Ensuring a “Clean Vote” in Your Municipality

Stephen C. Buckley

1. Electioneering

Q: What is “electioneering”?

A: The term electioneering is defined in RSA 659:43, RSA 659:44 and RSA 659:44-a as any act that is specifically designed to influence the vote of a voter on any question or office.

Q: Where is electioneering activity prohibited?

A: Under RSA 659:43, no candidate for office, or those working on behalf of a candidate, shall distribute or post any campaign material within the building where the election is being held. In addition, no person shall distribute any campaign materials or perform any electioneering activities, or any activity which affects the safety, welfare and rights of voters, within a corridor 10 feet wide and extending a distance from the entrance door of the building where the election is being held as determined by the moderator.

Q: Are public officials prohibited from engaging in electioneering activities?

A: RSA 659:44 prohibits electioneering at a polling place by any election officer. The term “election officer” is defined as “any moderator, deputy moderator, assistant moderator, town clerk, deputy town clerk, city clerk, deputy city clerk, ward clerk, selectman, supervisor of the checklist, registrar, or deputy registrar.” RSA 652:14. Although the heading of the statute would seemingly limit the prohibited electioneering by election officials to activities at a polling place, the NH Attorney General’s Office has interpreted RSA 659:44 as prohibiting any official action by an election official to endorse a candidate for office. According to the Attorney General’s Office it is a violation of RSA 659:44 for a select board to endorse a candidate for office while acting in their official capacity. However, an individual select board member could endorse a candidate in her individual capacity.

Q: Would this prohibition on electioneering by election officials also forbid advocating on issues pending before town meeting?

A: Governing bodies can and do advocate for the adoption, or defeat of specific warrant articles. Nevertheless, there have been instances where the NH Attorney General’s Office has ordered a municipality to rescind or revise a voter guide claiming the information provided exceeded the permissible boundaries of simply informing the voters on an issue and strayed into impermissible electioneering. NHMA would recommend that voter guides educate the voters on the issues presented by any proposed budget or warrant article and state the position of the governing body and budget committee through their respective recommendations. Keep in mind the recommendations of the budget committee are limited to articles containing an appropriation, but, at least according to one superior court judge, the select board can express their recommendations on any article, including non-budgetary articles. See, Jeremy Olson v. Town of Grafton, Grafton County Superior Court, Docket No. 215-2015-CV-00057, 3/9/15.

Q: Are public employees prohibited from electioneering?

A: Under RSA 659:44-a, public employees are prohibited from electioneering while performing their official duties or using government property, including, but not limited to, telephones, facsimile machines, vehicles, and computers, for electioneering.

Q: What about political advertising on government vehicles?

A: RSA 664:17-a prohibits the display of political advertising on any motor vehicle that:

Is used by a police officer authorized to make arrests or serve process; or

Which displays government license plates and is registered in the name of the state or of a political subdivision of the state.

II. Election Officials

Q: Who presides over local elections?

A: The Moderator is the chief local election official. RSA 659:9. The Moderator has the duty to ensure compliance with the election procedure statutes set forth in RSA Chapter 659.

Q: What other local officials must be in attendance at local elections?

A: The Supervisors of the Checklist, RSA 659:10 and the Town Clerk, RSA 41:16.

Q: Must the entire select board be in attendance at all elections?

A: Pt. 2, Art. 32 of the NH Constitution requires the attendance of the Select Board during voting and vote tabulation at a State General Election. For primary elections, the New Hampshire Attorney General’s Office takes the position that a quorum of the Select Board of must be present at all times. The New Hampshire Municipal Association (NHMA) does not share that view because NHMA believes that the duty to attend imposed on the Select Board stated in Pt. 2, Art. 32 of the New Hampshire Constitution only applies to the State General Election. Note also that where the presence of a select board member who is on the ballot is necessary to establish a quorum of the Select Board, the select board member may be present at the polling place, provided he or she is not within the guardrail.

Q: What election duties, if any, can be performed by a moderator or a select board member who is also on the ballot? 

A: If the moderator is on the ballot for an elective position, she is permitted to perform all of her election duties, except she shall not handle marked ballots and the counting of votes. However, if the moderator is on the ballot for the position of an election officer, she may carry out all of her election duties. If a select board member is on the ballot, he would be prohibited from handling marked ballots and he would also be prohibited from being within the guardrail during the counting of votes for an office for which he is a candidate. RSA 659:58; See also RSA 658:24.

Q: What disqualification provisions govern other election officials?

A: RSA 659:58, Disqualification of Officials, states: Any election official, other than the moderator, who is also a candidate for office shall not be allowed to remain within the guardrail during the counting of votes for an office for which he is a candidate. Such official shall disqualify himself from election duties relating to the tabulation of votes; and the moderator shall appoint an assistant who shall take the same oath as, serve in the same capacity as, and have all the powers of the election official who is disqualified until such official may properly return.

