As Sununu indicates support, legal questions around ‘provisional ballot’ bill persist

By: - June 7, 2022 5:37 am

Secretary of State Dave Scanlan sits in his office in Concord on Monday, June 6. (Ethan DeWitt | New Hampshire Bulletin)

A bill requiring certain same-day registrants in New Hampshire to produce documents proving they qualify to vote after Election Day – or risk having their votes thrown out – could be on its way to law, after Gov. Chris Sununu dropped some of his previous opposition. 

“The secretary of state says that our process should work,” Sununu said of the bill in a June 1 press conference. “And so, again, they are the experts, not just in the state, but really around the country.” 

But the bill, Senate Bill 418, continues to face questions, including some from the secretary of state himself. In recent comments, Secretary of State Dave Scanlan has said the proposed bill could pose state constitutional issues, and that the 14-day deadline for towns to submit final tallies in elections could create problems for the state in producing general election ballots in time. 

Scanlan, who supports the bill and calls it “workable,” is nonetheless advocating that it be sent to the state Supreme Court to review those constitutional questions. And he says a future Legislature will need to tweak the bill to shorten the 14-day reporting period should Sununu sign it into law. 

“There’s some question about whether our constitution permits provisional ballots,” he said in an interview Monday. “That’s why I’ve said the question should be sent to the court for an opinion.”

Sununu has not explicitly said he will sign the bill. Speaking to reporters June 1, the governor said his office was still “taking a very close look at” the bill, noting that the legislation had not reached his desk for a decision yet. But the governor did say that Scanlan and Attorney General John Formella had assured him that the bill would not create legal problems, and appeared to be leaning toward signing it. 

The apparent support represents a reversal for Sununu on the bill, which he had criticized in early April for potentially causing delays in counting ballots and creating legal liability for the state. 

“The problem I have, generally, with provisional ballots is that you may not get a final result for days after the election, and that’s a problem,” Sununu said during a press conference on April 6. “Provisional ballots cause a lot of problems in other states, and so I think it would be a very significant change that we would have to look at very seriously.” 

SB 418 would create a new type of ballot, an “affidavit ballot,” which would be given to voters on Election Day who are registering to vote in New Hampshire for the first time and don’t have the required documentation with them. 

According to the bill, voters who cast that ballot would be given a package containing a prepaid envelope and a list of required documents. Once home, the voter would have seven days to mail those required documents to the Secretary of State’s Office.

If the voter failed to send the documents within seven days of the election, the Secretary of State’s Office would need to inform town voting officials, the bill states. Those officials would then need to retrieve the affidavit ballot and deduct the candidate choices from the total count for each candidate. The towns would have 14 days after the election to report their final tallies to the Secretary of State’s Office to be certified. 

The voter’s name would then be referred to the state Attorney General’s Office for an investigation, the bill states. 

Republican supporters of the bill have called it a necessary safeguard to prevent out-of-state residents from voting fraudulently in New Hampshire, and to prevent those votes from affecting close elections. But the bill’s critics, who include Democrats and voting rights groups, say the bill goes too far and could disenfranchise a voter who didn’t have the time or resources to produce the documents within seven days.

Opponents have also pointed to legal areas of concern, arguing the bill violates state constitutional provisions ensuring that votes are counted on election night and a constitutional right to privacy; that it could delay the state’s ability to certify primary election winners in time to get general election ballots ready for overseas voters; and that it could put the state into conflict with the 1993 federal “motor voter” law. 

“SB 418 is a solution in search of a problem,” said Henry Klementowicz, senior staff attorney at the American Civil Liberties Union of New Hampshire. “We know that New Hampshire has safe and secure and reliable elections. And yet, SB 418 seeks to throw up unnecessary burdens and roadblocks for voters and we’re concerned about the legality of that.” 

Scanlan, who took over as the top elections official when longtime secretary of state Bill Gardner retired in January, acknowledges some of the concerns with the bill – including the constitutional ones. 

