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Ballot Folds, Not Fraud, Likely Culprit At Center of Windham Election Audit. Now What?

This GIF shows officials handling boxes of Windham's ballots at the end of the audit
doj.nh.gov
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Windham's ballots were turned back over to the state at the end of the audit. Harri Hursti, one of the auditors, said New Hampshire's "excellent, tight chain of custody" of its paper ballots makes its elections more secure.

After spending the last three weeks carefully recounting ballots, inspecting the vote counting machines and otherwise examining discrepancies in the 2020 election results for the town of Windham, auditors haven’t found any evidence of fraud or other intentional tampering. 

Instead, they’ve settled on a more mundane explanation for why the results of a hand recount of Windham’s state representative race veered so far from the results tallied at the polls on Election Night. Here’s what they learned, and what happens next.

(Just catching up on this story and need some more background information? Check out this overview of the problems in Windham and how this audit got started.)

So what caused the problems with Windham's vote totals?

Windham’s problems hinge largely, it seems, on folds in its absentee ballots. When ballots were folded to fit inside official envelopes provided by the state, the crease ran through the bubble for Democratic candidate Kristi St. Laurent. And when those ballots were fed through a counting machine at the polls, the machines read the folds on some of them as votes for St. Laurent. That’s why she appeared to have more votes on Election Night than when her race was recounted by hand a week later.

A microscopic photo shows a crease through a vote bubble on a ballot.
An update from the auditors on their fold hypothesis.

But the folds aren’t the only factor. There’s also the fact that humans and machines can read the same marks, on the same ballot, very differently. If a voter didn’t fill in the bubble for their preferred candidate correctly, a machine might not interpret that as a valid vote — but a person looking at the same ballot would likely catch that mark and recognize the voter’s intent. And if a voter appeared to fill in too many bubbles — or, if the machine thought a voter filled in too many bubbles, because one of the bubbles had a fold line through it — it could also throw off the machine count.

In Windham’s state representative race, voters could choose up to four candidates. If it appears the voter has chosen more than the allotted number of candidates, New Hampshire’s AccuVote ballot-counting machines log those as “over-votes.” In some states, machines are programmed to reject over-voted ballots, but not New Hampshire — instead, the results of an over-voted race show up as “blanks” in the results printed from the machine. That could help to explain why the winning Republican state representative candidates in Windham appeared to have so many fewer votes on Election Night than they did during the state’s hand recount. 

Dust build-up inside one of the machines might have also made it harder for the devices to clearly discern what was a fold and what was an actual vote. But the auditors say they need to spend more time looking at that issue before they draw any big conclusions.

As Windham auditor and election security expert Harri Hursti explained it, the situation stemmed not from one single mistake but instead from a “conspiracy of coincidences” — a term he said he borrowed from aviation crash investigations.

“When I look at how many things happened to create this situation, how many things needed to be a certain way, it’s a lot,” Hursti said.

How did the auditors identify those problems?

A big turning point came after the auditors, and a few dozen local election officials who volunteered to help out, conducted their own hand recount of Windham’s ballots. Their results matched up with the results of the Secretary of State’s hand recount last November, suggesting that there was a problem with how the votes were originally counted on Election Night. As part of the hand recount, auditors also looked at Windham’s votes for governor and U.S. Senate to find out if the counting problems were isolated to the state representative race or more widespread. While there was a little bit of variation, as is expected during any recount, those results didn’t differ from the machine counts as widely as the results for the state representative race.

A tweet reads: "6779 ballots hand tabulated so far, about 2/3. Done for the night. Sleep well, ballots and tabulators and envelopes and forms and tally sheets and scan batch sheets and flag sheets and flag logs and document cameras and … "
One of many tweets from the audit team about their progress.

Auditors also took a range of other steps to sort out what was behind the problems in the Windham state representative race. They ran Windham’s general election ballots through all four of the voting machines used in the town last November, and those results differed from both hand counts. During the machine recount, the state representative race had a higher number of “blank” votes than other races, suggesting the problem was isolated to how the machine read that part of the ballot.

Once they narrowed in on their “fold hypothesis,” auditors also ran folded test ballots through the machines to prove that the devices misread creases as filled-in ovals. Hursti — an “ethical hackerwho said he owns 24 of the same kind of machines used in Windham — also dissected the town’s ballot counting machines, inspecting the memory cards and other parts for signs of tampering or irregularities. 

Along the way, the auditors also tried to keep the process as transparent as possible. A livestream of the audit site ran around the clock, even after the facility emptied out each day. Photos of the audit materials, ballots and other records were posted each day on a state website for anyone to view. Auditors responded directly to detailed, prolonged questions from in-person observers, including those who voiced skepticism about their integrity and methods. They also set up a Twitter account where they posted regular updates and didn’t shy away from responding directly to misinformation or conspiracy theories about their work.

