Local Officials Prepare for Election Season
The election season is underway, and, inevitably, numerous questions arise. Moreover, the legislature has recently amended a number of election laws. The following are a few brief reminders and a summary of selected statutory amendments.
Q. When can a candidate put up political signs?
A. RSA 664:17 governs the placement and removal of political advertising (for example, signs). It provides that no political advertising shall be placed on, or affixed to any public property, including highways, or private property absent the owner’s consent. A political advertising may be placed or affixed no earlier than the last Friday in July prior to the state primary.
Q. Is a candidate required to take down his or her political signs?
A. Yes. The candidate must remove all political advertising no later than the second Friday following the election. However, if the election is a primary, and the candidate has won in the primary, then his or her advertising may remain.
It is unlawful for anyone, other a private property owner or police officer, to remove, deface, or knowingly destroy any political advertising on private property. A police officer may only remove improper political advertising after notifying the candidate that the sign is improper and allowing 24 hours for removal.
Q. Are there civil penalties for the improper destruction of political signs and other election law violations, such as the dissemination of campaign materials at the polling place?
A. Yes. Effective June 1, 2004, civil penalties up to $1,000 may be imposed for the violation of campaign statutes relating to the distribution of campaign materials at the polling place, anonymous push-polling, removing, defacing, and destroying of political advertising.
Q. Can a municipality regulate the distribution of campaign materials or electioneering?
A. Yes. Under RSA 31:41-c and 47:17, towns and cities, respectively, have the power to make bylaws 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. Bylaws regulating such election activities must be provided to the town clerk immediately after their adoption so that they may be available to candidates filing for office. Finally, the bylaws must be posted at each polling place at least 72 hours in advance of any town election.
Q. What is the role of the moderator, especially with respect to electioneering?
A. The moderator is the chief election officer in charge of the polls. The moderator has substantial authority and discretion for ensuring that voting is conducted in accordance with the law.
The moderator is responsible for ensuring that illegal electioneering does not occur at the polling place; RSA 659:43; RSA 659:44. The moderator is responsible for the areas leading from the building entrance to the room where the voting occurs and that room itself. The moderator 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.
It is not unusual for certain social activities (for example, meals, sales, public information displays, etc.) to occur within the building and room where the voting is conducted. Such activities should not interfere with the voting process. A voter must be able to come to the polling place, cast his or her vote, and leave without having to avoid, or turn away from individuals engaged in collateral, non-voting activities. Where people actively involved in electioneering, or general onlookers, come into the polling place, the moderator must require that signs and other electioneering displays be left outside or concealed.
Finally, the moderator ensures that all election officials are familiar with their responsibilities and available on the day of the election. The moderator presides in the town meetings, regulates the business thereof, decides questions of order, and makes a public declaration of every vote passed, and may prescribe rules of proceeding. Importantly, though, the town may alter such rules.
Q. Who enforces the election laws?
A. 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. After an investigation and a determination of a violation, the Attorney General may issue a cease and desist order. If the respondent does not comply with the order, then the Attorney General or his or her designee may petition the court for an order of enforcement.
Q. Who can vote?
A. All persons whose names appear on the corrected checklist are entitled to vote unless successfully challenged. No person whose name is not on the checklist is allowed to vote, unless, in the opinion of the checklist supervisors, it clearly appears that the name of the qualified voter has been omitted from the checklist by clerical error or mistake. A serviceman on leave is also permitted to vote provided he or she: (1) is otherwise qualified to vote; and (2) was not in the municipality during the last session of the supervisors of the checklist because of his or her service commitment. RSA 659:12.
Q. Can a person register to vote on Election Day?
A. Yes. Pursuant to RSA 654:7-a, a person may register to vote on Election Day provided the person completes a standardized voter registration form. Any person whose name is not on the checklist, but who is otherwise a qualified voter, shall be entitled to vote by requesting to be registered at the polling place on Election Day. The applicant, however, must produce sufficient proof of qualifications as provided in RSA 654:12.
Under RSA 654:12, a person seeking to register on Election Day is required to provide proof of citizenship, age, and domicile. The applicant may provide the following evidence of citizenship: birth certificate, passport, naturalization papers (if applicable), citizenship affidavit, or any other reasonable documentation that indicates the applicant is a United States citizen. Any reasonable documentation evidencing that the applicant is at least 18 years or older is sufficient.
