The bill would require that Election Day voters who show up to register to vote without their required documents fill out an “affidavit ballot.” (Mario Tama | Getty Images)
Since 2020, the effort to tighten voting procedures has swept statehouses nationwide. Now, New Hampshire Senate Republicans are seeking a new target to overhaul: same-day voter registration.
A bill unveiled last week would require voters who register to vote on Election Day without sufficient documents to mail copies of those documents to the Secretary of State’s Office within 10 days of Election Day – or have their votes invalidated by the state.
Sponsored by Sen. Bob Giuda and supported by Senate Majority Leader Jeb Bradley, Senate Bill 418 has a clearly stated purpose, Giuda says: to prevent a ballot cast by a voter who doesn’t live in the town from counting in the election.
“Every vote that’s unqualified that counts X’s out a legitimately qualified voter’s vote,” the Warren Republican said in an interview Friday. “And with the close margin we see in so many of our elections, that’s potentially changing the outcome of the election.”
Giuda said he had been working with former secretary of state Bill Gardner and the current secretary, Dave Scanlan, since March 2021 to craft the legislation.
But the mechanism is likely to spark fierce opposition from Democrats and voting advocacy groups, who argued Friday that it will confuse and dissuade voters and cause headaches for local officials. If signed into law, it could inspire a legal challenge, voting advocates say.
“The impact of this is huge,” said Lucas Meyer, the chairman of 603 Forward, a progressive advocacy organization. “…This is a massive change to how we run elections in the state – for a pretty insidious reason rooted in a lie.”
The bill would require that Election Day voters who show up to register to vote without their required documents fill out an “affidavit ballot,” a new type of ballot created by the bill that would allow town officials to distinguish it from other ballots cast that day.
On election night, town officials would count and report out the total votes for each candidate. But the bill would require them to tell the public how many of those votes were affidavit ballots. Town moderators would maintain a confidential, numbered list of those ballots and send that list to the Secretary of State’s Office.
Meanwhile voters who cast affidavit ballots would be given a packet at the polling station by town election officials containing a prepaid overnight mail envelope and a list of the documents required to be sent to Concord.
The Secretary of State’s Office would monitor incoming documents to its office. After 10 days, the office would contact each town to tell them which voters’ documents they were missing. Town officials would use the numbering system to retrieve those voters’ ballots, observe their candidate selections, and nullify those votes from the final tally.
The bill represents a potentially sweeping change to the way New Hampshire treats same-day registrants at the polling booth. Currently, voters who show up at a polling place who are not registered to vote are asked to present evidence of their identity, their age, and their U.S. citizenship. Those documents can take the form of a birth certificate, passport, or naturalization papers. If a voter does not have one of those documents with them, they must fill out a “qualified voter affidavit” in which they swear to their age, identity, and citizenship.
New registrants must also demonstrate that their domicile – the primary place they live – is in the town or city ward in which they are voting, using a driver’s license, vehicle registration, government-issued ID, or check, tax document, or any reasonable piece of evidence showing they live there. Voters who don’t have those documents with them at the polling booth may fill out a separate affidavit – a “challenged voter affidavit.”
In both current scenarios, same-day registrants may cast their ballots after filling out the affidavits. Voters who submitted challenged voter affidavits must provide documentation that they live where they testified to living within 10 days of the election. Failing to provide those documents can result in an investigation by the Attorney General’s Office.
Lying on the affidavit forms can presently result in a fine of up to $5,000 and up to a year in jail.
SB 418 would expand the current process by requiring the domicile and citizenship information be mailed directly to the secretary of state, not to town officials. And it would introduce the possibility of those ballots being invalidated if that information is not returned on time.
To Giuda, that latter change is the purpose of the bill. Without it, he says, New Hampshire statute currently allows people who vote fraudulently to have their votes count – even if they are later investigated and prosecuted for fraud.
Instead, Giuda argues, those who vote should carry the burden of proving their identity as a condition.
“The right to vote is not an unqualified right,” he said. “And the legislature sets the qualifications, not the courts.”
Meyer and other voting rights advocates counter that the cases of wrongful voting are too rare to justify a process they say could invalidate many more legitimate ballots than fraudulent ones.
And opponents have pointed to a particular quirk this year: New Hampshire is due for its once-a-decade purge of each city and town checklist of voters, a mandate that targets for removal any residents who have not voted in the past four years.
When the process was last carried out in 2011, 97,541 voters were removed from the checklist. The following year saw a major uptick in voter re-registrations: 99,299 new voters had registered on Election Day, according to figures from the Secretary of State’s Office.
Opponents of the proposed bill argue the new law could complicate that re-registration process if the same number of people or more seek to re-register after this year’s purge, and could add to the workload of local election staff seeking to explain it.
“There were 220 of these affidavits used in 2016,” Meyer said. “We’re talking about 0.003 percent of voters. None of these people have committed voter fraud or been proven to commit voter fraud. And they are now proposing making voting more difficult and confusing for over 100,000 voters in this state.”
Meyer and others have also raised privacy concerns over town officials’ identification, and potential nullification, of certain voters’ ballots.
If passed, SB 418 would likely require more resources for the Secretary of State’s Office as well, according to Scanlan. In an interview Friday, Scanlan said his office would need to hire temporary staff around election days to process the affidavit ballots and identifying documents. Scanlan did not have an estimate of the cost.
The process could slow down state recount processes. Under the bill, candidates would be allowed to wait until the 10-day window had expired – and any votes were voided – to decide whether to file a recount request. That delay would mean less time between the state’s primary in early September and the general election in November to prepare new ballots.
But Scanlan argued the office would be prepared for that transition, especially with temporary staff. “I think that we would be able to make it work with the schedule,” he said.
Meanwhile, the possibility of a future lawsuit looms should the law pass. After lawmakers passed Senate Bill 3 in 2017 – a bill that required voters to produce domicile documents within 10 days of voting or face fines and jail time – the state Supreme Court struck down the law in 2021, finding it imposed “unreasonable burdens on the right to vote.”
Giuda and Scanlan argue that the new bill is “materially different” from SB 3, and avoids some of those burdens by providing voters with prepaid envelopes.
“It’s a modified version of a provisional ballot, which most other states have because of the requirement in the Help America Vote Act that we’re exempt from,” Scanlan said. “But it is effectively a provisional ballot, where the ballot is counted on the night of the election and if it turns out there’s an issue with the qualification, then the vote is subtracted.”
The bill had been filed under the Senate’s confidential bill process, allowing it to stay out of public view until Jan. 13. But Giuda said he and fellow sponsors are still tinkering with it. Giuda is introducing a committee amendment to replace the original version of the bill released last week. Among other changes, the amendment removes language in the original bill that would have required the affidavit ballots be printed on different colored paper than the standard ballots.
Giuda noted the bill has a long journey of committees and hearings ahead. But for now, he isn’t concerned with a potential court challenge.
“If the court throws this out,” he said, “I will put a full-page ad in every newspaper in the country and say, ‘Come to New Hampshire and vote, and you will determine who our new officials are.’ Because there is no way to not count unqualified ballots right now.”
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