By Amanda Palmeira
The First Amendment protects the press and helps inform citizens before they cast their votes. But does the First Amendment also protect the right of New Hampshire residents to inspect those ballots after they are cast?
New Hampshire has an explicit exemption to its Right to Know law that prevents the public from inspecting cast votes. Passed in 2003, HB 627 created this exemption through an amendment to the main bill, which dealt with voter registration procedures – not public records. The amendment was added after a public hearing on the bill that occurred on March 3, 2003. (See HB 627-FN Bill History, page 55, 89, and Docket of HB 627.)
New Hampshire citizen Deborah Sumner wants to eliminate this exemption. She hopes to overturn a 2012 New Hampshire Superior Court decision that upheld the exemption by concluding that the opening of ballots to the public would compromise the privacy of those who voted. Sumner argues that the court did not allow admission of evidence that would have shown that it is virtually impossible to identify a voter by inspecting a ballot alone. According to Sumner, this is because New Hampshire — as well as Maine, Vermont, Massachusetts and Connecticut — uses the AccuVote-OS system, a version of electronic voting.
“Once your ballot is with other ballots, there’s no way to show whose ballot it is,” Sumner said. The only way one could see a ballot and know who cast it, she added, is if there is only one absentee voter registered and only one absentee vote submitted. Therefore, a claim of privacy is not a reasonable excuse to keep the ballots exempt from public record, Sumner said.
A 2007 survey by the National Association of Secretaries of State found that in only five states can cast ballots be accessed by the public: Florida, Idaho, Louisiana, Maryland and Wisconsin. (Download the survey here.) This access, however, often comes with limitations, such as allowing access only after a recount period has ended, or requiring that an election official must be present at all times.
The need to manually inspect ballots as a way to confirm the accuracy of election results is not merely theoretical. Such access came into play during the 2000 presidential election and the Florida-voting debacle. Florida newspapers utilized the state’s sunshine laws to review the ballots themselves and inform their readers of the intricacies and difficulties of accurately counting votes. For more discussion about the 2000 presidential election and the inspection of ballots, see A Vote of Confidence? Florida’s Public Records Law and the 2000 Presidential Election Recounts: Could It Happen in Any Other State? 13 U. Fla. J.L. & Pub. Pol’y 135 (2001).
The Voting Systems Technology Assessment Advisory Board (VSTAAB) reported in 2006 that there were several vulnerabilities of the AccuVote-OS system used in New Hampshire – including insecurity of the memory cards that hold the votes:
“We determined that anyone who has access to a memory card of the AV-OS, and can tamper it (i.e. modify its contents), and can have the modified cards used in a voting machine during election, can indeed modify the election results from that machine in a number of ways. The fact that the results are incorrect cannot be detected except by a recount of the original paper ballot.”
Bev Harris, executive director of the non-profit election transparency organization Black Box Voting, supported previous legislative attempts in New Hampshire to repeal the exemption of ballots from the public records law.
“Elections without public accountability are nothing more than vote-counting in the dark, controlled by a government in the act of choosing itself, a voter act of faith or obedience, perhaps, but in no way a path to legitimate governance,” Harris wrote in a letter to the New Hampshire Election Law Committee last year. “The government can never be sole verifier of its own information.”
Allowing citizen access to cast ballots, even with a caveat of official supervision, is a necessary step in voting laws in New Hampshire. The transition to electronic voting was a necessary step to accommodate more voters, and now, to preserve the rights of voters and the voting system the country relies upon, ballots should be reviewable by citizens and the press.
Privacy rights of voters is not something to be disregarded – but the limited instances in which such privacy may be in danger can easily be mitigated. Sumner said that other states in which ballots are public record have dealt with the absentee-ballot issue by having non-absentee voters volunteer to use the absentee-voter ballot. This, she said, remedies the danger completely.
Sumner did recognize that there would be a burden on the state to manage the public’s access, such as determining who would supervise the process. The inconvenience though is arguably worth the peace of mind that New Hampshire citizens would receive. Regardless, if voter privacy is the only concern preventing inspection of cast ballots, perhaps it’s time to reconsider whether that privacy would actually be violated.
In other words, taking a quote from the character Donna Moss in Aaron Sorkin’s political drama “The West Wing”: “In a free society, you don’t need a reason to make something legal. You need a reason to make it illegal.”
Amanda is a rising second-year law student at New England Law | Boston and a summer intern for NEFAC. She can be emailed at amanda.palmeira@nesl.edu.
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NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include: The Robertson Foundation, The Providence Journal Charitable Foundation, and Boston University.