Exercising a Public Trust: Voting

By Kimberly A. Hallquist, Esq

“Your every voter, as surely as your Chief Magistrate, under the same high sanction, though in a different sphere, exercises a public trust." So observed Grover Cleveland, the 22nd President of the United States, in his first inaugural address in 1885. Here in New Hampshire, citizens take elections and voting very seriously. For nearly 90 years, New Hampshire voters have participated in the first-in-the-nation Presidential primary—a tradition that is fiercely guarded. All elections, whether the nationally covered Presidential primary or a local election to elect local officials, are conducted by local officials. It is thus the duty of local officials to ensure that the public trust is not eroded. This is accomplished when every eligible voter is allowed to vote, free of obstacles and intimidation, and when each vote cast is counted. This is an exacting process, spelled out in various state laws, and, in some cases, locally adopted bylaws. Following is a brief overview of what goes into conducting elections that best serve the public trust.

Q. What goes into pre-election planning?
Many activities, by various local officials, must occur prior to Election Day. The selectmen must make sure there is a suitable place to hold the election. The supervisors of the checklist are responsible for maintaining the checklist and holding sittings to allow citizens to be added to the checklist. The town clerk is responsible for preparing and safeguarding the ballots for local elections or receiving ballots from the Secretary of State for state elections. The clerk is also responsible for processing requests for, and receiving completed, absentee ballots. The moderator must plan for adequate polling staff available for Election Day. RSA Chapter 658. Town elections are conducted in the same manner as state elections pursuant to RSA 669:25, so the rules for election procedures for state elections must be followed for town elections as well.

Q. Whose responsibility is it to inform the public when and where an election will be held?
Warning of the time and date for a general election in towns and wards and town meeting in towns is the responsibility of the selectmen. The warrant must state when the polls will open and close, officers to be elected, questions to be voted on by ballot, and the polling location. RSA 658:1, RSA 669:2. The warrant must be posted at least 14 days prior to any election at all polling places and at the office of the town or city clerk or at the town hall.

Q. How are polling hours determined?
For state elections, the polls in both towns and cities shall be open not later than 11:00 a.m. and cannot close earlier than 7:00 p.m. Many communities have voted to open polls for state elections at 8:00 a.m. and earlier. RSA 659:4, RSA 659:4-a. Polling hours for town meeting or elections are set by the selectmen, or by a vote of the town. RSA 669:25.

Q. Do the selectmen also choose the place for the election?
Yes. The selectmen must provide a suitable place for the election, which means it should be large enough to accommodate voters as well as a public area where people can watch the conduct of the election. It must be well-lit and heated, have a ballot box, voting booths with shelves equipped with soft black lead pencils to mark ballots, guardrails and a United States flag. If your town uses voting machines, the law now requires that pens with machine-readable ink be provided in all polling places. The place chosen by the selectmen must be accessible to elderly voters and voters with disabilities. RSA 658:9, I; RSA 658:9-a.

Q. Can the selectmen decide to have additional polling places for the convenience of voters?
No, not on their own—it takes a vote of town meeting to provide additional polling places and to establish the districts served by them. RSA 658:10; RSA 658:18.

Q. Which local officials serve as election officers?
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. The moderator may also appoint such other election officials as he or she may deem necessary. RSA 658:7. Additionally, the New Hampshire Constitution, Part 2, Article 32, provides that “[t]he meetings for the choice of governor, council and senators, shall be warned by warrant from the selectmen, and governed by a moderator, who shall, in the presence of the selectmen (whose duty it shall be to attend) in open meeting, receive the votes of all the inhabitants of such towns…."

Q. Who is in charge on Election Day?
While all election officers serve an important role in ensuring that Election Day goes off without a hitch, it is the moderator who serves as the chief election officer in charge of the polls. The moderator must make certain that all election officers understand their roles on Election Day. RSA 659:9.

Q. If an election officer is on the ballot, shouldn’t he or she be disqualified from serving as an election official at that election?
Some are disqualified. The statute regarding disqualification was amended in the 2008 legislative session by Chapter 66, effective September 1, 2008. Now, when the names of moderators, clerks, selectmen, inspectors of election and supervisors of the checklist appear on the ballot for an office other than election official, they are allowed to work in that election, but shall be disqualified from the handling of marked ballots and counting of votes. For any other person whose name appears on a ballot for an elective position, other than a position of an election official, he or she shall be disqualified from performing duties as an election official in that election. RSA 658:24.

