New Hampshire's Ballot Law Commission has joined a bipartisan chorus calling for the state attorney general's office to review why the recount totals in a contested Windham State House race differed substantially from what was recorded at the polls on Election Night.
The move comes after the Windham Select Board made a similar plea to the attorney general’s office last week, citing concerns that residents might mistrust the local election process without an explanation for what’s behind the gap in results.
“The integrity of the election process is paramount to the citizens’ ability to exercise their constitutional rights,” the town’s legal counsel wrote in a Nov. 19 letter to Attorney General Gordon MacDonald. “The Town of Windham feels the recent recount process has left a ‘cloud’ over that integrity.”
As of Monday afternoon, the attorney general’s office said it was still reviewing the matter.
The recount for the Windham race, conducted by the Secretary of State’s office, didn’t alter the outcome: Four Republican candidates swept the historically conservative district in the first round of tallying done at the Windham polls on Nov. 3, and again after the votes were reviewed at the State Archives.
However, the margin of victory over the closest Democratic challenger, Kristi St. Laurent, was 400 votes higher than what was reported during the initial local counting process. On Election Night, St. Laurent fell short by just 24 votes. During the recount process, according to the Secretary of State’s records, she lost 99 votes and each of the Republican candidates gained roughly 300 votes apiece.
Small shifts in the vote totals are not uncommon during the recount process, but even Secretary of State Bill Gardner acknowledged during a Monday meeting of the Ballot Law Commission that a shift that large was unusual.
Gardner said it’s also important to keep in mind that voters use a variety of marks when filling out their choices — and sometimes, those marks aren’t picked up by the machines but do end up adding to candidates’ vote totals when reviewed during a hand count. During the recount process, Gardner said, “we err on the side of giving votes.”
Given the size of the shift during the recount, St. Laurent appealed to the Ballot Law Commission, suggesting that an error might have stemmed from the state’s recount procedure or the aging ballot counting devices initially used to tally the votes at the local level. St. Laurent also sought recourse from the commission because she said she was not allowed to inspect any of the absentee ballots rejected in Windham during the recount.
The Ballot Law Commission spent several hours deliberating that appeal on Monday — hearing testimony from St. Laurent, the Secretary of State’s office and others, as well as inspecting each of the 34 absentee ballots that were rejected — but ultimately decided to uphold the recount results and refer outstanding questions about the discrepancies in vote totals to the attorney general’s office.
Ballot Law Commission Chairman Brad Cook said the commission didn’t have the ability to offer the kind of remedy St. Laurent was seeking, but the attorney general’s office was best suited to handle a follow-up investigation.
“It is in their jurisdiction to look into any possible skullduggery in an election, which there wasn't any evidence of, and people were very careful not to allege, but it was hanging around there: Did something improper happen?” Cook said. “Nobody had any evidence anything improper happened. But when you have a swing this big, you get suspicious or they got suspicious.”
Neither the losing candidate in the Windham race nor anyone else asking for such an inquiry have alleged any intentional wrongdoing, and St. Laurent said she’s been careful not to sow unnecessary doubt in the election process. Rather, she said, she’s motivated by an interest in protecting public faith in the election process.
“I want answers more just to show that this doesn’t necessarily fit into the narrative that some have, in terms of the national elections, that there’s fraud and it can’t be trusted, because I think it can be trusted,” St. Laurent said. “I think there was just an error somewhere, and I just want to know where that error is so we can say, ‘this is what happened, and yes we can continue to trust the elections.’ ”
New Hampshire does not routinely conduct post-election audits, something done in most other states as a way to verify the accuracy of the vote count and shore up trust in the voting process. But a recent law could move the state closer to this system.
A Republican-sponsored law that took effect in July “requires the secretary of state to study the use of high speed, optical/digital scan ballot counting devices for use in conducting post-election audits of electronic ballot counting devices used in state and federal elections.”
The bill initially set a deadline of Nov. 1 for completion of that study, but Deputy Secretary of State Dave Scanlan says his office is conducting a test with two vendors at 9 a.m. on Nov. 30 at the State Archives. The Secretary of State's office will post more details on that event when it finalizes plans for live stream access, Scanlan said.
The Ballot Law Commission is responsible for approving the ballot counting devices used at New Hampshire polling places, but it has not authorized a new model in more than a decade. The only model currently permitted, the Accuvote optical scanner, is no longer being manufactured and, according to local election officials in a number of communities, is prone to paper jams and other technical problems. Election officials at the state and local level say it’s important to remember that, even if there are issues with the machines, every vote in New Hampshire has a paper trail.
Before the Ballot Law Commission wrapped up its work Monday, it also heard testimony from Gardner about New Hampshire’s record-breaking turnout in the 2020 elections and other steps the state took to ensure voters could participate despite the pandemic.
But before Gardner could get to that, Cook, a lifelong Republican, spoke up about efforts to undermine the electoral process coming from the highest echelons of United States government.
“I can’t let this session pass, and I know the Secretary of State wouldn’t say that,” Cook said, “without noting the horror I have had, and many have had, listening to and experiencing the lies, misinformation, accusations, baseless litigation and other attempts to hijack our elections this year.”
Cook said President Donald Trump’s “inability to accept the verdict of the American people” and “refusal to accept a peaceful transition” amounted to “the worst performance by any president or any other office holder I can recall in my lifetime.”
A few hours later, the Trump administration formally began the transition process to allow President-Elect Joe Biden to take office in January.