. Amend RSA 661:9 to read as follows:
661:9 County Officers.
I. If a vacancy for a period of one year or longer occurs in the office of county sheriff, county attorney, register of deeds, register of probate, or county treasurer, the members of the county convention shall fill the vacancy for the unexpired term by a majority of the ballots cast. If a vacancy for a period of less than a year occurs in any such office, the members of the county convention shall, by majority vote of the county convention, vote to either fill the vacancy or to leave the office vacant.
II.(a) If a vacancy occurs in the office of a county commissioner, the members of the county convention, or, if the vacancy occurs in Hillsborough county, the members of the county convention representing the cities and towns in the commissioner's district, shall fill the vacancy by a majority of the ballots cast until the next biennial election of county officers. If the term filled is less than the unexpired term, then notwithstanding any provisions of RSA 653:1, VI, the commissioner district filled pursuant to this paragraph shall be added to the next biennial election ballot to be chosen by the voters of the county for a 2-year term.
(b) The provisions of subparagraph (a) shall apply only where the vacancy occurred no later than 30 days preceding the printing of the ballots for the primary election.
(c) The provisions of RSA 655:32 and RSA 655:37 relating to nominations by appropriate party committees for vacancies in an office on a primary or general election ballot, respectively, shall apply to vacancies to be filled under this paragraph.
III. If any person holding a county office enumerated in paragraph I or II becomes temporarily absent or incapacitated, the county convention may, upon application of the county attorney or county commissioners, declare a temporary absence and fill the same for a limited period of time expressed in the appointment.
IV. Any officer of a county[, including the register of probate,] may be removed by the county convention for official misconduct. Any removal under this paragraph shall be initiated by petition of a majority of the county commissioners, of the county attorney, or of a superior court judge. No officer of a county may be removed without notice of the allegations supporting the petition for removal and an opportunity to be heard by the county convention.
12 New Subparagraph; Application of Receipts; Probate. Amend RSA 6:12, I(b) by inserting after subparagraph (364) the following new subparagraph:
(365) Moneys deposited into the county registers of probate fund established in RSA 23:8, III.
13 Repeal. The following are repealed:
I. RSA 548:28, relative to the penalty for registers of probate.
II. RSA 661:9-a, relative to vacancies in office of register of probate.
14 Effective Date. Part V of this act shall take effect January 1, 2023.