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NH lawmakers want tougher enforcement of election laws

State House Bureau

February 13. 2017 10:03PM
By the numbers: Voter ID
Statistics from the Nov. 8 election:

1,423: Number of people who voted without photo ID

6,033: Number of people who voted without proof of NH domicile

744,296: Total number of votes cast

2,736: Clinton margin of victory over Trump in NH

1,017: Hassan margin of victory over Ayotte

CONCORD — While evidence of widespread voter fraud has been hard to come by, despite oft-repeated claims by President Donald Trump, many lawmakers in the State House agree that New Hampshire election law needs to be tightened up, especially when it comes to enforcement.

Gov. Chris Sununu acknowledged as much on N.H. Public Radio Monday morning in the wake of Trump’s latest accusations.

Sununu said he doesn’t believe there is widespread illegal voting in New Hampshire, but said he wants a tighter definition of residency and more aggressive prosecution of violations.

From the clutter of nearly 40 bills in the House and Senate, lawmakers hope to deliver to Sununu an election reform package that will more effectively restrict voting in New Hampshire to legal residents of the Granite State, and ensure that potential fraud is fully investigated and prosecuted.

That prosecution has been ineffective to virtually non-existent in recent years, according to State Rep. David Bates, R-Windham.

Bates has been involved in strategy sessions with House Speaker Shawn Jasper, R-Hudson, other members of the House leadership team, and election law attorneys in the hope that an election reform bill can be ready for Sununu’s signature by the end of the current session.

“The bills I’m bringing forward focus on things that are fairly modest — adjustments to the current process we have in place that erect no barriers, no new requirements,” said Bates. “It’s really making changes to the current process, with a focus on enforcing our election laws, the existing laws, to ensure that people are not voting improperly.”

Enforcement of existing law was a major concern as lawmakers heard testimony last week on HB 552, which would put the Secretary of State’s office in charge of verifying voter affidavits.

Voters who are not able to prove New Hampshire residency when registering to vote are now required to sign an affidavit, attesting to their address. A postcard is then mailed to that address, and must be returned to the Secretary of State, to verify the representation made in the affidavit.

The Secretary of State would like to take over the verification process because the Attorney General’s Office isn’t doing the job. Unverified affidavits have been piling up since 2012, as the Department of Justice claims it simply does not have the manpower to chase down every affidavit for which no postcard was ever returned.

No reports since 2011

State Rep. Bill Ohm, R-Nashua, points out that the Attorney General has not submitted a report on unverified affidavits since it reported on the 2012 election.

Letters were sent to 20,000 voters who filled out affidavits, but only 16,000 were confirmed, leaving the status of about 4,000 votes in limbo.

“We had a number of letters in the 2012 election, with no report from the Attorney General,” said Ohm in introducing HB 552. “There was no report made on the 2014 election. My bill changes the authority for the investigation to the Secretary of State. If the Secretary of State determines that fraudulent voting or registration has occurred, then they can forward it to the Attorney General for prosecution.”

Ohm said he believes that approach “strikes a better balance between the abilities of both offices to perform the proper review of this type of situation.”

The bill, co-sponsored by State Sen. Sharon Carson, R-Londonderry, appropriates between $69,000 and $74,000 to the Secretary of State’s office to hire an investigator.

Assistant Secretary of State David Scanlan, head of the Election Division, spoke in support of the measure.

“The number of mailings that have come back as undeliverable has been on the decline for the last couple of elections, to the point where it is manageable to take a look at those items,” he said.

“There’s a better way to do what is happening now. I know the Attorney General’s Office has standards they use when they conduct an investigation, but when it comes to verifying whether a voter who did not respond to a mailing is a qualified voter or not, it can be determined in a more efficient manner.”

Dover experience

Scanlan described how election officials in Dover went through postcards returned as “undeliverable” and were able to resolve each one.

“They winnowed out incorrect addresses — some had moved but were still in the city — and by the end were able to develop an explanation for every postcard that went out, and it wasn’t voter fraud,” said Scanlan. “They were able to determine that there isn’t anything going on in Dover that should be of concern.”

He said the Secretary of State, with a full-time investigator, could do the same thing statewide, and turn over to the Attorney General for further investigation the handful of cases that suggest criminal fraud.

“Right now, we are not getting any answers at all,” Scanlan said. “Frankly, the job just isn’t being done at this point. We’re doing the exercise, but we’re not getting any results.”

Brian Buonamano, the assistant attorney general in charge of election law enforcement, doesn’t dispute that claim. “Due to staffing issues, the DOJ has been unable to complete the identity verification investigations required under the current statute,” he said.

Deputy Attorney General Ann Rice told the House Election Law Committee in the hearing on HB 552 that none of this should come as a surprise. “We’ve been quite vocal about the fact that we do not have enough staff to do these investigations,” she said.

That doesn’t mean the Department of Justice thinks the Secretary of State should get the job. “This is a prosecutorial function — investigating criminal conduct — and is something that should be done by a law enforcement agency,” Rice said.

The Department of Justice supports Senate Bill 197, which would appropriate an additional $220,000 a year to the department “to enforce election and lobbying laws.”

The American Civil Liberties Union of New Hampshire also supports that approach. “This was a huge task that was simply dumped on the Attorney General’s Office without any additional appropriation,” said ACLU-NH Legal Director Gilles Bissonnette.

Cards collecting dust

With thousands of undeliverable postcards collecting dust at the Attorney General’s Office, there is some sense of urgency about resolving them one way or the other.

Rice said the existence of so many non-deliverable postcards does not prove anything.

“From what we’ve gotten, we don’t see a lot of evidence of voter fraud,” she said. “We see an inability to identify people. We can’t equate that with voter fraud. There are all kinds of reasons people don’t return cards. ... We’ve had one substantiated complaint, maybe two in the last four years, that we’ve been able to identify.”

Claims like that do little to sway a large number of people, about 25 percent of the population according to recent polls, who believe that voter fraud is widespread and influencing election results.

Bates says the problem is real, based on his experience as a supervisor of the checklist in his town of Windham. He told the Election Law Committee of a family that he knew had lived in Windham for years, but moved away.

Their adult daughter continued to use the defunct family address to vote regularly in Windham, even though she was living in Massachusetts, he said.

When asked by committee members if the case was ever prosecuted, he shook his head.

“The reason is because I understand the law,” Bates said in a later interview. “I may still report it anyway, but it’s far too easy with our existing statutes for somebody to basically talk their way out of this, because with the law as it currently stands all she has to do is say, ‘Yes my family sold our home but I never terminated my domicile in Windham, and I intend to move back there some day.’”

Bates said the changes the Legislature is considering in terms of defining “residency” will close such loopholes.

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