(Editor’s note: This story has been updated to include comments from the couple charged with the voting violations.)
A couple who split their time between New Hampshire and Massachusetts pled guilty on Monday to charges that they voted in both states during the November 2016 election, but they told NHPR they only did so to avoid prolonging an already onerous court battle with the state.
The New Hampshire Attorney General’s office indicted Grace and John S. Fleming in September 2018 on charges that they committed two election violations each: voting in more than one state and “wrongful voting,” which prohibits voting more than once for any one office.
The Flemings’ case was proceeding toward trial, with jury selection to begin on Monday, according to the AG’s office, but they instead reached a last-minute plea agreement. As a result of their guilty plea, the Flemings were fined $1,000 each, with a penalty assessment of $240, and lost their right to vote in New Hampshire. They were also sentenced to 60 days imprisonment, but that was suspended for one year on the condition of good behavior.
In an earlier interview shortly after the charges were announced last year, the couple told NHPR that the double voting was just an “honest mistake” — that they voted absentee in New Hampshire but forgot that they already mailed in their ballots when Election Day rolled around, and then voted again in-person in Massachusetts.
They also said they were unaware that they were the target of potential criminal prosecution until a reporter contacted them after the state publicly announced their case.
"It was an honest mistake due to medical issues," Grace Fleming, 72, told NHPR last year. "That's what it boils down to in a nutshell."
To this day, the couple stands by that story, despite their guilty pleas.
“In my heart, we did not vote double intentionally,” John Fleming, 73, told NHPR on Wednesday. “It was an honest mistake, but they didn’t see it that way. They wanted that victory, they got that victory, and I hope they all had a nice glass of wine at our expense.”
The Flemings were the first voters targeted for prosecution as a result of New Hampshire’s use of the now-defunct Interstate Voter Crosscheck Program, which was hailed as a way to detect possible cases of wrongful voting. More than 99 percent of the potential cases of double voting initially identified through the program in New Hampshire were false positives, as NHPR previously reported, and the Flemings were one of a small number of prosecutions the state ultimately pursued. The program has come under scrutiny for being both ineffective and insufficiently protective of voters' personal data, and was recently suspended.
Fleming, who identifies as an independent and says he voted for President Trump in 2016, says the state’s decision to bring felony charges against him and his wife seemed disproportionate with the nature of the underlying accusations, given that, as he puts it, they were cooperative and forthcoming with the state when first contacted about the situation.
“Our attorney said, yeah, they just wanted to make an example out of you,” John Fleming told NHPR. “Well, they made a fine example. They tarnished our reputation and destroyed our reputation. I've gotten hate mail. I've lost friends. It cost me over $12,000 in legal fees.”
The Flemings ultimately opted not to move forward fighting the charges because they did not want to risk the possibility that they could be sentenced to any period of incarceration, given their age and medical conditions. John Fleming said the whole experience has soured the couple’s view of New Hampshire state government and the electoral process more broadly.
“I’m done voting, period,” John Fleming said. “I don’t care what state it is. It’s not worth it. It’s not worth the aggravation I’ve had to deal with, the stress.”
The state does not always seek criminal prosecutions in wrongful voting cases; indeed, in many instances it has let people off with a civil penalty or even a stern warning. The attorney general’s office says each situation is handled on an individual basis, depending on the facts of the case.
Assistant Attorney General Nicholas Chong Yen, who oversees the state’s election law unit, says that the Flemings’ plea agreement required them to acknowledge that they “knowingly” violated voting laws.
Chong Yen said the state is still pursuing several alleged wrongful voting cases in the 2016 elections, but he also emphasized that these handful of cases are not indicative of a systemic problem, and so-called voter fraud remains rare.
“The Legislature has specified that this is a felony level offense, and I think that in doing so they have recognized the importance of ensuring that people are respecting each other’s Constitutional right to vote and honoring this very simple principle of one person, one vote,” Chong Yen said. “In that regard, with respect to the severity of the offense and the way the Legislature has classified it, it is a serious concern, but not one that is rampant throughout New Hampshire.”