In rare bipartisan effort, bill to address Windham ‘overvoting’ errors signed into law
“Overvoting” occurs when a marking on a ballot, a crease, or an irregularity causes the machine to conclude that too many circles were filled in. (Photo illustration by Ethan DeWitt | New Hampshire Bulletin)
The idea was meant to save Windham election officials time ahead of the high-stakes 2020 election. Instead, the decision to use a folding machine to get absentee ballots prepared faster spurred an electoral fiasco that continues to fuel misinformation.
After unwittingly creating folds that crossed into the bubble of one of the Democratic candidates, Windham poll workers set the stage for a major counting error. On Election Day, around 300 Republican votes in one specific House race were rejected by the machines, and 99 votes erroneously went to that one Democrat. The rejections didn’t affect the outcome – and were fixed after a recount – but they did make the race much closer than it should have been.
Now, new legislation to address one of the causes of that mixup has been signed into law.
Gov. Chris Sununu signed a bill last week to require New Hampshire voting machines to alert voters when their ballots include “overvotes,” allowing for corrections. It’s one election law that’s inspired rare agreement between political advocates on the left and right.
Under the state’s current system for machine-counted ballots, if a voter marks their ballot in such a way that a machine thinks they may have voted for more candidates than allowed, the vote in that race does not count. The issue, known as an overvote, occurs when a marking on the ballot, a crease, or an irregularity causes the machine to conclude that too many circles were filled in.
Overvoting is not uncommon. In 2020, the town of Derry found that 848 of its ballots cast contained at least one race in which the ballot machines had registered an overvote and not counted the vote, moderator Mary Till testified before Senate lawmakers earlier this year. That represents almost 5 percent of the total vote count in the town, Till said.
Those errors can be caused by any number of mistakes. In Windham, the culprit was an unfortunate creasing technique. In other cases, a piece of dust, a stray pen mark, or a stain could cause the problem. Then there are the voters who fill in bubbles and realize they made a mistake, drawing “X’s” through erroneously chosen candidates and arrows to demonstrate their actual choices. Those adjustments cannot be identified by the machine, which only sees a surplus of filled in circles and adjusts from there.
“When you were a kid and you took standardized tests, and the teacher always said erase your stray marks, because the machine is going to read it as an error?” said Rep. Marjorie Porter, a Hillsborough Democrat and the prime sponsor of the bill. “That can happen” on ballots too, she added.
But because the state has not required towns to report overvotes to the Secretary of State’s Office, the extent of the issue throughout the state has not been clear.
And New Hampshire has fallen behind the majority of other states on correcting the overvote issue, advocates for the new bill say. Since the state introduced ballot counting machines three decades ago, the machines have not been programmed to tell a voter in real time that their vote was not read and must be corrected. Instead, voters walk away without knowing about the error, and the votes are not counted.
House Bill 1163 changes that. The bill requires the machines to be programmed to return any ballot deemed to be an overvote to the voter. The voter would then have the opportunity to amend the ballot to make clear the candidate or candidates they wanted. The bill requires election officials to tell the voter to deposit the ballot into a separate box; all ballots in that box would then be hand counted by election officials once the polls had closed.
The idea, says Porter, is to provide immediate feedback that a correction is necessary.
“It rejects the ballot and gives it back to the voter, like when you put a bad dollar bill in the coin machine,” Porter said.
Meanwhile, the bill’s supporters note that diverting the ballots to a box to be hand counted allows human moderators to make the final determination of what the voter intended, and skirt any future misinterpretations by the machine. A 2003 New Hampshire Supreme Court decision in the appeal of Peter McDonough to the state Ballot Law Commission found that recounts must determine votes based on a “reasonable certainty” of the intent of the voter.
“If the machines either misread a ballot and attribute an overvote, or there’s an apparent overvote, those ballots will get hand counted,” said Ken Eyring, a conservative elections analyst and a member of the state’s Special Committee on Voter Confidence. “And that will, I believe, increase voter confidence, because now, with those ballots being hand counted, the intent of the voter will now be honored.”
The bill also requires that the number of overvotes and undervotes for each contest be recorded in the machine’s official results and sent to the Secretary of State’s Office. Undervotes are when a voter does not make a selection for the office – or if the machine does not record a vote.
Advocates say analyzing undervotes could demonstrate how often voters made selections for certain races – such as governor and U.S. senator – while ignoring selections in other races.
After an external election audit for Windham, released in July 2021, advocates on the left and the right came together to find a solution. It was quickly apparent that the problem in the town’s voting results was a result of overvotes.
According to the audit, the folding machines used by election officials created creases in the ballots that were determined by the voting machines to be extra votes. Because the folds were disproportionately falling on Democratic candidate Kristi St. Laurent, the machines were disproportionately rejecting Republican voters’ ballots.
In Windham’s 2020 House race, four Republicans and four Democrats were vying for four seats. A Republican voter would likely have voted for four Republicans. For those voters, an extra crease through St. Laurent’s ballot registered as a fifth vote. Democrats, meanwhile, would have likely voted for the four Democrats; a crease in those ballots would not have put them over the four-candidate voting limit in the eyes of the machine.
As advocates looked for legislative fixes, the simplest option to avoid repeating the outcome appeared to be reprogramming the machines to reject the error-ridden ballots. That idea first emerged in a 2021 bill, but it was defeated after the Secretary of State’s Office raised objections surrounding privacy, Eyring said. State officials worried about moderators being able to identify voters’ choices if overvoting occurred. And they had concerns that because the original bill would require the moderator to inform voters in person of the error, that it would create two classes of voters, giving an advantage to those who were able to vote in person.
The 2022 bill adjusted for those concerns, Eyring said, winning over the support of Secretary of State Dave Scanlan.
Passing HB 1163 was a key goal of Eyring’s Government Integrity Project, a conservative organization responding to complaints from the right about election processes in 2020. Eyring himself sat down with Scanlan to persuade him to lend support, he said.
But the bill also had Democratic buy-in from Porter, who worked with Eyring, Scanlan, Till, and another activist, Deborah Sumner, as well, she said.
“The strange bedfellows of this bill,” Porter said with a laugh.
The bill would not have completely fixed the problems in Windham, Eyring says. The 99 votes gained by the Democratic candidate due to the ballot folds would not have been rejected as overvotes because those 99 ballots were cast by Republican voters who voted for fewer than four candidates. But the machines would have spit back the 300 ballots deemed as overvotes that didn’t count, he added, allowing the hand count to at least correct those mistakes.
“This addresses a lot of the issue with what happens specifically to Windham, but not all of it,” Eyring said.
To further adjust for those errors, Windham’s auditors suggested that poll workers avoid folded ballots or improve training to make sure the ballot folds adhere to marked fold lines that don’t cross over candidate circles.
Both sides do agree that HB 1163 could help with voter confidence.
“The voting machines are not perfect, you know – they do make mistakes,” Eyring said. “They’re mechanical in nature.”
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.