By THOMAS P. CALDWELL, LACONIA DAILY SUN
CONCORD — Seeking to avoid a repeat of last year’s election-day confusion due to predictions of a powerful nor’easter on the way, Secretary of State William M. Gardner and Attorney General Gordon J. MacDonald have advised town officials this year that New Hampshire law does not allow a postponement of voting.
Conflicting advice from the New Hampshire Municipal Association last year resulted in 73 communities postponing their ballot voting. The association based its advice on RSA 40:4 II, which states, “in the event [of] a weather emergency ... the moderator may ... postpone and reschedule the deliberative session or voting day of the meeting.”
However, RSA 669, which governs elections, states, “All towns shall hold an election annually ... on the second Tuesday in March, except those towns which have adopted an alternative date under RSA 40:14 or those towns which have adopted the provisions of RSA 31:94-a and have, by majority vote at a previous town meeting, decided to elect officers on the second Tuesday in May.
Paragraph II adds, “Notwithstanding the provisions of paragraph I of this section, any town which has adopted a municipal charter ... may establish the second Tuesday in March, the second Tuesday in May, or the first Tuesday after the first Monday in November in odd-numbered years as the date for the election of town officers.”
To make sure there would be no legal questions as to the validity of votes taken at last year’s postponed meetings, the New Hampshire Legislature passed special legislation to ratify those votes, and this year there are competing bills to settle the matter for future years.
House Bill 1224 would affirm the moderator’s right to postpone business or deliberative sessions, but elections must take place on the second Tuesday in March.
Senate Bill 438 is a much more comprehensive bill that would revise the existing statutes to satisfy the Municipal Association’s concerns about competing definitions in various statutes, as well as making it clear that the Secretary of State holds the ultimate decision-making authority in most cases.
Until the House and Senate settle on the wording of a replacement bill, Gardner and MacDonald are relying on the wording of the election law which requires voting on the second Tuesday.
“Although town moderators may postpone deliberative sessions (in SB2 towns) and the business meetings of the town (in towns that have adopted RSA 39:2-a) due to weather emergencies, the law does not authorize local and state officials to postpone the town elections.”
They continued, “In the event that a town is scheduled to have both its town election and its business meeting ..., only the business meeting of the town may be postponed.”
The Attorney General’s Office will be operating its Election Day Hotline to answer questions at 866-868-3703, and will have roving teams assisting the towns in implementing the changes in same-day registration requirements established by Senate Bill 3, which established residency rights.
The Secretary of State’s memo to the towns said that new driver’s licenses that comply with the federal Real ID system are not proof of United States citizenship because foreigners with green cards and those in the country under certain refugee and asylum status can get those licenses.
The Senate approved its version of corrective language for town elections last Thursday and the bill now goes to the House for action.
As amended, the bill offers a statement of purpose to explain the intention: “The general court recognizes that advance notice and certainty of the date of an election has [sic] great value to our democracy. Meetings, for full participation, typically require a voter to be present for many hours. Elections, for full participation, require only a few minutes of the voter’s time.”
Therefore, “The general court finds that the circumstances that justify postponing an election are more limited than those that justify postponing a meeting. The postponement of elections in New Hampshire has been and should remain extraordinarily rare. ... Elections should be postponed only in extraordinary circumstances where there is a clear, imminent, and serious threat to public health and safety.”
The bill goes on to give the secretary of state the authority to postpone elections under specific circumstances: if the governor declares a state of emergency; or if the moderator (or town clerk if the moderator is unavailable) notifies the state that extreme weather or an imminent serious threat to public health or safety makes conducting the election impossible. In the latter case, if the threat extends to multiple jurisdictions, the secretary of state would notify the governor and request a declaration of a regional emergency, and consult with others officials as he or she deems necessary.
If the secretary of state fails to respond to a postponement request within four hours, the moderator may go ahead and postpone the election.
The bill also makes provisions for the moderator to continue duties beyond the original election date until a new election takes place, defined as being the Tuesday two weeks after the originally scheduled date. It requires any postponement to be posted at the election site, at the municipal offices, and on the website of the town, school district, or village district where the election was scheduled to occur.
The deadline for absentee ballots would be extended to the new election date.
The bill also makes provision for a fire or other disaster that might prevent voters from reaching the polls.
Importantly, the bill redefines “election” and “meeting” to clarify that elections include both choosing officers and taking care of ballot questions, while meetings are the traditional business sessions where voters discuss and act on warrant articles, as well as deliberative sessions in towns that have adopted the official ballot referendum form of government.