What's Happening With Windham's Election Audit?

Overall, the 2020 election went smoothly in New Hampshire — but there’s still one lingering question that hasn’t been answered: What happened with the vote totals in Windham’s state representative race? After a recount, an appeal to the Ballot Law Commission and months of discussions about who should investigate the issue, the state is one step closer to answering this question through its first post-election audit in recent memory — perhaps ever.

Here’s what you need to know about what's behind the audit and how it will work.

(If you want to tune into the audit, which began on May 11, click here for a live stream.)

This all revolves around a single legislative race in Windham, a town of about 14,000 people near the Massachusetts border.

On Election Night, Republicans swept all four of Windham’s state representative seats. One Democrat, Kristi St. Laurent, fell short by just 24 votes and requested a recount.

But during the recount, the margin between St. Laurent and the Republican candidates changed significantly. The vote totals for all of the Republican candidates in that race increased by about 300, while St. Laurent’s vote count decreased by nearly 100.

While the outcome of the race didn’t change — the four Republican victories from Election Day were upheld at the recount — the change in vote totals raised questions for lots of people from both parties. It’s not unusual to see shifts in vote totals during recounts, but even New Hampshire Secretary of State Bill Gardner has acknowledged that it’s rare to see discrepancies as large as the ones in the Windham race. Some people want to find out if there was an issue with the ballot-counting devices used in Windham, especially since those same aging devices are used statewide. Others think there could have simply been a mistake in the state’s recount.

Now, the audit is supposed to find out whether the town’s ballot counting machines functioned properly on Election Day. It’s also supposed to determine whether there were any differences between the number of ballots cast and counted in Windham on Election Day, and the number of ballots counted during the state’s recount.

In New Hampshire and lots of other states, candidates have to request a recount and can only do so if their race was decided within a certain margin. Here, recounts are available to candidates who win or lose by less than 20 percent of total votes cast in their race. Candidates can only request one recount, and the outcome of that recount is usually considered final — unless it’s overturned by the state Ballot Law Commission. New Hampshire’s recounts are done by hand and focus only on the ballots themselves, not on the ballot counting devices or other aspects of the election process. 

Audits, on the other hand, can take several different forms and aren’t necessarily tied to the outcome of a specific race — instead, the ultimate goal of audits, generally, is to confirm that the election system worked as it was supposed to. More than 34 other states routinely audit their election results, according to the National Conference on State Legislatures. New Hampshire does not have a system for post-election audits, though state officials are studying how they might work here in the future. 

One of the candidates in the state representative race at issue, Democrat Kristi St. Laurent, asked New Hampshire’s Ballot Law Commission to investigate the discrepancy between the vote counts in November. 

The Ballot Law Commission said it didn’t have the power to do that kind of investigation and instead asked the New Hampshire Attorney General’s office to look into it. But the attorney general’s office said it didn’t have the power to do an audit, either. 

In February, given the lack of action by state officials, Republican State Sen. Bob Giuda introduced legislation designed specifically to authorize an audit of the Windham results. That got unanimous bipartisan support and was signed into law by Gov. Sununu April 12 — officially greenlighting Windham’s audit.

Initially, the audit was only going to focus on the Windham state representative results. But the final plan calls for an audit of Windham’s votes for governor and U.S. senator, as well.

The law authorizing Windham’s audit calls for a three-person team of auditors: one selected by the Windham Board of Selectmen, one jointly selected by the Secretary of State and Attorney General, and one selected by the other two auditors.

Windham’s chosen auditor is Mark Lindeman with Verified Voting, which describes itself as “a non-partisan organization focused exclusively on the critical role technology plays in election administration.” Lindeman’s audit proposal is here. Lindeman told NHPR that his expertise is primarily in risk-limiting audits — a different kind of audit than the one planned in Windham — but he’s “very used to working with election officials and others to conduct accurate and well-controlled hand counts.”

The state’s chosen auditor is Harri Hursti, an election security expert and “ethical hacker” who is known for sounding alarms over security vulnerabilities in the U.S. voting systems. 

On Wednesday, the state announced that Lindeman and Hursti chose Philip Stark, a statistics professor at the University of Calfornia Berkley, as their third partner. As reported by NPR, Stark was part of a team behind the country’s first “risk-limiting” election audit in Colorado in 2017.

“He's just absolutely a top notch expert in election processes and someone who obviously wasn't involved directly in the New Hampshire election, so his neutrality is beyond question,” Lindeman said of Stark.

