LEGAL Q&A: It’s that Time of Year: Election Time

Natch Greyes, Municipal Services Counsel

Once again, New Hampshire is charged with wheedling down a vast slate of presidential hopefuls to a few, viable candidates. The importance of this duty weighs heavy on the heads of municipal officials. Elections are incredibly complex events. There is a dizzying array of federal and state laws which govern how elections must be run to ensure that every eligible person is able to vote. This means that it’s a good idea to refresh our collective recollections about some of the common issues which arise during these events.

Q.  Which municipal officials are in charge of elections?

 A. RSA 658:9 makes the selectmen responsible for setting up the polling place. Note, however, that that statute does not make the select board the chief election officers for the municipality. Instead, the moderator retains that role pursuant to RSA 659:9. The moderator must also make certain all election officials understand their roles and fulfill them on election day pursuant to that statute. Municipal election officials may include 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 other election officials as he or she deems necessary. RSA 658:7. Many moderators in municipalities with multiple election sites find that some appointments are often necessary.

 Q.  Must the select board be at the polling place on election day?

 A. Yes, the board’s presence is required by the New Hampshire Constitution. 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….” If a select board member is absent or unable to attend at any state election the select board member may appoint a select board member pro tem to perform her duties. RSA 658:21-a.

It is important to note that 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 should generally be followed for town elections as well. That has caused some controversy with the provision of accessible voting systems similar to the Secretary of State’s tablet computer-run “one4all” system by municipalities for municipal elections. Although legislation solving the issue is still pending as of this writing, it should be mentioned that it is likely that all municipalities must ensure that accessible voting systems are available to disabled individuals in order to be in compliance with federal regulations.

 Q. What should a municipality do if it runs out of paper ballots?

 A.  RSA 658:35 governs the creation of “unofficial” ballots which will be held as valid for the purposes of voting. That statute requires the town or city clerk create “unofficial” ballots “as far as possible, in form of the official ballots,” initial each, and make a statement under oath that the official ballots have not been received (or, more accurately, that not enough official ballots were received). Ideally, the clerk should make photocopies of an unused official ballot, and each photocopy should be signed or initialed by the clerk before being issued to a voter. This helps to prevent fraud by distinguishing the properly created unofficial ballots from fraudulently created ballots. RSA 659:24. An accurate record should be kept of the total number of unofficial ballots created and the number of those that were actually used by voters.

Q: Do municipalities have to allow people to “observe” the election from inside the polling place or can we exclude non-election officials and voters from inside the polling place?

A. Any person has a right, as safety, welfare and rights of voters permit, to observe in-person voter registration, wherever it is conducted. RSA 654:7-c. However, observers must be located at least five feet from the registration table where the exchange of nonpublic information between the applicant and the election official receiving the application may be heard or seen. When a person registers to vote on election day, the election official must announce the person’s name twice and also announce the address the person has registered as his or her domicile one time in a manner that allows any person appointed as a challenger to hear the announcement. RSA 654:7-c; RSA 666:4.

Note that the observer or challenger should be outside of the guardrail which the select board must set up pursuant to RSA 658:9. That rail prevents anyone from accessing the voting booths other than by passing within the guardrail and only those within the rail can approach within six feet of the ballot box and voting booths. RSA 558:9. The voting booths and ballot box should be within plain view of those observing from outside the rail. RSA 658:9.

Q. How should election officials handle “challenges” to a particular person’s right to vote?

A. “Challenges” to a particular person’s right to vote may be made by any other registered voter in the town or ward (in writing only), by any election official, or by any challenger appointed by a political party or by the Attorney General with the proper signed statement from the political party/Attorney General. RSA 659:27; RSA 666:4-:5. A “challenge” may be made at any time until the voter puts his or her ballot into the ballot box or voting machine.

If a voter is challenged, the moderator may not receive that person’s vote until the challenged voter signs and gives to the moderator a Challenged Voter Affidavit (prepared by the Secretary of State). The affidavit must be sworn before an election official or any other person authorized by law to administer oaths. The challenged voter may then be permitted to vote. RSA 659:30.

