Bristol is victorious in March town election challenge

By THOMAS P. CALDWELL, LACONIA DAILY SUN

BRISTOL — A Rockingham County Superior Court judge has ruled in the town’s favor in a lawsuit about election procedures last March.

Associate Justice David A. Anderson issued his decision on Monday, finding that, although town officials made mistakes in the handling of absentee ballots, discounting those votes would not have affected the outcome of the election. Additionally, an error in stating the number of vacancies for budget committee was easily corrected by established procedures.

The Bristol Board of Selectmen issued a statement saying members were pleased with the ruling to uphold the results of the 2017 town election.

“The Board has always believed that Bristol’s election officials undertake the best efforts to ensure a proper and fair election,” they wrote. “The facts in this case and the ruling justify that belief.”

The statement continues, “The Court’s decision stems from a long held legal tradition and principle that elections are a means to determine the will of the people. Ultimately, this decision is a victory for the voters and serves as validation of the efforts of each of those individuals in performing one of the most sacred rights in a democracy — voting.”

John Sellers, the plaintiff in the case, said, "This case was about the integrity of the vote and I may have lost the case, but Bristol voters won. Voting integrity and laws must be followed and are paramount in having fair elections."

Sellers, a former member of the Bristol Budget Committee, was running for one of two open positions on the Board of Selectmen in March. He came in third place in the election, with Rick Alpers garnering 238 votes, Donald Milbrand receiving 224, Sellers getting 208, and Frederick Eichman III receiving 143.

Following a recount that confirmed the results, Sellers filed a complaint in Grafton County Superior Court, challenging the election on several counts. (As one of many lawsuits filed after the March 14 snowstorm that prompted some towns to postpone elections this year, the case was transferred to Rockingham County.)

Most of Sellers’ arguments centered on 22 absentee ballots cast with irregularities: 16 did not have signed applications, five did not have signed affidavits, and on one set of documents, the signature on the application did not appear to be the same as that on the affidavit. Sellers noted that he lost to Milbrand by only 16 votes.

Sellers also challenged 19 absentee ballots as being invalid based on “early voting” — obtaining absentee ballots to avoid having to vote during a snowstorm. Absentee ballots can only be obtained under strict guidelines pertaining to work commitments, religious observances, or physical disabilities.

The other challenge was based on a ballot error that listed three budget committee positions when four vacancies existed. The error was due to a misprint in the previous year’s town report listing when members’ terms were due to expire: Milbrand’s term on the budget committee was listed as expiring in 2018, rather than 2017.

Sellers argued for a new election, noting that it also might change the result of a warrant article seeking to adopt the Official Ballot Act, RSA 40:13, commonly known as SB2. The article received 214 “yes” votes to 185 “no” votes, failing to achieve the two-thirds majority required to adopt the provisions.

The court dismissed the argument about the budget committee error, pointing out that state statutes provide a means to address such an oversight by allowing the budget committee to choose a member when the town has failed to fill the slot.

The issue of absentee ballots is governed by case law which set out that “the law in New Hampshire provides that in the absence of fraud, irregularities will not render an election invalid unless they affect the result of the election.”

While Sellers maintained that a 16-vote difference could give him a victory in the selectmen’s race, the court found that, “based on a review of the ballots, the results of the selectmen’s race would not change if all 75 absentee ballots were excluded.” The regular ballots would have given Milbrand an even greater margin over Sellers, Anderson wrote. “Indeed, Sellers is the candidate in the selectmen’s race who benefitted the most from the absentee ballots cast in the election.”

As to the argument about early voting, the court found that the town followed proper procedures by warning people about the requirements. “These individuals are also told that they are signing an affidavit, which requires them to ‘certify under the penalties of voter fraud’ that they meet one of the listed conditions for absentee voting eligibility.”

Anderson wrote, “New Hampshire law does not allow the town clerk to refuse to accept an absentee ballot from a registered voter who has executed the affidavit envelope.”

The judge also noted that the time to challenge an absentee ballot is “after the moderator publicly announces the name of the absentee voter” but before the ballot is removed from the envelope. “The reason for this is obvious: to avoid challenges motivated by how the voter voted.”