HB 466-FN – AS AMENDED BY THE HOUSE

15Mar2011… 0834h

2011 SESSION

11-0390

03/10

HOUSE BILL 466-FN

AN ACT eliminating the ballot law commission.

SPONSORS: Rep. Vaillancourt, Hills 15

COMMITTEE: Election Law

ANALYSIS

This bill eliminates the ballot law commission.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

15Mar2011… 0834h

11-0390

03/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Eleven

AN ACT eliminating the ballot law commission.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Reference Deleted. Amend RSA 5:13 to read as follows:

5:13 Commissions and Boards Functioning Within Department. The [ballot law commission, the] boxing and wrestling commission, the board of accountancy, and the joint board of licensure and certification shall each function within the department of state as a separate organizational entity and with all the powers and duties as heretofore provided, except as otherwise provided by law.

2 Vacancy. Amend RSA 652:12, V to read as follows:

V. Has his or her election voided by court decision [or ballot law commission decision]; or

3 References Changed. Amend the introductory paragraph of RSA 654:38 to read as follows:

654:38 Verification of Checklists. On petition of 50 registered voters or 5 percent of the registered voters in any town or ward, whichever is less, or on petition of a majority of the board of supervisors of the checklist filed with the secretary of state no later than the fifth Friday after a state election, the [ballot law commission] secretary of state shall conduct an investigation to determine whether or not there should be a revision and verification of the checklist of said town or ward. At least one public hearing duly advertised in a newspaper of general circulation in said town or city shall be held by the [commission] secretary of state at such time and place [it] he or she may determine. In the event of an affirmative decision, the [commission] secretary of state shall direct the supervisors to revise and verify such checklist. Thereupon the supervisors shall revise and verify such checklist in the following manner:

4 Reference Changed. Amend RSA 654:38, III to read as follows:

III. Upon completion of verification of the checklist, but, in no event later than September 1, the supervisors shall file with the secretary of state the following certificate: We, the supervisors of the checklist of the town (or ward ___) of ___, do hereby certify that we have verified the checklist of registered voters in the town (or ward _____________ of the city) of ______________ as directed by the [ballot law commission] secretary of state.

5 Reference Changed. Amend RSA 655:14-b, IV to read as follows:

IV. If the appropriate official with whom the declaration of candidacy, declaration of intent, primary petitions, or assents to candidacy are filed does not accept them and returns them to the candidate because in the opinion of the official they do not conform to the provisions of this section, the candidate may appeal to the [ballot law commission as provided in RSA 665:9] superior court.

6 Straw Candidates. Amend RSA 655:31 to read as follows:

655:31 Straw Candidates. No person shall be a candidate for nomination at any primary unless his or her candidacy is bona fide and is filed for the actual purpose of personally seeking the nomination. Any candidate for nomination whose name is to be voted upon at primary election may, no later than the Wednesday after the last day for filing declarations of candidacy and primary petitions, file a petition with the [ballot law commission] secretary of state alleging that one or more candidates for the same nomination is not a bona fide candidate. Upon receipt of such a petition, the [commission] secretary of state shall notify in writing all candidates of that party for the same nomination of the time and place for [its] the hearing. After such hearing, the [ballot law commission] secretary of state shall have the power and duty to order stricken forthwith from the primary ballot the name or names of any candidate or candidates for said nomination if the [commission] secretary of state finds that such candidate or candidates is obviously not a bona fide candidate, obviously having filed not primarily for the purpose of seeking the nomination but primarily for the purpose of drawing votes which might otherwise be cast for some other candidate for the same nomination. The decision of the [commission shall be final as to questions both of law and fact, and no court shall have jurisdiction to review such decision] secretary of state may be appealed to the superior court.