The applicant must furnish reasonable documentation indicating that the applicant has a domicile and intends to maintain it, in the municipality or ward in which the applicant seeks to vote. Provided the document is currently valid, was issued to or in the applicant’s name, and shows the applicant’s domicile as his or her address, the following are presumptive evidence of domicile: New Hampshire driver’s license, New Hampshire vehicle registration, Armed Services identification, and other photo identification issued by the United States government. If the applicant does not have reasonable documentation, the applicant may furnish a domicile affidavit as provided in RSA 654:12(c).
Finally, any person who is waiting to register to vote at the polling place on Election Day shall be allowed to vote, even after the poll closing.
Q. What is the legal standard for a “domicile?”
A. For voting purposes, a person can only have one domicile. To qualify as a domicile, the person, more than any other place, must have established a physical presence and manifest an intention to maintain a single, continuous presence for domestic, social, and civil purposes relevant to participating in democratic self-government. Although a person may certainly change his or her domicile at any time, such an intention does not terminate an established domicile until the person actually moves. RSA 654:1.
In Every v. Supervisors of the Madison Checklist, 124 N.H. 824 (1984), the New Hampshire Supreme Court considered whether, the plaintiff and his wife were domiciled in a New Hampshire town for purposes of voting. The Everys lived in a Massachusetts apartment for approximately 140 days per year, the number of days the plaintiff was required to teach there. The Everys also lived approximately 220 days per year in the town, where they: (1) owned a home; (2) attended a nearby church; (3) participated extensively in local sports activities; (4) ran a small business with a New Hampshire mailing address; and (5) were active members of a property owners association. Further, the Everys sent their son to a nearby school, which was approximately 30 miles from the town. Based on the foregoing, the Court concluded that the plaintiff and his wife were domiciled in the town based on the amount of time the Everys spent in the municipality, their involvement in community affairs, and their son’s school status.
Q. Does a temporary absence negatively impact a person’s domicile?
A. No. RSA 654:2 provides that a domicile for voting purposes shall not be interrupted or lost by a temporary absence so long as there is an intention of returning to the domicile. Once existing, a domicile continues to exist until another domicile is gained.
Q. Is there a new voter registration form?
A. During the 2003 session, the legislature amended RSA 654:7, and set forth a new voter registration form. The new form combines the voter registration and same day registration forms. It inserts a new section, which explains domicile and certain responsibilities that accompany establishing a domicile in New Hampshire. Because of these changes, the form was enlarged to 8½ by 11 inches. The New Hampshire Department of State anticipates that the computerization of the checklist, required by the federal Help America Vote Act of 2002, will eliminate the need for duplicate copies of the form.
Q. What are the accessibility standards for polling places?
A. The United States and New Hampshire constitutions and laws require every polling place be easily accessible to all persons, including individuals with disability and the elderly. In order for a polling place to comply with these accessibility requirements, a number of specific conditions must be met. These conditions concern the following: parking; the route to and from the polling place; ramps (where provided); the entrance(s); the doors; floor surfaces; and, of course, the voting booth(s). RSA 658:9-a.
RSA 658:9-a establishes the minimum accessibility standards. The Americans with Disabilities Act (ADA) also addresses many of these same standards. Although the two laws are complimentary, there are certain differences. Specific accessibility questions should be addressed to the New Hampshire Department of Justice or the Secretary of State.
Q. Can a person who has previously been removed from bonded position run for an office that requires bonding?
A. Yes. Under RSA 669:17-c, any candidate running for an office that requires bonding, who has previously been removed from a position requiring bonding, must inform the selectmen. The selectmen, in turn, must inform the town’s bonding agent who must determine the candidate’s eligibility to be bonded. Effective January 1, 2005.
Q. Can voters petition for a recount?
A. Yes. Five legal voters who have voted on any non-constitutional amendment question may, no later than the second Friday after the election, petition the secretary of state for a recount of the vote.
Q. When can a municipality destroy ballots?
A. All state election ballots remaining in the possession of the town or city clerk may be destroyed 60 days after the state election.