The clerk must keep a record of all challenges including: the name and address of the voters completing the affidavits, the affidavits, the name of the person making the challenge, the reason stated for making the challenge, and, finally, the clerk must report the challenge on the State’s ElectioNet system. RSA 659:27 – RSA 659:33. See the Secretary of State’s election manual for complete instructions regarding challenges.

Q. Who decides how campaigning at the polls will be controlled?

A. The moderator, under authority from the New Hampshire Constitution, Part 2, Article 32, as well as RSA 659:9 and RSA 659:43. According to the Secretary of State’s manual, “[t]he moderator is responsible for establishing a ten-foot-wide, at a minimum, no electioneering zone from the entrance door(s) of the polling place as far into the driveway/parking area as he or she determines appropriate to provide voters with a clear path to the polls.”

It is the moderator’s further duty to ensure that no illegal electioneering occurs at the polling place. RSA 659:9. Although some rules are simple, others have become more complicated. For example, the moderator should designate an election official to periodically check the voting booths and remove any materials left there, including campaign materials or other items left by voters. RSA 659:43. This simple rule contrasts with the rules surrounding RSA 659:43, which states that “[n]operson shall distribute, wear, or post at a polling place any campaign material in the form of a poster, card, handbill, placard, picture, pin, sticker, circular, or article of clothing which is intended to influence the action of the voter within the building where the election is being held.” The Secretary of State’s manual states “Upon observing a voter enter the polling place to vote wearing campaign material, where the nature of the material and the individual’s attire make doing so appropriate, it is reasonable to ask the voter to remove or cover up campaign material being worn which is intended to influence voters in the polling place.” However, moderators should be aware that in 2018 the United States Supreme Court ruled in Minnesota Votes Alliance v. Mansky, 138 S.Ct. 1876 (2018), that a Minnesota law prohibiting individuals, including voters, from wearing a “political badge, political button, or other political insignia” inside a polling place on Election Day clearly violated the First Amendment. Although the Court indicated that some prohibitions were acceptable, it is currently unclear whether the federal courts would uphold New Hampshire’s law that allows a political message to be worn in a polling place, provided that message does not support or oppose a candidate or measure on the ballot at that election.

Q. What qualifies as illegal electioneering?

 A. RSA 659:43 defines illegal electioneering as distributing or posting campaign materials within the building where the election is being held as well as in the areas leading to the polling place. It is also illegal for an election officer or public employee to electioneer while in the performance of his or her official duties. RSA 659:44; RSA 659:44-a.

Q. Can a municipality regulate the distribution of campaign materials or electioneering by ordinance?

A. Yes, to some extent. Under RSA 31:41-c and RSA 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. Do municipalities have to allow exit polls to be conducted?

 A. Voters may not be obstructed or interfered with as they enter or exit the polling place, or as they vote within the polling place. Other than this, however, there are no legal restrictions on exit polling. Therefore, it may make the most sense for the moderator to adopt a policy regarding an acceptable place for exit polling (or other nonvoting activities, such as bake sales) to occur, such as an adjacent vacant room or hallway that does not interfere with the customary entrance pathway, exit pathway, or railed area.

Q. Can campaigners give voters preprinted stickers with the name of a write-in candidate to paste onto their ballots?

A. RSA 659:65 clearly prohibits the use of preprinted stickers. It provides that “a ballot shall be regarded as defective in part and that part shall not be tabulated if either or both of the following conditions exist:…(b) the ballot has attached to it an adhesive slip, sticker or paster not prepared in accordance with RSA 656:21 in the space for any office….” RSA 656:21, in turn, provides that the Secretary of State may authorize the use of pasters for state elections when a candidate dies or is disqualified and the name of a substitute candidate must be used.

