The City of Nashua received a citizen petition to amend its charter. The applicable statute, RSA 49-B:5, IV(c), provides that after a required public hearing, “the municipal officers shall order the proposed amendment to be placed on the ballot at the next regular municipal election or, in the case of municipalities with biennial elections, at the next regular state biennial election.”
Nashua has biennial elections, so, on November 26, 2013, the city’s board of aldermen ordered that the proposed charter amendment “be submitted to the voters by placing it on the ballot at the next regular state biennial election.” On June 26, 2014, the Nashua City Clerk sent a letter to the New Hampshire Secretary of State requesting that the proposed charter amendment be placed on the ballot at the November 2014 election.
According to the court, the deputy secretary of state read the June 26 letter but took no action on it for over two months. In late August, the city clerk contacted the secretary of state’s office to inquire about the status of the request. On September 4, “the Secretary of State’s Office finally responded to the City’s request . . . [and] indicated that it would not place the charter amendment question on the State ballot.” Instead, the office stated that the city would have to prepare a separate ballot for the charter question.
The city brought a petition for a writ of mandamus, an “extraordinary writ” that is “used to compel a public official to perform a ministerial act that the official has refused to perform, or to vacate the result of a public official’s act that was performed arbitrarily or in bad faith.” The city argued that the statute’s plain language required the secretary of state to place the charter question on the state general election ballot. The secretary of state argued that the statute only requires the amendment “to be placed on a ballot.”
The Hillsborough County Superior Court, Southern District, held that the statute means what it says. Because there is only one ballot at a state biennial election—the ballot printed by the secretary of state—“the word ‘the’ refers to that ballot.” Therefore, the secretary of state must place the question on the state ballot.
Strangely, the secretary of state asserted that the city had not actually asked his office to place the charter question on the state election ballot, and mandamus relief therefore was precluded. The court found that the city’s request was clear, but “[t]o the extent the Secretary of State’s Office was unclear about the meaning of the request, it easily could have called the City Clerk or written for clarification. Instead, the Office did nothing.”
The secretary of state also argued that it was “too late” to add the question to the state ballot because 23 ballots had already been mailed to uniformed and overseas voters, and the other ballots were being “proofed.” The court had no sympathy for this argument, having noted that the secretary of state had done nothing about the city’s request for over two months. With “nearly a month and a half before the election,” the court found that the 23 ballots could be resent, and the remaining ballots could be modified before being printed.
Finally, the secretary of state argued that the petition should be denied because there is no statutory mechanism for a recount if one is required. Apparently the concern was that if there were requests for recounts on both the charter question and one or more of the elections on the state ballot, there would be a conflict between the state and local recount procedures. The court found that this argument “puts the proverbial cart before the horse,” and that there was “no reason to believe that the City and Mr. Gardner cannot work out an amicable procedure should a recount be necessary.” The court might also have pointed out that this concern has not stopped the legislature from requiring that other local questions be placed on a state election ballot. See RSA 663:5 (question about liquor sales), 663:7 (question about sale of lottery tickets).
For these reasons, the city’s petition for a writ of mandamus was granted, and the secretary of state was ordered to place the city’s charter amendment question on the state election ballot.
The decision is of interest only to cities, because towns have annual elections and therefore would never face the need to put a charter question on the ballot at the state biennial election. The issue will arise when a city is considering a charter amendment, which may be initiated either by the governing body or by citizen petition. In the Nashua case, the amendment was initiated by a citizen petition.
Curiously, the part of the statute dealing with amendments initiated by the governing body states that the body “may order the proposed amendment to be placed on a ballot . . . at the next regular state biennial election”; so it is not clear that the result would have been the same if the amendment had been initiated by the mayor and aldermen instead of by citizen petition.
And it gets more confusing. The statute was amended this year, and the amended law applies to any charter process initiated after September 30, 2014. Under the new law, an amendment initiated by the governing body will be “placed on the ballot at either the next regular municipal election or the next state biennial election, whichever occurs earlier,” while an amendment initiated by citizen petition will be “placed on the ballot at either the next regular municipal election or at a special municipal election that occurs not less than 60 days after the date of the order.” There is no reason that the special municipal election cannot occur on the same date as the state biennial election, but it may require a separate ballot. The issue may need legislative clarification.
In any case, the lesson is that if an amendment to a city charter is being considered in an even-numbered year and the municipal officials want to have the question printed on the state election ballot, they should deliver their request to the secretary of state as early as possible, as it may take several months to receive a response, and cooperation is not guaranteed.