Legislative Changes Affect New Hampshire Election Law

By C. Christine Fillmore, Esq.

As autumn arrives, so does election season. This is a good time for municipal officials to become familiar with some of the recent changes to New Hampshire laws that will affect this year’s federal, state and local elections. All of the changes discussed in this article took effect on or before September 1, 2006.

Voter Registration and Checklists
Citizenship and Domicile Affidavits.
An amendment to RSA 654:31-a explains how citizenship and domicile affidavits must be handled under New Hampshire’s Right to Know Law (RSA Chapter 91-A). These documents may only be disclosed for the purposes of (a) challenging an individual registering to vote or voting, (b) challenging ballots to be recounted to the extent such ballot challenges are specifically authorized by law, or (c) determining the accuracy of any such affidavit. In all other cases, citizenship and domicile affidavits, along with information on the voter registration form, absentee registration affidavit, and application for absentee ballot (except for name, address, municipality and party affiliation), must be treated as “confidential" information that is exempt from disclosure under RSA 91-A:5, IV. This section also requires citizenship and domicile affidavits to be sworn only before an election officer (previously they could be sworn before any person authorized to administer oaths), and requires that the affidavits be retained for three years after the election in which they are used. Chapter 94 (HB 391).

Removal of Unqualified Voters from the Checklist. Two new sections in RSA Chapter 654 establish additional requirements for maintenance of the voter checklist. Upon the request of any person, the supervisors of the checklist are required to review the qualifications of a voter listed on the checklist. If the supervisors determine that the voter’s qualifications are in doubt, they must notify the voter and give him/her 30 days to establish proof of his/her qualifications. If the voter fails to establish those qualifications (or simply doesn’t respond), then the supervisors must remove that person’s name from the checklist. RSA 654:36-a. In addition, the new law requires the supervisors to remove a name from the checklist when they receive a report from the U.S. Postal Service, the Department of Safety, or the Secretary of State that the voter has permanently changed his/her address to another municipality or state. RSA 654:36-b. Chapter 243 (HB 1567).

Identification Required for Voter Registration. An amendment to RSA 654:12 (determining qualifications of an applicant) now requires every applicant for voter registration to provide proof of identity. If the applicant has in his or her immediate possession a photo driver’s license, armed services identification, or other photo identification issued by the federal government, that identification must be presented. Otherwise, the applicant may establish his or her identity through “any reasonable means," including another form of photo identification approved by the supervisors or the clerk, or verification of the applicant’s identity by another registered voter known to the supervisor or clerk, or completion of an affidavit. In addition, for every applicant permitted to establish identity through other means, the election official must mark the registration form to indicate that no photo identification was presented. If the centralized voter registration database (CRVD) indicates that the registrant was not previously registered anywhere in New Hampshire, the election official must also cause the CVRD to indicate that the applicant is a new registrant who presented no photo identification. RSA 659:13. The Secretary of State’s office will send a “letter of identity verification" to each of these voters within 90 days after the general election. This letter will notify the addressee to contact the Attorney General if he or she is not the same person who registered to vote using the addressee’s name. The Attorney General will investigate all such responses, as well as any letters of identity verification that are returned as undeliverable, to determine whether fraudulent registration or voting occurred. Chapter 300 (SB 403).

Viewing and Obtaining Voter Checklist Information. RSA 654:31 has been amended to modify the fees and procedures for obtaining copies of voter checklist information. The law now distinguishes between the “public checklist" (the checklist required by RSA 654:25 containing the names of voters who by law are to be listed on a publicly-available checklist) and the “non-public checklist" (the checklist bearing the names of voters who by law are entitled to have their status as a voter kept nonpublic, such as voters with valid protection orders under RSA 173-B:4). It also specifies that the public checklist of a town or city may only be obtained from that town or city, and the statewide checklist may only be obtained from the Secretary of State’s office. People can view the entire state checklist at the state archives, but cannot print, transfer or otherwise duplicate it. The chapter also prohibits use of the statewide checklist for commercial purposes. Chapter 305 (HB 1238).

Prohibition on Voting in Multiple States. A new section in RSA Chapter 659 makes it a class B felony for any person to vote in a statewide or federal election in New Hampshire “if the person also casts a ballot in the same election year in any election held in any other state or territory of the United States where one or more federal or statewide offices or statewide questions are listed." RSA 659:34-a, I. This prohibition does not apply if the two elections are held on different dates and the voter has legitimately moved his or her domicile to or from the other state between the two election dates. RSA 659:34-a, IV. Chapter 68 (HB 1222).

