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First affidavit ballot was cast in NH last month, and then was pulled from final vote tally

voting in Concord NH
Cori Princell
/
NHPR
(File photo)

On the day of Manchester’s city election last month, a person entered the Ward 5 polling location and registered to vote without showing a valid photo ID.

In the past, that would-be voter could have signed a form attesting to their eligibility, and then cast a ballot. That ballot would then have been handled and counted just like every other ballot cast in the city that day.

But under a Republican-backed law that took effect earlier this year, the person, who was registering to vote in New Hampshire for the first time, was instead given a numbered, trackable ballot — known as an “affidavit ballot” — to cast their vote. They were also provided a pre-addressed stamped envelope with instructions on how to submit proof of their identity to the Secretary of State’s office.

When the prospective Manchester voter failed to provide that proof within seven days, as required by the new law, local election officials pulled that person’s ballot — marked as “Affidavit Ballot #1” — out of storage and subtracted their votes from the official totals, as though they never voted in the first place.

The process, laid out in a series of emails and documents obtained by NHPR through a Right-to-Know request, marks the first time a trackable ballot has been used in modern state history.

The records obtained by NHPR also show that, while qualified voters have a right to keep their ballots private under state law, the voting choices of those who use an affidavit ballot are less protected. In the Manchester case, certain city and state election officials know the name of the person who completed Affidavit Ballot #1. And since only a single vote was deducted from vote totals, it is possible to track which candidates that person supported on Election Day.

(The Secretary of State's office redacted the name, age and address listed on the affidavit ballot before providing the records to NHPR.)

While this person was deemed unqualified to vote in the Manchester municipal election because they failed to provide proof of their identification, it isn’t clear if they otherwise would be eligible to vote in future New Hampshire elections. The New Hampshire Attorney General’s office confirmed it is investigating the person for possible voter fraud charges.

Communications between election officials show that this first-ever use of an affidavit ballot has raised questions about how the new law will impact other election processes, including recounts and updates to the official voter checklist.

This also comes as a lawsuit seeking to overturn the new affidavit ballot law is headed to the New Hampshire Supreme Court.

How the process worked in Manchester

Public records show the voter in Manchester’s Ward 5 who’s now facing scrutiny provided local election workers with their name, a domicile address and their date of birth on a newly created form known as a “affidavit ballot verification letter.”

In addition to the letter, the voter was given an envelope and instructions on how to submit valid proof of eligibility to New Hampshire Secretary of State David Scanlan’s office.

The Affidavit Ballot Verification Letter was completed at the polling place. The would-be voter, however, did not mail in proof of their eligibility to vote in the state.
NH Secretary of State's Office
The Affidavit Ballot Verification Letter was completed at the polling place. The would-be voter, however, did not mail in proof of their eligibility to vote in the state.

On Nov. 8 — one day after the municipal election — Manchester’s Assistant City Clerk JoAnn Ferruolo emailed the Secretary of State’s office, informing them that an affidavit ballot was used in the city’s election.

“This is the first actual case of Affidavit Ballot use, so we are all working through this,” Orville “Bud” Fitch, an attorney for the Secretary of State’s office, wrote to the city of Manchester a week later. In a second email sent later that day, Fitch told Manchester officials that “questions and suggestions are welcome, as we will learn from this as we prepare for the Presidential Primary.”

One day later, on Nov. 15, Deputy Secretary of State Erin Hennessey notified the city that her office had not received any materials from “affidavit voter #1” and said Manchester should update its final election results by pulling that voter’s ballot from its totals.

The city updated its election results on Nov. 20, according to a ballot tracking sheet provided to NHPR. After the revisions, mayoral candidate Kevin Cavanaugh lost one vote in Ward 5, from 393 votes to 392. Alderman candidate Joseph Kelly Levasseur also lost one vote, from 322 to 321. Vote totals for the local school board and other offices were also modified.

None of this fall’s elections in Manchester were decided by a single vote, meaning no race outcomes were impacted after the affidavit voter’s ballot was removed.

More than two weeks after Election Day, the city of Manchester updated its vote tallies to reflect the retracted affidavit vote.
NH Secretary of State
More than two weeks after Election Day, the city of Manchester updated its vote tallies to reflect the retracted affidavit vote.

