Lawmakers dig through legal consequences of snowy town voting mess

  • Voting takes place at Three Rivers School in Pembroke on March 14. Polls opened at 11 a.m. and many residents came during that first hour to beat the worst of the snowstorm.

  • A sign outside the Chichester Grange Hall and town offices alerts residents to the date change for town elections on Tuesday, March 14. Chichester postponed voting until March 16 due to the snowstorm. Elizabeth Frantz photos / Monitor staff

  • Secretary of State Bill Gardner speaks to the Senate Election Law Committee on Tuesday, March 21, 2017. David Brooks—Monitor staff

Monitor staff
Tuesday, March 21, 2017

The unprecedented delay of last week’s elections in one-third of New Hampshire towns due to a blizzard has put millions of dollars in town spending in limbo, called the integrity of local elections into question, and left some town officials worrying about possible prosecution.

All of this was too much for the Senate Election Law Committee to untangle Tuesday.

On a 3-2 party line vote, the group declined to send the full Senate a bill that ratified elections scrambled by the weather and instead established a study committee.

Facing a legal deadline to make a decision by the end of the day Tuesday, the majority cited an inability to balance the needs of those who voted, those who didn’t vote and those who may want to protest votes until lawmakers can get more information – particularly since at least two towns (Derry and Hampstead) hadn’t even voted at the time.

“This is asking us to ratify things that haven’t even happened yet,” said Sen. Regina Birdsell, R-Hampstead, chairwoman of the committee.

The three Republicans amended the original bill from Sen. Jeff Woodburn, D-Whitefield, which would have protected moderators and clerks from legal repercussions and ratified all election results. Woodburn and Donna Soucy, D-Manchester, opposed the amendment, saying more concrete action than a study committee was needed.

The bill will go to the full Senate a week from Thursday and, if passed, will then go to the House of Representatives. Sen. James Gray, R-Rochester, who proposed the amendment, said he doubted the study committee would ever be created because this delay will allow legislators more time to figure out how to craft a law balancing various needs.

The vote followed a three-hour hearing that featured plenty of discussion about the confusion – both legal and procedural – that was produced by the blizzard on March 14.

“This was not a trivial decision,” said Gail Cromwell, a member of the select board in Temple.

That small town straddling often-stormy Temple Mountain delayed its election from Tuesday to Thursday after much agonizing among officials, she said, with the final push coming from the town’s road agent.

“He said, ‘I can’t keep the roads clear, but more importantly there’s the parking lot,’ ” she said. “You have to provide safe access into the polling place. ... As a selectman I was more concerned about people getting injured trying to get to the election.”

Cromwell noted that Temple took every action to notify voters of the change, from putting a notice on the town website and signs on town buildings, to “getting our old ladies to start calling around.”

Other election officials from Bow, Newbury and Raymond testified that local officials started debating the question on the Friday before the election, when forecasts made it clear that a serious storm would hit on voting day. One cited a listserv – a sort of closed online discussion group – designed for town moderators that piled up more than 700 messages, including commentary from lawyers and representatives of the New Hampshire Municipal Association.

However, officials from the secretary of state’s office and the attorney general’s office testified that the first they heard of the confusion was Monday morning, the day before the election.

About one-third of New Hampshire towns delayed Tuesday’s elections, but New Hampshire Secretary of State Bill Gardner told the committee Tuesday that they shouldn’t have done so because he said town officials have no legal authority to change election dates.

“The law says you follow the political calendar,” Gardner said, holding up the calendar, which lists the second Tuesday in March as town election day. “If there’s any dispute, this is the law.”

Many disagree with that opinion, however, and much of the debate centers on state law RSA 40:4 II, which says “in the event (of) a weather emergency ... the moderator may ... postpone and reschedule the deliberative session or voting day of the meeting.”

Gardner said that “voting day of the meeting” refers to voting that takes place as part of the business of town meeting, and does not refer to ballot elections for zoning, town and school offices or for the ballot voting conducted by Senate Bill 2-format communities.

Brian Shaughnessy, town moderator of Bedford, disagreed. Citing the history of the law, which was passed in 1998 partly in response to a storm that affected voting, he said that “towns should be able to determine elections when only the town is affected.”

He did agree with Gardner that elections for state or federal offices cannot be moved by town officials.

Anne Edwards, associate attorney general, told the committee Tuesday that the legal situation wasn’t clear.

“It’s debatable whether ‘voting day of meeting’ – whether that does allow the day of town voting to be moved,” she said.

One issue raised frequently Tuesday involved the fear that moderators, clerks and other local election officials might be vulnerable to lawsuits, or even prosecution under election laws, for moving the voting day. All five senators on the committee were opposed to such action, and the wording of the amendment urges the study committee to make sure these officials are “held harmless” from being targeted by legal action.

This is not a theoretical question: Shaughnessy said he has already been sued by a selectman for moving the town election date. He said the suit was dismissed by a Hillsborough County Superior Court judge.

An even less theoretical question involves the ability of towns and school districts to get financing to support bonded items for buildings and equipment that were passed in the elections.

David Barnes is an attorney who acts as a bond counsel – lawyers with expertise on municipal bonds who must sign off on the legality of any bonds before banks and other institutions will buy them. Barnes said uncertainty about the legality of elections held on days other than March 14 prevented him from doing so.

“As a consequence of the current situation, it’s impossible to meet the ‘degree of certainty’ that is required,” he said.

It usually takes weeks or months to actually sell municipal bonds, so a short delay will probably not affect attempts to get financing – unless communities were looking to get bond anticipation notes, quick ways to raise money. That timing might be affected.

Among those who testified Tuesday was Rep. Shawn Jasper, R-Hudson, who is speaker of the House. He said he strongly opposes towns moving the election.

He said that one possibility was allowing communities to hold separate ratification votes – special elections in which voters could say whether they wanted to ratify the results of the town election. If voters didn’t ratify the results, then presumably the entire town or school election would have to be held again.

Several speakers noted that the confusion in state law was an indirect result of the creation of the SB 2 meeting format in the 1990s, which separates deliberative session and voting day where adopted.

The change led to confusion as to when “voting” in state laws means the business of town meeting, and when “voting” means going to the ballot box to elect officials.

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