When New Hampshire Gov. Chris Sununu signed one of the strictest voter identification laws in the country last month, he said the timing was intentional: the law goes into effect 60 days after his signature, meaning the new rules would not be in place for the Nov. 5 general election. That was important, Sununu said, so as to not introduce potentially confusing new rules just weeks ahead of a major election.
“The biggest issue I always had was, I didn’t want to sign a bill that would impact this year’s election,” Sununu told reporters. “So that was the number one issue, which was taken care of.”
But with the timing of his pen stroke, Sununu has, indeed, apparently impacted this year’s elections. And in doing so, the new law has potentially sown the very confusion Sununu said he sought to avoid by waiting to enact the bill.
The new voter identification law, known as HB 1569, goes into effect on Nov. 11. It requires all first time voters in the state to show proof of their citizenship when registering, and also removes any exceptions for showing an identification at the polls on Election Day. Under the new law, people who fail to show ID won’t be able to cast a ballot.
But the law also makes a third change: It repeals the use of affidavit ballots, sometimes known as provisional ballots. Under New Hampshire's affidavit ballot process, which was rolled out in 2023, people who register at the polls for the first time without an identification must vote using tracked, marked ballots. Those voters are then given seven days to provide proof of their identity to the Secretary of State’s office. If they fail to do so, the office then instructs local election officials to deduct that individual's votes from final tallies. That person could also be investigated for voter fraud.
Under the timing of the new law recently signed by Sununu, the affidavit ballot system would still be in place for the Nov. 5 general election. But the use of affidavit ballots is officially repealed on Nov. 11 at the stroke of midnight, meaning those voters who completed an affidavit ballot won’t have a full seven days to mail in their proof of identity, as mandated by current law.
NHPR asked the state’s top election official, Secretary of State David Scanlan, if affidavit ballots will be in use for this year’s election, given this timing issue. In response, his office could only say that it is “reviewing the issue.” The office declined to say if it was aware of this potential complication before being asked about it by a reporter.
The New Hampshire Attorney General’s office also declined to comment on the issue Monday.
Concerns raised in legal filing
The issue of when or if affidavit ballots will be in use for this November’s election was first raised in a recent legal filing by the ACLU of New Hampshire. That group, along with the national and state chapter of the Democratic Party, filed lawsuits in 2023 alleging New Hampshire’s affidavit ballot process is unconstitutional, in part, because of privacy concerns.
In court paperwork filed last week, lawyers for the ACLU noted that “election officials will not have any legal authority under the laws challenged in this action to review affidavit ballots or discard their votes on November 12, 2024,” the end of the seven-day window for affidavit voters to provide proof of ID.
The state’s current election manual, which serves as a user guide for local election officials, makes no mention of the repeal of the affidavit ballot provisions.
But some local officials believe they have to continue to hand out affidavit ballots on Election Day, even if the seven-day window is now essentially unenforceable.
“All laws as of November 5, 2024 related to elections will be followed,” Daniel Healey, president of the New Hampshire City and Town Clerks Association and clerk for the city of Nashua, said in an email. “HB 1569 is not in effect until days later.”
Until the Secretary of State’s office clarifies how to interpret the conflicting calendars, it isn’t clear if affidavit ballots will be in use this year.
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Bill 'slow-walked' to Sununu's desk
Some of this confusion may have been avoided if Sununu had waited an additional few days to sign the law into effect. Republicans initially passed the bill in June, but GOP leadership in the state Senate essentially slow-walked the bill’s arrival on the governor’s desk until mid-September, making it one of the final bills of the legislative session to get an up or down decision from Sununu.
There have been far fewer affidavit ballots cast than most election-watchers were expecting when the law was enacted in 2023. Since going into effect, seven voters have completed an affidavit ballot after failing to show proof of their identity when registering, according to records released by the Secretary of State’s office. In all but two of those cases, the newly registered voters complied with the identification requirements and mailed in proof, meaning their votes were not erased from final tallies.
But in Manchester and in Hopkinton, the two voters who failed to return proof of their identity within the seven-day window saw their ballots deducted from vote totals. Emails obtained by NHPR through a right-to-know request show the Secretary of State’s office waited until the eighth day following the election before instructing the municipalities to deduct the votes.
In each of those cases, the identity of the voter — and their voting choices — were publicly available by aligning local voting rolls and verification letters received by the Secretary of State’s office. Opponents of the law, including the ACLU, consider that a major privacy flaw in the crafting of the original affidavit ballot law.
