New Hampshire’s top election official is ordering cities and towns to use affidavit ballots for certain new voters during this November’s election, despite a conflicting law recently signed by Gov. Chris Sununu that repeals the use of such ballots.
In a letter released Tuesday, Secretary of State David Scanlan said that nothing in the new law, known as HB 1569, “indicates any legislative intent that the law's voter registration and election-day procedures were intended to affect the November 5, 2024 State General Election in any way.”
Among other provisions, HB 1569 ends the use of affidavit ballots, which are used by first-time registrants who don’t show an identification at the polls. Those voters are then given seven days to mail in proof of their identity. If they fail to do so, their votes are deducted from final totals and they could be investigated for voter fraud.
The new law goes into effect at midnight on Nov. 11, which is before the seven-day window for submitting documentation expires on Nov. 12. The ACLU of New Hampshire originally raised this conflict in a letter to Scanlan’s office last week.
“On November 12, the Secretary of State is planning to enforce a law that will no longer exist and will potentially throw away lawful votes in the process—a profoundly concerning decision,” the ACLU said in response to Scanlan’s decision. “This is unlawful, legally frivolous, and is contrary to New Hampshire Constitution, which gives the power to make laws to the legislature.”
The Legislature passed the bill in June, but for months it sat idle rather than moving through the normal enrollment process, before finally being delivered to Sununu for his signature in mid-September. The bill goes into effect 60 days following his approval, something Sununu said was important, as he publicly stated he didn’t want to make any changes to election laws before this November’s contests.
The Attorney General’s office noted in a statement that “the Secretary of State is the chief election officer for the state and is responsible for administering the State’s election laws.”
The letter authored by Scanlan was sent to Henry Klementowicz, an attorney with the ACLU of New Hampshire. That group, along with the Democratic National Committee, previously sued to block the use of affidavit ballots. They argue the use of these marked, traceable ballots could disenfranchise qualified voters from participating in New Hampshire elections if they don’t have identification, and that the process for casting and then deducting an affidavit ballot jeopardizes the privacy rights of some voters.
A lower court judge dismissed the ACLU’s legal challenge, but didn’t rule on the merits of the case. An appeal before the state Supreme Court was scheduled for Thursday, but has been delayed.
An attorney for the Democratic National Committee declined to comment Wednesday on if they would pursue an appeal over Scanlan’s interpretation of the law’s conflicting dates, and instead directed questions to the presidential campaign of Vice President Kamala Harris. A spokesperson for the campaign declined to comment on the matter.
Only seven New Hampshire voters have completed affidavit ballots since the law went into effect at the start of last year; that’s far fewer than many election observers expected. But this November will be the first time the policy is in place for a presidential election, when voter turnout typically climbs to its highest levels.
The new law repealing the use of affidavit ballots also lays out one of the strictest voter identification policies in the country. Starting in future elections, all first-time registrants in the state will need to show proof of U.S. citizenship in the form of a passport, birth certificate or naturalization papers, with no exceptions. There will also be no exceptions for voters who fail to show identification at the polls on Election Day. Those provisions have already been challenged in court, including by a coalition of advocacy groups represented by the ACLU.
“Granite Staters’ right to vote by affidavit ballot is still intact and the Secretary of State’s decision should not cause any alarm or confusion on Election Day,” Klementowicz said.
Under the current registration system, voters can swear to their eligibility to vote by signing an affidavit, if they don’t have certain documents in hand.
