Voting day cancelled in New Hampshire?
A number of towns across the state of New Hampshire postponed local elections in the face of a major snowstorm. State law establishes local elections on the second Tuesday of March, or in 2017, March 14. As weather forecasters predicted a Nor’easter, local election officials across the state scratched their heads over whether to cancel or open the polls.
Schools close, that’s a no brainer for the most part. No one wants to endanger the kids.
But elections raise more issues. Legal issues. This is a legal blog so that’s the focus here. And no one, it’s to be hoped, would desire that the integrity of elections be tainted. So, is it as easy as “calling” the election and setting a make-up date?
Even the governor seemed to hedge his comments. But the Secretary of State’s office cautioned that when it comes to elections “there are no snow days”.
New Hampshire Election Law
So, what is the election law that applies when it snows election day?
At first blush it appears the New Hampshire statute on this, titled “Towns, Cities, Village Districts, and Unincorporated Places – Government of Town Meeting” would allow postponement:
In the event a weather emergency occurs on or before the date of a deliberative session or voting day of a meeting in a town, which the moderator reasonably believes may cause the roads to be hazardous or unsafe, the moderator may, up to 2 hours prior to the scheduled session, postpone and reschedule the deliberative session or voting day of the meeting to another reasonable date , place and time certain.
New Hampshire RSA 40:4 II
That New Hampshire statute refers to a weather emergency. But that law applies to deliberative sessions. The polls are not a deliberative session. The language also refers to “voting day of” a deliberative session. But that’s not the same as opening the polls for local election day.
The actual New Hampshire law on local election day says this:
“All towns shall hold an election annually for the election of town officers on the Second Tuesday in March …”
RSA 669:1 “Election Dates”
And that New Hampshire statute applying directly to local elections contains no weather emergency rescheduling provision. The date of the second Tuesday in March is established by statute. That law includes no language granting authority for changing it due to the weather. People who pay attention to such things say such an election has never been moved for weather or any other reason in history.
The issue is not whether the polls should have been closed because people think it would be a good idea. It may well be. The legal issue is what happens when voting is called off, as though it were a BINGO game or ham and bean supper, when the law offers no clear authority to do so.
A multi-decade Secretary of State who served governors on both sides of the political aisle as well as the attorney general answer the legal issue warning that polls are required to open, that the law does not grant authority to postpone elections. At the same time the New Hampshire Municipal Association is reported to have given the green light to local officials wanting to postpone local voting.
At last look, legislative leaders were looking at emergency measures that would assure the validity of elections even if held the wrong day. Contradictory interpretations of existing state laws present an open question as to what happens with voting day postponed.
Attorney Andrew D. Myers is a civil litigation attorney with offices located in North Andover, MA and Derry, NH. More info here.
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The statute refers to “a deliberative session or voting day of a meeting in a town”. Parsimony, not to mention common sense, would suggest that the latter is not merely duplicative, but rather refers to other election events. Strange indeed to construe Election Day as anything other than a “voting day”.
Well here’s the deal, the issue raised valid concerns and reasonable minds who have long been involved in elections in New Hampshire differed on the matter. As of this writing the New Hampshire legislature has taken corrective action and so this will likely not be a litigation nightmare. It is hoped that this is so.
I’d love to get your thoughts on this on-air discussion I had with former NH State Senator and 36-year town Moderator Peter Burling regarding this issue as exactly one year later we’re dealing with a repeat of the 2017 election day fiasco.
https://www.podbean.com/media/share/pb-smstg-8d39df
I’m posting your response to the blog article. We’ll see what thoughts come in. I do blog articles on legal issues, and this raises legal issues to the point that the legislature has and is looking at this. I’ll avoid political commentary but welcome responses. All the best.