Q. Can a municipality regulate the distribution of campaign materials or electioneering?
Yes, to some extent. Under RSA 31:41-c and 47:17, XIV-a, towns and cities have the power to make ordinances regulating both the distribution of campaign materials and electioneering that “affects the safety, welfare and rights of voters at any election." However, municipalities cannot regulate: (1) the display of campaign materials attached to any legally parked motor vehicle; or (2) activities conducted wholly on private property that do not interfere with voter access or exiting of the polling place. In towns, ordinances regulating such election activities must be provided to the town clerk immediately after adoption so that they may be available to candidates filing for office. The ordinances must also be posted at each polling place at least 72 hours in advance of any town election.

Q. What about people who put political signs on their vehicles and park at the polling area all day?
As discussed above, the municipality cannot regulate the display of political signs on any legally parked motor vehicle. However, if parking at the polling site is an issue, the selectmen, pursuant to their authority to regulate town property, may adopt a temporary parking regulation for the polling place. Parking spaces may be reserved for limited time parking, allowing voters to park, vote and then leave. Accommodation for longer term parking should be made for those who must remain at the polls all day.

Q. Without an ordinance, what authority does the moderator have to control electioneering at the polling place?
The moderator is responsible for ensuring that illegal electioneering does not occur at the polling place. RSA 659:9. Illegal electioneering includes distributing or posting campaign materials within the building where the election is being held as well as the areas leading to the polling place. RSA 659:43, I, II. The moderator is responsible for the areas leading from the building entrance to the room where the voting occurs, and he or she must set up a 10-foot wide no-electioneering zone starting at the entrance door(s) of the polling place and extending into the driveway/parking area as he or she deems appropriate. To ensure that voting booths do not become cluttered with campaign material or other items left by voters, the moderator designates an election official to periodically check the voting booths and remove any materials left there. RSA 659:43. Other prohibited electioneering activities include an election officer electioneering while in the performance of his or her official duties and a public employee engaged in electioneering activities while in the performance of his or her official duties.http://gencourt.state.nh.us/rsa/html/LXIII/659/659-44.htm" target="blank">RSA 659:44; RSA 659:44-a.

The New Hampshire Constitution, Part 2, Article 32, and RSA 659:9 and RSA 659:43 make the moderator responsible for ensuring that voting is conducted in accordance with the law and grants the moderator substantial authority and discretion for that purpose. A voter must be able to come into a polling place and cast his or her vote, without being accosted or interfered with by those who may be participating in electioneering or other activities at the voting place such as bake sales, public information displays on issues not before the voters at the election, public displays by civic groups and so on.

Q. Who counts ballots?
The moderator and his or her election assistants are responsible for overseeing the counting of ballots and determining the results of the election. RSA 659:60; RSA 659:61. Counting of ballots must be done in public view, but within the guardrails at the polling place. RSA 659:63. If a ballot is marked in a way that makes it difficult to readily determine how it shall be counted, a majority of election officials must determine the intent of the voter. RSA 659:64. Upon completion of the ballot counting, the moderator must declare the results and file a certification of election with the town clerk indicating the number of votes received by each candidate. RSA 659:70; RSA 659:71.

Q. Who enforces the election laws?
The Attorney General, as the chief law enforcement officer for the state, enforces the election laws. In addition to the moderator’s enforcement powers on Election Day, any candidate or voter may make a written complaint to the Attorney General of any election violation. The attorney general may in her discretion, conduct investigations to determine whether any violation of the election laws has occurred and may prosecute anyone responsible for such a violation. In conducting an investigation, the attorney general may enlist the aid of the county attorneys, the state police and other public officers. RSA 7:6-c.

Q. Where can I get more information on voting and election issues?
In addition to seeking the advice of staff attorneys at LGC or local legal counsel, the following resources may also prove to be helpful:

The New Hampshire Election Procedure Manual is updated and republished every two years. Copies can be obtained online at www.sos.nh.gov.
The Attorney General Web site, www.doj.nh.gov.
For information on making polling places accessible, contact the Governor’s Commission on Disability by phone at 603.271.2773 or online at www.nh.gov/disability.