III. Polling Place Arrangements and Procedures

Q: What mandatory polling place arrangement procedures must be followed on election day?

A: The following procedures are required on election day:

The flag of the United States must be displayed inside and, weather conditions permitting, flown outside the polling place on election day.

A guardrail shall be so constructed and placed so that only such persons as are inside such rail can approach within 6 feet of the ballot box and of the voting booths. The arrangements shall be such that the voting booths can be reached only by passing within the guardrail.

The voting booths shall be in plain view of the election officers, and both they and the ballot box shall be in plain view of those outside the guardrail. Each voting booth shall have 3 sides enclosed, one side in front to open and shut by a door swinging outward or to be enclosed with a curtain. Each side of the booths shall be not less than 6 feet high. The booth shall be between 28 and 36 inches wide, and between 28 and 36 inches deep. The door or curtain shall extend to within 2 feet of the floor and shall be closed while the voter is marking his or her ballot. Each booth shall be well lighted and shall contain a shelf between 12 and 15 inches wide running the width of the booth at a convenient height for writing.

Each polling place shall have at least one voting booth which is easily accessible to elderly persons and to persons with physical disabilities. The entrance handicapped accessible booth shall have a clear opening of at least 60 inches and shall have clearances that comply with the New Hampshire building code, RSA Chapter 155-A, and with standards implementing the Americans with Disabilities Act of 1990, 28 C.F.R. Part 36.

Each polling place shall have table-top voting screens available for use in an election. Each voting screen shall consist of 3 panels, to be positioned on a table or similar surface so that when a voter is marking a ballot he or she is provided privacy. Each panel of the screen shall be at least 17 inches high and 15 inches wide. RSA 658:9.

Q: Are there mandatory requirements for accessibility to the polling place by those with disabilities and the elderly?

A: Polling places shall be easily accessible, as provided in RSA 658:9-a, to all persons including persons with disabilities and elderly persons who are otherwise qualified to vote. Where parking is provided for the polling place, there shall be at least one van-accessible parking space that is in compliance with the New Hampshire building code, RSA 155-A, and with standards implementing the Americans with Disabilities Act of 1990, 28 C.F.R. Part 36 and designated with the international symbol of accessibility. The paths of travel to and from the polling place shall comply with the accessible route requirements of the New Hampshire Building Code, RSA Chapter 155-A, and with standards implementing the Americans with Disabilities Act of 1990, 28 C.F.R. Part 36. RSA 658:9-a.

Q: What information is required to be posted at the polling place?

A: The following information is required to be posted at the polling place:

Sample ballots shall be posted outside the guardrail. For the general election, 2 sample ballots to be posted. For the state and presidential primaries, 2 sample ballots of each party are to be posted. At least one sample ballot for the general election and one sample ballot of each party for each of the primaries shall be posted no higher than 48” so as to be convenient for those voters in wheelchairs. RSA 658:26.

A voter instruction card prepared by the secretary of state shall be posted in each voting booth along with no fewer than 3 such cards posted immediately outside the guardrail. RSA 658:38.

The secretary of state shall prepare and distribute copies of the following RSA sections which shall be posted outside the guardrail at all elections: RSA 654:7-a, RSA 654:7-b, RSA 659:13, RSA 659:13-b, RSA 659:27, RSA 659:30, RSA 659:31, RSA 659:32, RSA 659:34, RSA 659:35, RSA 659:37, RSA 659:38, RSA 659:40, RSA 659:41, RSA 659:103, RSA 666:4, RSA 666:5, and RSA 666:8.

A notice prepared by the secretary of state explaining to voters the photo identification requirement in RSA 659:13, including all the permissible methods for proving identity. Such notice shall also include the penalties as described in RSA 659:34. The governing body must have this photo identification notice posted at least 14 days prior to any election. During the election the poster must be placed outside the guardrail. RSA 658:29-a.

Q: What statutory provisions protect against ballot fraud?

A: As provided in RSA 658:31, at or prior to the opening of the polls, the seal of the ballot packages delivered to the municipality by the secretary of state is publicly broken by the clerk and the ballots given to the ballot clerks to be examined and counted by the election officers in the presence of the clerk, the moderator, and at least one other legal voter. As provided in RSA 658:36, at the opening of the polls, the ballot box must be publicly opened and shown to be empty; and the election officers shall ascertain that fact by a personal examination of the box. Spoiled ballots must be marked cancelled and preserved. RSA 659:22. After the counting of the votes and announcement of the results by the moderator, the moderator must record and sign a ballots cast form prepared by the secretary of state within 48 hours of the closing of the poll. RSA 659:73 (VI).

Stephen C. Buckley is Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 800.852.3358 ext 3408 or at legalinquiries@nhmunicipal.org.