Absentee Voting
Absentee Voting Based on Election Day Work Obligations.
This amendment to RSA Chapter 657 broadens the definition of voters who are “absent" on the day of an election. Under this new definition, a voter may obtain an absentee ballot if an employment obligation will require the voter to remain at work or in transit to or from work during the entire time the polls are open on election day. Previous law allowed such a person to vote by absentee ballot if a work obligation required the voter to be out of town on election day; the new law addresses situations in which the voter is in town but must be at work or in transit to or from work the entire time the polls are open. Absentee voting affidavits prepared by the town clerk under RSA 669:27, III and by the Secretary of State under RSA 657:7, II(a) must reflect this change. Chapter 136 (HB 221).

Absentee Voting by Emergency Services Workers. A new section in RSA Chapter 657 makes provisions for absentee voting by emergency services workers who are called into service for a federal- or state-declared disaster too late to obtain absentee ballots under ordinary procedures. If an emergency services worker receives notice after noon on Friday before any state election that he or she is being called into service under circumstances that will prevent them from obtaining an absentee ballot and from voting in person, then once the Secretary of State’s office is notified of such a call-out, it will make “every reasonable effort" to deliver absentee ballot materials to the voter and return them to the voter’s town or city clerk. RSA 657:21-a, I. “Emergency services workers" covered by this new provision include law enforcement, EMS personnel, firefighters, New Hampshire National Guard members, utility workers, American Red Cross employees or volunteers, and any other emergency worker declared such by the Department of Safety. RSA 657:21-a, II. The statute also identifies the kinds of “reasonable efforts" the Secretary of State’s office is required to use to deliver and return absentee ballots. RSA 657:21-a, III. Chapter 166 (HB 380).

State Election Issues
Paper Ballots Required.
Under a new section RSA 656:1-a, all state elections must be conducted “using paper ballots in accordance with [RSA ch. 656]." This does not appear to represent a substantive change in the law, since RSA 656:15 already states that “[t]he state general election ballot shall be printed on plain white paper…." RSA 669:24 includes a similar requirement for municipal election ballots. Chapter 23 (HB 1118).

Special Elections for State Representatives. RSA 655:81 has been amended to allow a special election for state representative to be held on the same day as a regular municipal election occurring in one or more of the municipalities within the district, if so requested by a majority of the towns or wards within the district, and if that day falls between 80 and 180 days after the date on which the Governor and Council declare that a special election will be held. Otherwise, the special election will be held (as it was under previous law) on the Tuesday that is at least 80 and not more than 87 days after the date of the Governor and Council’s declaration. Chapter 32 (HB 1122).

Other State and Local Matters
Visual Inspection Required for Recounts.
RSA Chapter 660 and RSA 669:32 have been amended to require that the Secretary of State or his/her assistants—or, in the case of local elections, the local board of recount—make a visual inspection of each ballot when performing a recount of election or ballot question results. No “mechanical, optical, or electronic device" may be used for the recounting of ballots. Chapter 41 (HB1147).

City Clerk Designated as Chief Elections Officer in Cities. Two new sections, RSA 652:14-a and RSA 659:9-a, designate the city clerk as the chief elections officer in each city. These sections also require the clerk to establish uniform election practices and procedures conforming to state and federal law for the conduct of elections at all polling places in the city. Moderators and other election officers are required to comply with the procedures established by the clerk, and the Secretary of State will resolve any conflicting interpretations of state and federal law arising between the clerk and the other election officials. The city’s legislative body may assign to the clerk the duties of the ward officers relative to selection and equipping of polling places. Chapter 78 (HB 1173).

Relaxation of Laws Regarding Placement and Removal of Political Advertising. RSA 664:17 has been amended to remove the prohibition on posting political advertising earlier than the last Friday in July. It is also permissible now to place political advertising within state-owned rights of way as long as (a) the advertising does not obstruct the safe flow of traffic and (b) the advertising is placed with the consent of the owner of the land over which the right of way passes. The amendment eliminates the requirement that law enforcement personnel notify a candidate before removing his or her improperly placed advertising, but adds a requirement that such removed advertising be kept for one week at a designated location so the candidate may retrieve it. Chapter 273 (HB 349).

Christine Fillmore is Staff Attorney with LGC’s Legal Services and Government Affairs Department.