Legislators reject a proposal for a ‘ratifying election’ for postponed town meeting

  • Speaker of the House Shawn Jasper, R-Hudson, testifies before the House Election Law Committee on April 4, 2017. David Brooks—Monitor Staff

Monitor staff
Tuesday, April 04, 2017

The unprecedented confusion over town meeting voting being moved due a blizzard got even more unprecedented and stayed just as confusing Tuesday, after legislators killed an attempt to give towns the option of holding another election to clarify – or perhaps muddle – any delayed election.

The failure leaves unsettled the legal status of decisions made by voters in the 73 towns that shifted voting from March 14. In particular, bonded warrant articles passed in at least a half dozen of these towns and school districts cannot raise any money until the legal issue is settled.

Tuesday’s five-hour meeting of the House Election Law Committee reflected the uncertainty that officials feel with events that have never happened before in New Hampshire history: All its votes ended in 10-10 ties.

The committee was considering a so-called “non-germane amendment” that House Speaker Shawn Jasper had attached to an innocuous bill about putting email addresses on absentee ballots. This parliamentary move was made to get the issue considered quickly enough to meet an early June deadline for towns to sell the bonds their voters passed. Because the proposal was an amendment, a tie vote means that it died.

Jasper’s proposal, which he said was developed after consultation with a number of officials, was to give towns and school districts that didn’t vote on March 14 the option of holding a ratification election “to cure any possible defects ... caused by its postponement.” That ratification would have been a single up-or-down vote on whether people agreed with everything that was done on the postponed election, including election of officials, changes in zoning and, in SB 2 towns, all warrant articles.

If that ratification vote was positive, then town government could proceed. If the ratification vote was negative, then virtually everything about the earlier election would be rejected, including the unseating of officials who had already been sworn in, and several new mechanisms would kick in to keep the government operating.

Jasper acknowledged that the process might be clumsy and didn’t answer all questions, but he said the “incredibly tight time frame” meant it was the best way to avoid “even more chaos.”

“As imperfect as that may still be, there is no perfect (solution) here,” he told the committee.

But others disagreed, saying the decision by moderators to postpone elections was justified by state law and no corrective special election was needed.

“The very firmly held, studied opinion of every municipal lawyer ... was of course the town moderator had the authority to postpone both the ballot vote option of the town meeting and the part that I call ‘everybody talk and raise your hands and yell at each other’ portion,” said Jae Whitelaw, a municipal law attorney in Laconia. She was one of a number of people, including a half-dozens clerks and town moderators, who testified to a frenzy of discussion among town officials throughout New Hampshire as it became obvious the huge blizzard would hit on voting day.

All that was needed, she and several other speakers argued, was some confirmation from legislators that the postponed elections were legal, which would meet requirements for town and school bonds to be sold on the open market. Last week the state Senate tabled a bill that would have done just that, out of concerns that it didn’t help voters who were “disenfranchised” when voting day was shifted at the last minute.

Confusion about whether moderators can move local elections stems from ambiguous wording in a law, RSA 40:4, that says moderators can move “voting day of the meeting ... in the event (of) a weather emergency.”

Secretary of State Bill Gardner has argued consistently that “voting day” refers to the business portion of town meeting, not to ballot elections of officials, and that other portions of state law give the official political calendar the final say on when town elections must be held.

Whatever the law says, there’s no doubt that it has produced confusion.

Scott Kinmond, the town administrator for New Durham, said a petition with more than 200 signatures is being circulated in his town objecting to the postponed election, which resulted in several very close votes on controversial matters. He objected to Jasper’s proposal for a ratifying election, saying it would make things worse.

“The speaker talked about chaos. If the amendment happens, you will see compounded chaos,” Kinmond said.

Some opposition to Jasper’s plan came from people who said it implied that moderators were wrong, perhaps even criminally wrong, when they decided to move the election.

“I think a number of officials do think it’s a type of punishment,” said Judy Silva, executive director of the New Hampshire Municipal Association – a group that drew its share of criticism Tuesday for advising towns that they could shift voting day. “It seems ... they are being taken to the woodshed and being told, ‘You didn’t do this right, you’re going to have to do it again.’ ”

Several moderators – some who moved voting day and one who didn’t – spoke Tuesday about the difficulty in making the decision, and argued that they did not get any guidance from the Secretary of State’s office or attorney general until a conference call with Gov. Chris Sununu at 2 p.m. Monday – by which time many towns had already decided to postpone.

Sununu urged officials not to shift voting day, but said he and other state officials had no legal say over town elections.

He also urged towns that had moved voting to keep the polling place open and provide absentee ballots, so that people who showed up could still cast a vote.

This has complicated matters, however, because it’s illegal: State law says no absentee ballots may be provided in person later than 5 p.m. the day before an election.

Another legal complication involves recounts. State law says they must be filed by Friday after voting day – yet many towns postponed their voting until after Friday, March 15, implying that no recount could be filed.

Several town officials also commented that the cost of an unexpected special election would be difficult to bear.

(David Brooks can be reached at 369-3313 or dbrooks@cmonitor.com or on Twitter @GraniteGeek.)