The details aren’t final yet, that’s up to the team of auditors to decide. But there are a few specific things the team has to do, according to the audit law:

• They need to do a hand count of the ballots cast in the Windham state representative race, the race for governor and the race for U.S. senator.
• They need to run all of Windham’s ballots from the 2020 general election through the same ballot counting devices used in Windham on Election Day.
• They need to determine how many ballots were cast and counted in Windham, and how many were received from the Secretary of State.

“Other than that, it's up to the forensic audit team to determine what other actions it believes it needs to do to determine whether the ballot counting devices operated in the manner that was expected for them to operate,” Associate Attorney General Anne Edwards said.
Lindeman, one of the auditors, said he’s focused on making sure whatever process his team ends up using is one the public can trust.

“It’s not about Mark Lindeman counting ballots,” he said, “it’s about creating procedures where people are transparently and reliably counting ballots in ways the world can see is fair.” 

 It will begin at 10 a.m. on May 11, according to a notice from the New Hampshire Attorney General's office. By law, the audit has to happen by May 27.

The audit team is supposed to produce a report on the “results of the audit and any resulting recommendations” within 45 days of completing the audit. And later, 45 days after receiving the audit team’s report, the Ballot Law Commission is supposed to produce its own report on “the performance of the ballot counting devices.”

The audit will happen at the Edward Cross Training Center in Pembroke. State officials say space will be limited, but the audit will be open to some in-person public observers and will also be live streamed to anyone else who’s not able to get inside.

Most of the public observer spots are being chosen in advance by either the town of Windham or the Secretary of State's office, but Secretary of State's office will also offer up 10 observer spots each day "by random drawing." More details on how to apply can be found here.

It’s not clear how much this will cost in total, but the state and the town of Windham will split the costs of the auditors: Windham will pay for its auditor, the state will pay for its auditor, and the two parties will split the cost of the third auditor.

The state’s also responsible for the “infrastructure” of the audit — so it could potentially have some additional expenses associated with the venue, security, live streaming and so on.

No, the law authorizing this audit is clear: “The results of the audit shall not alter the official results of the Rockingham County district 7 house of representatives race as determined by the ruling of the ballot law commission on November 25, 2020, upholding the recount of that race.”

While there’s no evidence of fraud or tampering in Windham’s election, conspiracy theorists trying to sow doubt in the legitimacy of the 2020 presidential election have latched onto this local legislative race as evidence that the election was compromised in some way. That’s despite a lack of evidence that the issue in Windham is in any way systemic. Right-wing websites and commentators, including some with close ties to former President Trump, have been drumming up outrage over Windham and the process surrounding the audit in recent weeks.

Credit Casey McDermott, NHPR

People from across the country have flooded Windham officials’ email inboxes, imploring them to choose a different auditor, Jovan Pulitzer, who as reported by the Arizona Mirror “claims to have invented technology that can detect fraudulent ballots by examining the folds in the paper and the markings in various elections.” And after their preferred auditor was not selected, the pushback continued: thousands of emails kept pouring into Windham, and hundreds of people showed up to a recent Windham town meeting to demand the board overturn its decision.

Now, one of the people leading local opposition efforts has suggested that they might try to raise money to conduct their own audit. But that’s unlikely.

Cast ballots are exempt from New Hampshire’s open records laws, and after a recount they’re sealed in storage. Edwards, with the attorney general’s office, pointed out that the law authorizing the Windham audit included a specific provision allowing Windham’s ballot boxes to be reopened — because otherwise, the law doesn’t allow anyone to touch the sealed ballots after they’re counted.

“If anybody wants to try to do any additional audit of this process afterwards, they're going to have to either get legislative approval or court approval to do that, because these ballot boxes will be sealed at the end of this process and won't be allowed to be opened," Edwards said.

No. Edwards said the New Hampshire Department of Justice did receive a few questions about the accuracy of ballot counting devices — specifically, from people who were concerned that some ballot counting devices reported higher margins of Democratic votes than other devices used at the same precinct. But after looking into the situation, Edwards said there was a simple explanation: In some communities, a single ballot counting device was set aside to handle absentee ballots, and because absentee ballots tended to trend Democratic in the 2020 election, those machines reported higher Democratic votes than other machines in the same community. It wasn’t the machines that were causing any kind of variation; it was just how the ballots were divided between different machines.

Overall, Edwards said, “we are confident that New Hampshire ran a very good election.”