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Court Battle Could Alter N.H.'s Absentee Rules for November Election

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Hillsborough County Superior Court Judge William Delker heard arguments in the case during a virtual hearing on Sept. 25.

The November election is front and center on a lot of people's minds right now — not least of all because President Trump has recently declined to commit to a peaceful transition of power if he loses the election. He has also, without evidence, questioned the legitimacy of the election itself.

But here in New Hampshire, there's another battle playing out in court that could have ramifications for how and when voters cast their ballots in November, and how those ballots are counted.

Morning Edition Host Rick Ganley spoke with NHPR's Casey McDermott about recent developments in the case and what voters should understand as they prepare to vote in the general election.

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Rick Ganley: There's been a lot of legal fighting over voting here in New Hampshire the last few years, so it can be kind of hard to keep track. Just to start, can you explain what this lawsuit is about?

Casey McDermott: You're right. There have been a lot of court cases. There have been ones over voter registration rules, voter residency laws, also absentee balloting, accessible voting and more.

This case comes from the American Federation of Teachers and a plaintiff in Concord. It was filed in August, and it's actually part of a whole set of about a dozen other similar cases playing out across the country. And those cases, like this one, are backed by a prominent Democratic law firm called Perkins Coie. That same law firm, we should note, has been involved in some other voting lawsuits in New Hampshire in the last few years. But basically, to the case itself, it really focuses on New Hampshire's COVID-19 voting rules and especially the absentee voting rules.

Rick Ganley: Like what?

Casey McDermott: Well, there's the absentee ballot deadline. So, in New Hampshire, if you're mailing your ballot, for example, it has to arrive to your local clerk by 5 p.m. on Election Day. That's not the case in some other states, and the lawsuit would force the state to count ballots that arrive later as long as they're postmarked by Election Day. There's also the issue of postage. New Hampshire does not prepay postage for absentee ballots, even though that was a recommendation from that bipartisan advisory panel that the state set up earlier this year to help figure out how to deal with COVID-19 in its elections. This lawsuit would force the state to prepay postage for absentee ballots. And the lawsuit also asks for some other things. It wants to let voters return ballots in drop boxes when those drop boxes are not manned by a local election official, to make absentee voter registration forms more readily available online and to strike down a requirement that someone registering to vote absentee needs to have a witness.

Rick Ganley: Okay, so they're really looking to broaden the rules for how easy it is to request and then return absentee ballots. What's the state's response?

Casey McDermott: So, what's interesting here is that it's not just state attorneys that are trying to keep things as they are. Lawyers for President Trump's re-election campaign and the Republican National Committee are also involved in this case on the side of the state. And their position is that New Hampshire has already made plenty of accommodations to let people vote safely and securely during COVID-19. And they say that making any of the changes that the lawsuit proposes right now would cause too much confusion and are really just coming too close to the election.

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Rick Ganley: We are getting close. How likely is it that this could change things for November?

Casey McDermott: Honestly, at this point, it's hard to say. You know, there was a big hearing in the case yesterday (Thursday, Sept. 25) virtually, and the judge presiding over it said he'd try to issue a decision as soon as possible, keeping in mind the upcoming election.

During the hearing, it was interesting to kind of hear the kind of questions that the judge was asking. You see this a lot in voting lawsuits, but he kept coming back to this question of how do you balance the state's interest in keeping things as they are — keeping rules in place that are designed to prevent fraud or to help election officials process ballots in a timely manner, for example — how do you balance that with the interest of voters who are trying to cast a ballot without too much obstacles? And then on top of that, the judge also kind of acknowledged the obvious fact that we're in a unique moment with the pandemic and the rules that might have been reasonable in ordinary times, he questioned, would those create more of a challenge right now?

Rick Ganley: So what would it mean to most New Hampshire voters? You know, what does it mean for the average voter here in the state?

Casey McDermott: So, first of all, what's important to note is that this lawsuit doesn't put anything on hold. So you can still register to vote. You can still cast your absentee ballot. In fact, absentee ballots went out to local election offices across the state this week. So if you already requested one, it should be on its way to you soon. If you still need to register or request a ballot, you can still do that. We have instructions on how to handle all of that at NHPR.org.

But the other thing that we're actually trying to figure out here at NHPR, separate from this lawsuit, is how much of a problem some of the issues that were brought up in the lawsuit actually are for voters. So like the postmark deadline, absentee ballot paperwork rules — we don't have a good handle on how many ballots were rejected during the state primary in September for different reasons like that. But we are asking the state for that data and we hope to have that soon, at the very least, so that we can help voters try to avoid those kind of potential problems before November, regardless of what happens in court.

For more on how to register and vote in New Hampshire during COVID-19, check out NHPR's elections guide here. If you have other questions about voting or want to share your perspective on casting a ballot, we invite you to get in touch with us at elections@nhpr.org.

For many radio listeners throughout New Hampshire, Rick Ganley is the first voice they hear each weekday morning, bringing them up to speed on news developments overnight and starting their day off with the latest information.
Casey McDermott is an editor and reporter at New Hampshire Public Radio, where she works with colleagues across the newsroom to deepen the station’s accountability coverage, data journalism and audience engagement across platforms.

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