While RSA 659:65 is a statute that applies generally to state elections, the New Hampshire Supreme Court has held that the prohibition on stickers also applies to town elections. Kibbe v. Milton, 142 N.H. 288, 291 (1997). The only instance in which a statute permits the use of pasters or stickers on a town ballot is in the limited circumstance when a candidate dies or makes oath that he or she no longer qualifies for the office. In that case, the town clerk is required to omit the name from the ballot, and if ballots have already been printed, to cover the name with pasters. RSA 669:22. “Even when the voters’ intent is clear, if the means they employed to indicate their vote does not substantially comply with the applicable statute, their attempt to vote is a failure.” Kibbe v. Milton, 142 N.H. at 293. (Note that the reasoning in Kibbe would appear to be broad enough to harmonize the recent change to RSA 40:4-g, pertaining to municipal elections, which states “every ballot shall be counted if the intent of the voter can be determined, regardless of whether the voter followed any instructions relative to marking the ballot provided before the vote” with existing law). In Kibbe, although the Court noted that “the right to vote is cherished and protected by our State Constitution,” it still concluded that RSA 659:65, II(b) legally regulates the manner by which a voter may not express his or her vote.

 Q. Can members of the public observe the counting of the ballots?

 A. RSA 659:63 permits the public to observe the counting of ballots. Just like the public can observe voter check-in from outside the rail, the public must be permitted to observe the counting of the ballots from outside the rail. This means that the doors should not be locked when the polls are closed. Ballot counting “shall not be adjourned nor postponed until it shall have been completed.”

When the polling place is rearranged for counting after the polls are closed, counting tables must be located at least four feet from the rail, and no ballot may be placed any closer to the rail than four feet.

Q.  How soon does the winner of a municipal election take over the office?

A. If a person has run unopposed and no write-in candidate has received five percent or more of the votes for that office, that person may be sworn in at any time after the results are declared. Note, however, that in a traditional town meeting town this must occur after the business session of the meeting has ended. RSA 42:3. Otherwise, so long as no recount has been requested, a person elected to an office that was contested or for which a write-in candidate received five percent or more of the vote may be sworn in at any time after the deadline for requesting a recount (the Friday following the election). RSA 42:3; RSA 669:30. Note, of course, that the person elected must take the constitutional oath of office before he or she can assume the office. RSA 42:1.

 Q. How long does a municipal official have to take the oath of office after being duly elected?

 A. RSA 42:3 states that the oath may be taken “immediately” – which, for contested positions means after the period of time for recount pursuant to RSA 669:30 has lapsed – or whenever the select board decides, if it has decided on a time. It is the town clerk’s job, either “immediately, or in accordance with the time adopted by the governing body, if one has been adopted,” to notify the person by a police officer (personal notice or notice left at their home) or by registered mail, to appear before the clerk within six days after receiving the notice to take the oath. RSA 42:4. (The police officer has 4 days to provide notice to the person). If the person does not appear within six days after personal notice, or notice left at their home, or after returning (if they were absent when the notice was left), and in any case within 30 days after the election, the position is legally deemed to be vacant. RSA 42:6; RSA 652:12, IV. It is also worth noting that the person who refuses to take the oath is guilty of a violation and is subject to a fine of up to $1,000. RSA 42:6.

Q: If no one runs for a position, does the write-in with the most votes win?

A. Regardless of whether someone ran for a position or whether there was a write-in campaign, the person who receives the most votes wins the election. If the person who won the election declines to take the office, the position is left vacant. It is not offered to the next-highest vote getter. RSA 652:12, IV. How vacancies are filled depend on the particular position. RSA 669:62 through RSA 669:75 described the filling of most municipal vacancies. The law typically designates a particular board or official to appoint someone to fill the specific vacant position. Which board or official depends on the office. Generally, the person appointed to the vacant position will serve only until the next annual election (rather than the rest of the unexpired term), at which time the office is open once again and someone will be elected to fill the remainder of the term, if any, or a new term, if the original term has ended. RSA 669:61. However, for the trustees of trust funds and highway agents, the law provides that the appointee will fill the entire unexpired term. RSA 669:73; RSA 669:74. Towns may also adopt an optional procedure by town meeting vote to fill vacant positions. This option is available if a vacancy exists and the board or official with authority to appoint someone to fill it has not appointed anyone within 45 days after at least one legally qualified person has applied in writing for the position. In towns which have formally adopted this procedure, voters may petition the selectmen to hold a special town election to fill a vacancy. The petition for special election must be filed at least 90 days before the next annual election. The person elected at the special election serves until the next annual election, when voters elect someone to fill the remainder of the unexpired term (if any) or a new term (as appropriate). RSA 669:61, IV.

Natch Greyes is Municipal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.