“We recognized immediately, in the beginning, that there's so much misinformation, disinformation, malinformation, malicious lies which are spread,” Hursti said, and the Twitter account was one attempt to rebut that misinformation with facts straight from the source.

Were these known issues before the audit?

Some concerns about folded absentee ballots came up last summer as part of a panel to plan for changes in voting procedures during the pandemic. Local election officials voiced concerns that folded ballots would jam the machines, slowing down the vote-counting process. A representative from the company that supplies New Hampshire’s vote-counting machines also told the committee that folded ballots are more likely to be misread, according to meeting minutes, and specifically noted that “creases can cause shadowing and result in misreading/rejection.”

An official from the Secretary of State’s office also acknowledged that the ballots that are bent or folded could be difficult to process, according to meeting minutes, and said “it’s important to try to flatten them out as much as possible so they’re smoothly processed by the machine.” But the Secretary of State’s office also cautioned that the cost of mailing absentee ballots flat, in larger envelopes, could be more expensive.

Aside from the problems with the ballot creases, the issue in Windham might have been avoided if New Hampshire’s vote-counting machines were programmed to reject over-voted ballots, as they are in other states. Several people have tried to change New Hampshire’s election laws to require the machines to more clearly flag over-voted ballots, but those proposals have run into opposition from the Secretary of State’s office. In a recent hearing on the issue, Deputy Secretary of State Dave Scanlan said the state tries to educate voters on how to properly mark their ballots, and returning a ballot to the voter after it has been fed into the machine could compromise voter privacy. While it’s hard to say for certain whether this would have caught the issue, it might have at least flagged the Windham ballots where a crease was misinterpreted by the machine as an extra vote. 

It’s also no secret that New Hampshire’s ballot counting machines are old — so old, in fact, they are no longer being manufactured — and prone to occasional technical problems. Local election officials have been urging state officials to upgrade the equipment for years, and there are plans to do so at some point, though the exact timing isn’t clear. The Ballot Law Commission will have final approval, and it’s likely that they’ll use the Windham audit to inform their decision on the next generation of the state’s vote counting equipment.

What happens next?

The auditors still have some more work to do to finish their investigation, but they’re supposed to produce a public report on their findings and recommendations on how to improve New Hampshire’s vote counting processes in the future. That report is due by July 11.

From there, two more reports are also required, according to the law that authorized the audit: The Secretary of State and Attorney General need to issue their own reports on the audit results “and any resulting recommendations,” and the Ballot Law Commission (which is responsible for approving vote-counting machines) needs to issue its own report on “the performance of the ballot counting devices.” Both of those reports are due by the end of August.

If the folds on absentee ballots were part of the problem, are there plans to look for similar issues in other communities?

Once they zeroed in on the folding issue in Windham, the audit team did request data from the Secretary of State’s office that could point to similar rates of “blank” votes from the machine counts in other towns. They were told that information is sealed up with the votes, and a court order or legislative action would be required to unseal it, Hursti said.

“Looking into all the circumstances that were required for this anomaly to take place, it seems to be very, very far fetched to see that this would be in a meaningful way repeating,” Hursti said, emphasizing that the anomaly found in Windham didn’t alter the winners of the election, only the vote margins.

Kristi St. Laurent, the Windham state representative candidate whose recount request kicked off the process that led to the audit, said she doesn’t think a full statewide audit seems necessary. 

“There was a whole bunch of things that came together to give us the effect that we saw,” she said, “so it would really take that range of circumstances being directly in place in other towns to really have impacted an election.”

Still, she said, it might not be a bad idea for someone to take a closer look into whether ballot creases caused similar issues in other towns that use the same vote counting machines.

“Just ask our town clerks — I trust our town clerks — ‘Did you see a similar situation?’ ” St. Laurent said. 

What about future elections, will New Hampshire audit its results more regularly?

Possibly. There have been lots of attempts to bring post-election audits to New Hampshire, or to at least change the state’s election laws to make it easier to check the accuracy of the ballot counting machines, but most of those have faltered at the State House. Legislators did ask the Secretary of State to study how post-election audits would work in New Hampshire last year, before the Windham incident surfaced. 

Hursti, one of the Windham auditors, said he’s been talking to the Secretary of State’s office for several years about how to bring risk-limiting audits to New Hampshire and believes they’re essential to improving public confidence in the election results. Mark Lindeman, one of the other outside auditors reviewing Windham’s results, said it’s likely the audit team’s final recommendations will touch on the critical role that audits can play.

“I will be cautious in the recommendations we make, but that's absolutely, in my mind, essential,” Lindeman said. “Basically, the more you look, the more you'll find — and the more likely you are to detect anomalies like this before they become crises.”

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