NH Ballots Should Not Be Exempt from Public Records Law

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Author: Deborah Sumner


“People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” Chief Justice Warren Burger, Richmond Newspapers, Inc. v. VA, 448 U.S. 555, 572 (1980)

The legislature specifically exempted voted ballots from RSA 91-A in 2003. Repeal attempts in 2007, 2012 and 2014 failed.

Ballots (or ballot images) should be accessible for public review after election results are certified as they are in other states, including Florida, Ohio, Michigan, Texas, Vermont, Wisconsin, Wyoming, New York and Colorado. Stripped of this essential right and duty to KNOW our government was legitimately elected, we cannot claim to be a self-governing people.

Some relevant facts:

  1. The NH Constitution and RSA 659:63 mandate that “The Counting of Votes Shall be Public…” Government has a legal duty to protect our public oversight right and cannot interfere with our duty to do so.
  1. AccukVote computers, programmed and serviced by a private corporation, are  vulnerable to both intentional and unintentional error. They now potentially “count” 87.5% of all NH votes with NO public oversight.
  1. Federal law requires 22-month retention for ballots that include federal contests, with the clear intent SOMEONE might actually want to LOOK at them before they are destroyed.

As a pro se litigant, I expected the court would consider these facts and agree that the public’s right of access to voted ballots to ensure government’s legitimacy was more compelling than the attorney general’s argument. I was surprised that the Cheshire Superior Court judge disagreed and shocked when all five members of the NH Supreme Court did!

The court considered only these facts. 1) The legislature (as a co-equal branch of government) exempted ballots so this was a “political” decision, not one for the court to over rule 2) current law required public vote counts. Therefore, it said, the public had an alternative means to ensure transparent elections and public accountability.

Ironically, legislative history shows NO public discussion of why the legislature exempted ballots in 2003. The process violated the principle of openness and public accountability RSA 91-A aims to protect. But that didn’t matter to the court, either.


This problem now comes back to the court of public opinion and legislature to solve.

Here’s the basis of it:

For most people most of the time, exemptions specified in RSA 91-A:5 seem reasonable enough. If a citizen disagrees, the court can consider the arguments dealing with specific documents and decide. The government must show its interest in secrecy outweighs the public’s interest in disclosure.

But, under RSA 91-A:4, the legislature applies NO standard to  the “except as otherwise prohibited by statute…” section.

To correct this, any legislative exemption from public records should meet the same “strict scrutiny” standard the court applies when laws infringe on fundamental free speech, voting and self government rights.

To survive that analysis, any exemption must “be justified by a compelling governmental interest and must be necessary to the accomplishment of its legitimate purpose.” Akins v. Secretary of State, 154 N.H. 67 (2006)

Does the government’s interest in keeping the “facts” of our election secret outweigh the public’s interest in knowing reported results are accurate? Is it more compelling  than our right to free, fair elections and self-government? No, of course not.

State officials should work with informed citizens and town officials to develop reasonable guidelines for ballot review. The repeal can allow reimbursement of local costs through the state’s election fund (RSA 5:6-d).

The inalienable right of voters to determine the accuracy of official reporting through open inspection dates back to 1703 English Common Law.

“If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it,,,,” Ashby v. White 92 Eng Rep 126 (KB 1703)

Same battle, different day.

It’s time to move NH ballots from the “government secrets” category into the sunlight. We need to restore public oversight of our public elections and show the world that New Hampshire remains true to the vision of our founders as expressed in Part 1, Article 8 of our state constitution. We are a self-governing people; our elections and public officials are at all times accountable to us.

Deborah Sumner is a member of Right to Know New Hampshire and resident of Jaffrey.  She can be emailed at righttoknownh@gmail.com