Troubleshooting on Election Day
The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.
An election is a complex event. Election officials spend a lot of time each year learning election laws and preparing for the election so that it will run smoothly. There are always a few questions, however. These are some of the more common questions that arise among our members each year.
Q. Who is in charge of elections?
A. The select board is responsible for setting up the polling place according to the requirements of RSA 658:9. However, the moderator is the chief election officer in charge of the polls on election day. It is the moderator’s duty to make certain all election officials understand their roles and fulfill them on election day. RSA 659:9. Of course, all election officials serve an important role. Municipal election officials may include any moderator, deputy moderator, assistant moderator, town clerk, deputy town clerk, city clerk, deputy city clerk, ward clerk, select board members, 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.
Q. Do select board members have to be at the polling place on election day?
A. Yes, select board members must be in attendance at the polling place at a state general election. 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….” RSA 658:21-a now permits a select board member who cannot attend at the polling place to appoint a select board member pro tem to perform his or her duties.
With regards to town elections it is generally recommended, but not required, that the select board be in attendance while the polling place is open and when ballots are being counted.
Q. What if we run out of paper ballots?
A. The town or city clerk should create more “unofficial” ballots following RSA 658:35. Photocopies should be made 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 we have to allow people to “observe” the election from inside the polling place?
A. Yes. Any person has a right, as safety, welfare and rights of voters permit, to observe in-person voter registration, wherever it is conducted. 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 shall announce the person’s name twice and also announce the address the person has registered as his or her domicile one time. These announcements will be made in a manner that allows any person appointed as a challenger to hear the announcement. RSA 654:7-c; RSA 666:4.
The select board should have the guardrail set up so that only those within the rail can approach within six feet of the ballot box and voting booths, and so that the voting booths and ballot box are within plain view of those observing from outside the rail. RSA 658:9.
Q. How do we handle it when someone challenges a voter?
A. Challenges 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 659:27-a.
The clerk must keep a record of all challenges with the name and address of voters completing the affidavits, the name of the person challenging, who signed the Asserting the Challenge” form, the outcome of the challenge, and the reason for the challenge. RSA 657:26; RSA 659:27; RSA 659:27-a; RSA 659:32. For successfully challenged absentee ballots, the clerk shall enter this information in the ElectioNet Absentee Ballot module, by selecting the reasons from the appropriate dropdown. RSA 657:26.
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. 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.
It is the moderator’s duty to ensure that no illegal electioneering occurs at the polling place. The moderator should control all areas from the building entrance to the room where the voting occurs. The moderator is also responsible for setting up a 10-foot wide “no-electioneering zone” from the building entrance extending as far into the driveway or parking area as the moderator deems appropriate. RSA 659:43, II. In addition, 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.
Q. What is illegal electioneering?
A. Illegal electioneering includes the distribution, wearing, or posting 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. RSA 659:43, I, II. 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 we have to allow exit polls?
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 non-voting 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. No, under New Hampshire election statutes this is prohibited. RSA 659:65 provides that “a ballot shall be regarded as defective in part and that part shall not be tabulated if . . . 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 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. 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. See id. at 293-94.
Q. Can members of the public observe the counting of the ballots?
A. Yes. Just as the public may 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. RSA 659:63.
Q. How soon does the winner 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 and, in a traditional town meeting town, 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.
Q. How long do people have to take the oath of office?
A. Every town officer is required to take the constitutional oath of office. RSA 42:1. The select board decides when the oath will be taken (so long as it is after the end of the recount period under RSA 669:30). RSA 42:4. 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. If he or she 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 that person is guilty of a violation and is subject to fines. RSA 42:6; RSA 625:9 (classification of violations as crimes).
Q: If no one runs for a position, does the write-in with the most votes win?
A. Yes. The person who receives the most votes wins the election, whether they ran for the position or were written in by voters.
Q: What if the person with the most votes declines to take the position after being elected? Do we offer the position to the person with the next-highest number of votes?
A. No. This is a common misconception. If the person who won the election declines to assume the office, the position is vacant. RSA 652:12, IV. Consult RSA 669:62 through RSA 669:75 for the method to fill a vacancy in a particular municipal office. The law designates a particular board or official to appoint someone to fill each category of vacant position. Generally, the person appointed 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 some positions, the law provides that the appointee will fill the entire unexpired term. RSA 669:73 (trustees of trust funds); RSA 669:74 (highway agents).
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 select board 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.
Original article, written by C. Christine Fillmore, first appeared in the February 2010 issue of New Hampshire Town and City. This article has been revised and updated by Stephen C. Buckley, Legal Services Counsel with the New Hampshire Municipal Association. He may be contacted at 603.224.7447 or at legalinquiries@nhmunicipal.org.