Late into last week’s debate between President Donald Trump and former Vice President Joe Biden came a call to action from the president.
“I’m urging my supporters to go into the polls and watch very carefully because that’s what has to happen,” Trump said. “I am urging them to do it.”
The statement was part of an effort by the president to raise questions about the absentee voting process during COVID-19. The president had already claimed that an unprecedented pile of absentee ballots – especially those sent in by mail – could lead to a rigged election, so he said that voters should watch the process themselves.
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Trump’s words have alarmed election officials in some states who worry that the message could create conflict or even confrontations at the polls.
In New Hampshire, though, observing the voting process and counting of ballots is legal – to a point.
Voters in the Granite State are allowed to watch the action, as long as they keep a distance, stay out of the areas specified for voting, and don’t do or wear anything that could be considered campaigning.
But if they do anything that veers into the realm of intimidation or campaigning, they can be removed.
Under RSA 659:40, any person who threatens “force, violence, or any tactic of coercion or intimidation to knowingly induce or compel any other person to vote or refrain from voting” is guilty of a Class B felony.
Starting in the 2016 election, voters have been banned in New Hampshire from wearing hats, stickers, pins or clothing that advocate for a candidate on the ballot if they are within the polling place. In September, this rule was tested prominently when an Exeter voter opted to remove her anti-Trump T-shirt when asked to do so, even though Trump was not on the ballot.
Moreover, state law says that there must be a 10-foot wide corridor heading into the entrance of a polling place within which campaigning is not allowed.
To understand where voters may observe the process, it helps to first understand how polling places are arranged. Picture a school gymnasium. Near the entrance to the polling place – say, at the bleachers – there might be a check-in table, where voters first go to be officially tallied on the voter checklist. Beyond that table, on the basketball court, are the polling booths. Near the polling booths is the ballot box for towns, or ballot counting machine for cities and larger towns.
Everything inside the area with the polling booths is called “the rail.” It’s an archaic term that’s carried forward to 2020.
Observers are not allowed in the rail. Any space within the rail is off-limits to anyone except authorized poll workers and people in the act of voting.
But members of the public may stand in the areas outside of it. That means they can watch from afar the ballots being cast into the machine. It also means that they can watch the process of people getting their names checked on the checklist before they vote. And finally, it means that observers can watch the processing of absentee ballots.
Of course, polling places are only so big. If the number of election watchers exceeds the space, the moderator can request that they cycle in and out to reduce crowding.
One more complication: There are two types of election observers. There is the casual member of the public, who can stand or sit outside the rail. And then there are the party-appointed challengers. Each political party may appoint one person per polling place to sit close to the election process and challenge certain voters or votes. Challengers must have letters of appointment from their parties with them at the polls.
Those challengers get a little more access than members of the public. They still can’t sit inside the rail, but they are allowed to get close enough to hear the election workers calling the names of absentee voters to be crossed off the list. In a typical presidential election, parties appoint challengers in most or all of New Hampshire’s polling places – generally, they are there to observe and tally the voters and aid their get-out-the-vote efforts.
Anyone can technically challenge another voter – you do not need to be an official challenger to do so. Election officials may challenge a voter, as may the attorney general. Challenges can be made for any voter not qualified to vote, whether because of their age, citizenship or domicile.
But a challenge that’s based on information the challenger knows to be false counts as voter suppression in New Hampshire law – punishable by a Class B felony.
So what’s the process to watch on Election Day? It starts whenever a polling place opens. In New Hampshire, that must be 11 a.m. or earlier, although many towns and cities start much earlier.
When the polls open, walk-in voters are allowed in. People with absentee ballots that were not mailed in time may also bring them in. And anyone who wants to observe may also start doing so.
An hour after the polls are open, moderators may begin processing absentee ballots. They must make an announcement that they are doing this. At that point, they are allowed to open the outer envelope, find the voter’s name and check them off the list. They must also verify their affidavit and signature if they haven’t already done it.
The processing of absentee ballots is done behind the rail. But observers can watch it from afar.
Importantly, the absentee ballots may only be processed at this point; the votes cannot be actually counted before 7 p.m. – the time most polls close. Allowing them to be counted before that could open the process to charges of tampering, some argue. If officials saw that absentee ballots were tilting toward a particular candidate, for instance, they could theoretically rouse people to vote for the other candidate before the polls closed.
Instead, absentee ballots may not be opened until the polls close, when all ballots are counted. And because New Hampshire law stipulates that all absentee ballots must reach the town clerk by 5 p.m. on Election Day – no matter when they were mailed – no more can come in once the polls close either.
The result: Those wanting to watch the ballot-counting process after the polls close will be watching all the ballots be counted at once.
Another twist: This year, the ballot processing is not all on one day. Under a law passed by the Legislature this summer, cities and towns may use specific days in the week ahead of Election Day to “pre-process” the absentee ballots.
If a town moderator chooses to do that, he or she must give notice at least two days in advance of when and where. And that ballot pre-processing may also be observed by the public, from a distance.
Pre-processing sounds perhaps more involved than it is. The moderator is not allowed to count the votes ahead of Election Day. Nor can he or she even check the voters who have voted absentee off the voter checklist – a key action to prevent double voting. That must wait until Election Day.
Instead, during pre-processing, town officials may open the outer envelope of the absentee ballot and check to make sure that the voter has checked the correct checkboxes and that it is properly signed. This action is meant to help streamline the processing on Election Day, and allows officials to contact voters ahead of Nov. 3 if their affidavits were signed improperly.
To recap: Members of the public may observe every part of the election process, from the partial processing of absentee ballots in the days ahead of the election, to the in-person voting process and further processing of the absentee ballots during Election Day, to the counting process starting after polls close in the evening.
And because New Hampshire does not allow interruptions in counting the vote, that process could go especially late this time around.
So what to make of the president’s call to action Tuesday? In an interview, Deputy Secretary of State Dave Scanlan said that the Secretary of State’s office has not made specific accommodations for towns to deal with an influx of voters seeking to observe and potentially challenge the voting process.
But he encouraged moderators to make use of their local law enforcement as well as the Attorney General’s Office in the case of election observers who cross the line from observation into intimidation.
And for everyone else, there’s a hotline to the Attorney General’s Office: 1-866-868-3703.
These articles are being shared by partners in The Granite State News Collaborative. For more information visit collaborativenh.org.