Part II, Article 32 of the New Hampshire Constitution states that elections must be conducted via “meetings” governed by a moderator, who must “sort and count the said votes, and make a public declaration thereof, with the name of every person voted for, and the number of votes for each person.” The constitution also requires towns and cities to send those tallied results to the secretary of state within five days of the election. 

“I’ve simply raised, you know, that there may be a constitutional issue with it, and I’ve done that,” Scanlan said of the bill. “But if the bill becomes law, then we’re going to administer it and leave it up to somebody else.” 

He added that he believes the Supreme Court could interpret the bill to be in compliance with that constitutional provision, if it ruled on the new law. 

Meanwhile, the state faces tight federal deadlines. Under the Uniformed And Overseas Citizens Absentee Voting Act of 1986, states must print and send general election ballots to overseas and military voters at least 45 days before Election Day. Because New Hampshire’s September state primary occurs around 55 days before its November general election – an unusually tight turnaround – state officials generally have just 10 days to certify primary results and print new ballots in that transition period, Scanlan says. 

In the interview, Scanlan initially said the timeframe of the bill would guarantee the ability of the Secretary of State’s Office to certify the results within 10 days. But when directed to the section of the bill stating that municipalities must provide the results for certification “no later than 14 days after the election,” Scanlan said the section could pose a problem.

“Fourteen days would be too long if it stretches out because of the 10-day window that we’re working with,” he said. He added later: “That would have to be adjusted.” 

Scanlan said that if the bill became law and were not tweaked by the Legislature, he would urge all town moderators to return their results within 10 days, not 14 – even those waiting on the new affidavit ballots. 

SB 418 will not affect this year’s state and federal elections; if signed by Sununu, it will take effect Jan. 1, 2023. That implementation delay could allow the Secretary of State’s Office to form a plan to hire temporary staff to process the documentation that comes in surrounding the affidavit ballots within the turnaround time.  

Opponents of the bill have argued that passing it could disrupt the arrangement the state made under the National Voter Registration Act Of 1993 – also known as the “motor voter law” – in which the state was granted an exemption from the requirement to allow voter registration in Division of Motor Vehicle offices after providing for Election Day registration. 

And they’ve added that it could run afoul of the state’s newly passed constitutional right to privacy; because town moderators might need to go through ballots and deduct votes, they might be able to ascertain which candidates those voters supported. 

Scanlan said the bill could raise privacy concerns, but that his office would work with moderators to establish training to mitigate that risk. 

And Scanlan added that he supports the bill because it could reduce skepticism and build trust around elections. 

“It addresses another area of perceived concerns where a person can walk into a polling place without any documentation on the day of the election, and prove their age, identity, citizenship, and domicile simply by filling out affidavits,” he said. “… So 418 uses a form of a provisional ballot, to kind of get to that issue with some reasonable controls in place.”

Comments from both Sununu and Scanlan in recent months have made the bill’s future difficult to ascertain. Sununu, for his part, said he is basing his change in support on assurances from the Attorney General’s Office that the bill would withstand legal challenges if it became law. And he said he had been sufficiently convinced by Scanlan that the bill would not create problems turning around ballots in time for overseas voters. 

“I think the attorney general – both the attorney general and the secretary of state – did a good job of addressing those concerns,” Sununu said. He added: “They felt very confident that where the bill ended up was viable.” 

But a spokesman for the Attorney General’s Office, Michael Garrity, declined to comment on that advice. 

“The New Hampshire Department of Justice has not taken a public position on Senate Bill 418 and we would not comment on any of our attorney-client communications with the governor’s office,” Garrity said June 3. 

Senate Bill 418 is still moving through the enrollment process; it will arrive at Sununu’s office in the coming days or weeks. The governor will then have five days to sign it, veto it, or let it pass without his signature. 

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Ethan DeWitt
Ethan DeWitt

Ethan DeWitt is the New Hampshire Bulletin’s education reporter. Previously, he worked as the New Hampshire State House reporter for the Concord Monitor, covering the state, the Legislature, and the New Hampshire presidential primary. A Westmoreland native, Ethan started his career as the politics and health care reporter at the Keene Sentinel. Email: [email protected]