CONCORD — Voters without proper identification would get a challenged ballot and could have their votes nullified up to 10 days after the election with legislation a state Senate panel considered Thursday.

Secretary of State David Scanlan said creating these different “affidavit” ballots would help deal with the erosion of confidence many have with election results.

“We have leaders in both political parties that say things that shake this confidence and instill doubt in the results,” Scanlan told the Senate Election Laws and Municipal Affairs Committee.

Sen. Bob Giuda, R-Warren, admitted his amended bill (SB 418) could result in a new winner being declared more than a week later in a very tight election if enough affidavit ballots were tossed out.

“That’s a possibility but I will state for the record the integrity of our elections is paramount,” Giuda said.

This provisional outcome wouldn’t damage the state’s first-in-the-nation primary reputation, he said.

“We need to do it first, we also need to do it best; that’s what New Hampshire is known for,” Giuda said.

At Thursday’s hearing, Scanlan said this amendment from Giuda made it clear these affidavit ballots would not be given to same-day registered voters who present proof of residency.

These challenged ballots would also be counted on Election Night.

"We made a lot of changes to the original bill but the goal remains the same to do our best to make sure only those eligible to vote are able to cast a ballot here," Giuda said.

“This is an attempt to close the loophole in our laws that allows anyone from anywhere in the U.S. to come into our state and have their votes counted in any state or federal election,” Giuda said.

Giuda pointed out 220 people who voted without identification in the 2020 election here never turned in proof they were eligible to vote.

Henry Klementowicz, a senior staff lawyer with the American Civil Liberties Union of New Hampshire, said the bill would be rejected in court as unconstitutional.

He said it could deny the right to vote for the homeless and those seeking U.S. citizenship.

“What are we doing is passing voting laws potentially throwing out thousands of votes,” Klementowicz said.

He said in the 2020 election, this would have affected 637 voters who cast ballots without an ID, and another 816 who lacked proof of citizenship.

Scanlan: Supreme Court should weigh in

In the 2016 election, Klementowicz said that Giuda has maintained 10 people were charged with voting twice. He questioned if any of them would have been caught with this new system.

Scanlan urged the Senate to consider tabling this bill and asking the Supreme Court to issue an advisory opinion on whether it was constitutional.

Liz Tantarelli, president of the New Hampshire League of Women Voters, said these changes are aimed at such a tiny amount of alleged voter fraud that it wasn’t worth this effort.

“The more complicated that gets, the harder it is for us to explain it in terms that people can understand,” Tantarelli said.

Senate Democratic Leader Donna Soucy of Manchester criticized another provision that those with affidavit ballots would be given a unique identification number and the moderator would keep a list of them by name.

In a very small town, disallowing such a ballot could end up revealing who the person voted for, Soucy said.

Giuda said that’s no reason against making this change.

“If you voted illegally, you are going to be prosecuted so your right to privacy doesn’t exist,” Giuda added.