Senate Bill 418 creates a “provisional ballot”-style system for voters who are not registered in New Hampshire and don’t present proper documents. (Kate Brindley | New Hampshire Bulletin)
For the candidates in next week’s special House election in Rochester, the circumstances may feel familiar. Republican David Walker is facing off against Democrat Chuck Grassie in a rematch, after the election in November resulted in a dead tie.
But this time around, the process will be slightly different. The Feb. 21 election marks the debut of an election law passed last year that tightens the requirements for new voters who forget their identifying documents when registering on Election Day – and creates the possibility that their votes will be voided if they don’t comply.
The new law, Senate Bill 418, creates a “provisional ballot”-style system for voters who are not registered in New Hampshire and don’t present proper documents. Under the law, those voters who are missing documents when they register to vote must cast an “affidavit ballot” and sign an affidavit stating that they will mail photocopies of the documents to the Secretary of State’s Office within seven days.
If the voter does not send those documents in on time, the secretary of state must notify the town, which must remove that voter’s ballot and hold a recount of the votes.
The law was signed by Gov. Chris Sununu in June 2022, but its start date was set to Jan. 1, 2023, to prevent it from taking effect in the September state primary and November general election. Now, this month’s election is the first time it will be applied.
On Friday afternoon, the Secretary of State’s Office and Attorney General’s Office issued 10 pages of guidance to cities and towns – including Rochester – over how to implement the new law.
The guidance outlines exactly how election moderators should process people at the polls who are first-time voters in New Hampshire and are missing documents. It lays out what election officials should say to the voter; how to mark the voter’s ballot so it can be removed later if needed; the letter town officials must send to the secretary of state for each voter that requires and affidavit ballot; and the processes election officials must follow to protect the privacy of the voter’s choices.
According to the guidance, each voter who needs to vote using the affidavit ballot will receive a packet that includes a voucher allowing them to verify their identity at a branch of the Division of Motor Vehicles – if they don’t have identification at home – as well as a prepaid envelope they can use to send their affidavits and proof of identity and residency to the secretary of state. The Secretary of State’s Office is advising voters to mail copies of their documents no later than five days after the election; they need to arrive in Concord no later than seven days after Election Day.
State officials also released a letter Friday explaining the requirements that voters must meet when they cast affidavit ballots. That letter will be included in the packet on Election Day.
But voting rights advocates and Democrats criticized the timing of the guidance Friday, arguing that it should have been released weeks earlier.
“It is frankly absurd that guidance was not sent out the first day of the year when the law went into effect, but to wait until just days before a special election and town elections is beyond the pale,” said Lucas Meyer, a co-founder of 603 Forward, a progressive advocacy group.
Rochester city officials have about a week to prepare for the election – and the new law. In an email Feb. 7, Deputy City Clerk Cassie Givara said the city had “not implemented any specific procedures because we are currently awaiting guidance from the state.”
The Feb. 21 special election seeks to settle a rare tied election between Grassie and Walker. After a recount in September, both candidates received 970 votes.
The candidates are keeping the new law in mind as they make their final pitches. Should a newly registered voter need to use an affidavit ballot and forget to send in documents, their vote could be eliminated, a development that could prove consequential in a tightly contested race.
Grassie says it’s one reason he’s stressing to potential new voters he interacts with to bring their IDs to the polls.
“We’ve been trying to impress them upon making sure they have the right type of documentation, so that we don’t have a provisional ballot issue here,” he said in an interview.
To Grassie, uncertainty on Election Day can significantly affect how voters behave. He’s seen voters in past elections appear at polling stations without their ID and choose not to vote rather than sign an affidavit attesting to their residency. Sometimes voters go back home to retrieve their ID’s and don’t make it back.
“They get frustrated and they just leave,” he said. “They don’t understand the process.”
The uncertainty is why Grassie says he opposed SB 418 when it came before the House last year. “For seniors who don’t have a license or don’t have a need for a license … it’s going to create more of a problem for them,” he said.
But Walker, the Republican candidate, supports the new law.
For new voters without an ID, the new law simply allows them to vote with “a provisional ballot that doesn’t get countered until you prove you are who you say you are,” Walker said in an interview Thursday.
“Anything that strengthens voter integrity I’m for,” he added.
And Walker said he isn’t worried about its effect on the special election. In fact, most conversations he’s had with voters have been centered on policies, not voting reminders, he said.
“I haven’t talked to anybody about it going door to door,” he said. “… The state’s been (requiring) voter ID for a long time. So most everybody knows to bring their identification.”
Still, Walker said that his focus will likely change as Election Day nears, and his campaign plans to put out a flier telling people how best to vote. This month’s special election is expected to see far lower turnout than the general election in November. That means every vote is even more important, and making sure new voters know what to do will be crucial under the new law.
“This election is all about getting people out to vote,” he said. “It’s no longer an issues-type election, it’s a get-out-the-vote election.”
The special election does not have the potential to flip control of the House chamber; currently, the House has 201 Republicans and 198 Democrats. But should other members resign or leave office in the future, the outcome in Rochester could make it easier for Democrats to regain control.
As they await the Rochester election, Democrats and voting rights advocates have called for the affidavit ballot law to be repealed. Democrats have put forward a bill to do so this year, House Bill 502; that bill received a 10-10 tied vote in the House Election Law Committee on Feb. 7, with Republicans opposed, and will receive a vote on the House floor on Tuesday.
Liz Tentarelli, president of the League of Women Voters in New Hampshire, said the uncertainty around the application of the law and the new requirements it puts on town and city election workers mean it should be appealed.
“It’s a bad law trying to solve a problem that isn’t really a problem,” she said. “It’s not as though we have massive voter fraud of people wandering around from town to town.”
But even opponents of the law are unsure whether it will affect any votes in the Feb. 21 contest.
“I admit it’s going to apply to very few people,” Tentarelli said. “It’s only those people registering for the first time in the state.”
But, she added, there will still be some people who may have just moved to New Hampshire, or who have lived there for a while but never voted. Those are the voters who the new law could affect.
“Let’s face it, we’re talking about an election that was tied just a few months ago,” Tentarelli said.
“Every vote matters in this one.”
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