On Dec. 5, as required by law, Secretary of State Dave Scanlan submitted a letter to New Hampshire Attorney General John Formella that included the person’s name for investigation into possible wrongful voting.

The timeline of that ongoing investigation isn’t clear. The Department of Justice recently spent more than 10 months investigating voter fraud allegations against former state Rep. Troy Merner, who is accused of continuing to serve in the Legislature after moving out of his district and illegally voting in his previous hometown. Merner, a Republican, has denied the allegations.

Like other cases of alleged voter fraud in New Hampshire, how Merner cast his votes remains unknown, and will likely stay that way. But if the Attorney General does bring criminal charges against the Manchester voter who used an affidavit ballot, that person’s voting preferences will become public record.

How ‘affidavit ballots’ became law

Republicans in the New Hampshire Legislature passed Senate Bill 418 last year with no backing from Democrats. Supporters argued that the measure would ensure that voters who registered at the polls for the first time in New Hampshire on Election Day were in fact qualified to vote in the state. Gov. Chris Sununu signed the law after initially saying he opposed the concept.

Under the law, first-time New Hampshire voters who lack valid ID are given seven days to mail necessary documents to the Secretary of State’s office to prove their eligibility. If that paperwork is not received in time, the city or town is notified and required to amend its final election results.

Prior to 2023, new voters who didn’t show proper identification were allowed to cast a ballot if they signed an affidavit swearing to their eligibility to vote in New Hampshire, with potential legal penalties and fines for fraudulent submissions. Even if criminal charges were subsequently filed for wrongful voting, those votes would remain in final tallies, since there was no way to know who the ineligible voter had cast a ballot for.

Democrats and voting rights groups opposed the affidavit ballot law, arguing it would put an unnecessary burden on voters. One lawmaker, during a debate on the House floor, called it “a solution in search of a problem.”

Now that the law has been applied for the first time, House Election Law Committee Chairman Rep. Ross Berry, a Republican from Manchester, said it is working as he hoped.

“The old system wasn't a system,” he said.

Berry said people should not be allowed to “Boy Scout honor” their way into casting a ballot in the state, without prompting additional review of their eligibility.

He said he also believes the majority of Granite Staters back the extra level of scrutiny on people who show up to register at the polls.

“I think reasonable and rational people believe that when you are registering to vote on Election Day, you need to show a form of ID,” he said.

Measure sparked immediate lawsuit

Days after the governor signed the bill into law, a coalition of voting rights and progressive groups filed lawsuits challenging its constitutionality. Those were ultimately joined into a single case.

The suits argued that the law made it more difficult for new registrants to vote, and that it would delay the reporting of election results. The ACLU of New Hampshire, which represented some of the plaintiffs, said the law could also compromise the state Constitution’s privacy protections, since certain election officials may be able to see affidavit voters’ electoral choices.

But in November, Merrimack Superior Court Judge Charles Temple dismissed that lawsuit. He ruled that the plaintiffs lacked standing because they were all already registered voters — and therefore not impacted by the new policies — and they failed to show how the law financially burdened them as taxpayers.

But the judge did not rule on the constitutionality of affidavit ballots.

Earlier this month, the ACLU filed an appeal with the New Hampshire Supreme Court, which hasn’t yet scheduled oral arguments.

Under state law, the Attorney General will now investigate the person who completed the affidavit ballot for possible wrongful voting.
NH Secretary of State's office
Under state law, the Attorney General will now investigate the person who completed the affidavit ballot for possible wrongful voting.

McKenzie St. Germain, with the New Hampshire Campaign for Voting Rights — a coalition of progressive groups that advocate on voting issues — said the situation in Manchester is troubling. She raised concerns that the affidavit voter’s privacy has been violated, since they were the only one who cast an affidavit ballot in their ward. Multiple officials could now piece together who they voted for, she said, and others at the polling place may have seen that person request the affidavit ballot.

St. Germain said the person may not have been able to provide an identification for a valid reason, but may still be entitled to vote in the state.

“Voters who are domiciled in New Hampshire, are citizens who live here, have a right to cast their vote and have the right to a private ballot,” she said.

Todd started as a news correspondent with NHPR in 2009. He spent nearly a decade in the non-profit world, working with international development agencies and anti-poverty groups. He holds a master’s degree in public administration from Columbia University.