GOP-backed voting law lands in the laps of courts, clerks

Poll workers and volunteers process same-day voter registrations at Ward 1 in Keene during the 2020 presidential primary. (Keene Sentinel photo by Sierra Hubbard)

Now that Republican Gov. Chris Sununu has signed a bill into law creating a special “affidavit ballot,” it will be up to local election officials to make it work and to the courts to determine if it’s even legal.

Keene City Clerk Patricia Little said the law, which goes into effect in 2023, will slow the vote count and create other challenges to a system that has traditionally operated smoothly.

“It will definitely have an impact,” she said. “I’m a little disappointed the governor signed it, but he did, and we’ll have to make the best of it.”

Under Senate Bill 418, which Sununu signed June 18, election officials would give affidavit ballots to people who register to vote on election day without proper identification.

Poll workers would keep these ballots separate from others so that these votes can be subtracted from election totals if the voter doesn’t provide the proper ID in seven days.

Currently, voters can sign an affidavit attesting to their qualifications and then can cast their votes. A post-election verification investigation can take place regarding these voters, but in any case, their votes stand.

Secretary of State David Scanlan suggested before SB 418 was approved that lawmakers might want to ask the N.H. Supreme Court about its legality, but he has also said it would work.

Proponents of the bill say it will ensure unqualified voters don’t get to fraudulently participate in elections, many of which are determined by close margins. Opponents said there’s no evidence of significant fraud that would justify changing the system in ways that could violate the state Constitution.

The ACLU of New Hampshire filed a lawsuit in Hillsborough County Superior Court South against the measure on Tuesday, alleging it would unconstitutionally diminish voting secrecy by tying voter names to affidavit ballots.

“The government should not know who you cast your ballot for in a state election — that’s why SB 418 is an unconstitutional infringement on the right to privacy,” Henry Klementowicz, senior staff attorney at the ACLU of New Hampshire, said in a written statement.

“Voting is one of the most important democratic things a person can do, and they deserve to do so privately and secretly.”

Election officials would maintain a list of those who voted by affidavit ballot, so that these votes could be subtracted later if proper ID were not provided. Opponents of the bill say that by matching these names to the corresponding ballots someone could theoretically find out how these people voted.

The 603 Forward and Open Democracy Action nonprofit groups as well as other plaintiffs filed a lawsuit in the same court over the law on June 18, alleging it puts up obstacles to voting and violates a provision in the state Constitution that requires municipal clerks to report election results to the state within five days.

Under the new law, municipalities would have 14 days to report vote totals after subtracting affidavit ballots in cases where voters never supplied the necessary ID.

Delays in knowing the results in primary elections will lengthen the time needed to create the general election ballot and get it out to residents outside the country.

“Due to the law’s lengthy certification process, overseas voters, including military voters, will not receive their absentee ballots in a timely manner, threatening their ability to have their votes returned and counted,” the June 18 lawsuit says.

Federal law requires ballots to be mailed to military voters 45 days before a federal election.

“That means that local election officials are required to mail general election ballots to military members only a few days after, and possibly even before, primary election results are certified under SB 418,” the lawsuit says.

“This creates an impossible task for local election officials and may ultimately restrict our armed service members from casting their ballots.”

Little, the Keene city clerk, said an advantage of the present system is being able to quickly identify election outcomes after the vote. She also wonders how election recounts will fit into the new law.

Across the city of Keene, she said, about 50 people tend to vote without proper documentation in a national election, she said. About 13,000 Keene residents voted in the November 2020 general election.

Little questioned the need for creating a new voting system.

“There have been instances where someone voted in their hometown and then voted in another community, but those instances would be in the single digits statewide,” she said, pointing out that this would be a felony.

A total of 814,499 votes were cast in New Hampshire in 2020 compared to 755,850 in 2016.

Sununu and other state officials have said New Hampshire has an accurate and honest election system, despite claims by former President Trump that fraud led to his defeat in the state in the last two general elections.

“The New Hampshire Secretary of State is the foremost authority on our state’s elections, and he has given me his full assurances that this bill does not affect the state’s ability to get military ballots out on time, and that our processes will work without delay or impediments with its passage,” Sununu said in a statement after signing the bill.