7 Reference Changed. Amend RSA 656:40 to read as follows:

656:40 Adoption. The mayor and aldermen of any city or the selectmen of any town, subject to the approval of the [ballot law commission] secretary of state, may authorize the use of one or more electronic ballot counting devices for the counting of ballots in such city or town on a trial basis for any regular or special election and pay the expense of such trial from any available funds. The use of such devices so authorized shall be valid for all purposes. Any town, or the mayor and aldermen of any city, may vote to lease or purchase electronic ballot counting devices for the elections held in said town or city. Any town, or the mayor and aldermen of any city, so acting shall notify the secretary of state of the action taken in regard to electronic ballot counting devices; and, after said action, electronic ballot counting devices shall be used in said town or city in accordance with said vote or authorization.

8 References Changed. Amend RSA 656:41 to read as follows:

656:41 Approval by [Ballot Law Commission] Secretary of State. The [ballot law commission shall act as a board to] secretary of state examine devices for the electronic counting of ballots. The [commission] secretary of state shall, whenever requested, examine any device which may be capable of meeting the requirements for elections held in this state. The [commission] secretary of state shall approve such device in [its] his or her discretion, and no device shall be used in any election in this state unless it reads the voter’s choice on a paper ballot and is of a type so approved by the [ballot law commission] secretary of state. Any device that is altered must be re-approved before it is used in any election in this state. For the purposes of this section, a device shall be considered altered if any mechanical or electronic part, hardware, software, or programming has been altered.

9 References Changed. Amend RSA 656:42, I-II to read as follows:

I. The [ballot law commission] secretary of state shall make such rules as may be necessary to ensure the accuracy of electronic ballot counting devices, including rules for the testing of electronic ballot counting devices prior to each election and the submission of testing records to the secretary of state. The [ballot law commission] secretary of state shall make such rules as may be necessary in order that electronic ballot counting devices may be used in this state in such a manner that the election laws may be complied with as far as possible. [Said commission] The secretary of state shall have the power and authority in making rules to declare certain laws relative to distribution and marking of ballots and other requirements inconsistent with the use of electronic ballot counting devices ineffective in towns and cities adopting such a method of voting. The presiding officer at each polling place shall enforce the rules of the [ballot law commission] secretary of state made under the authority of this section.

II. Consistent with the rules [of the ballot law commission], the secretary of state shall include protocols for the testing of electronic ballot counting devices in the election manual authorized by RSA 652:22. Each device shall be tested after installation and prior to each election.

10 Reference Changed. Amend RSA 656:42, VI to read as follows:

VI. Any person who knowingly violates the testing procedures established under this section or the rules of the [ballot law commission] secretary of state shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person.

11 Reference Changed. Amend RSA 659:77, III to read as follows:

III. If a return of votes is not timely submitted or is submitted with significant defects, if a recount discloses that the election night vote count was significantly inaccurate, or if other significant deficiencies in the conduct of an election are documented the secretary of state shall report the same to the attorney general. Upon a finding by the attorney general that the late submission, miscount, or other significant deficiency was due to lack of training, lack of established procedures, negligence, or misconduct, the secretary of state in consultation with the attorney general shall appoint an election monitor who shall be an individual trained in the conduct of elections and who shall attend portions of the ballot casting and all of the ballot counting to monitor the next election conducted in that town or ward. The finding of the attorney general may be appealed to the [ballot law commission] superior court.

12 Reference Deleted. Amend the introductory paragraph of RSA 659:84 to read as follows:

659:84 Certificates of Election. When the time for any recount or appeal to the [ballot law commission or] superior court has expired or when all candidates for an office whose names were placed on the official state general election ballot have waived in writing a recount and an appeal, whichever is first:

13 Reference Changed. Amend RSA 660:3 to read as follows:

660:3 Number of Recounts. Any candidate for whom a vote was cast for any office at a state general election, provided that the difference between the votes cast for the applying candidate and a candidate declared elected is less than 20 percent of the total votes cast in the towns which comprise the office to be recounted, shall be entitled to apply for only one recount under this chapter, and the declaration made by the secretary of state under RSA 660:6 shall be final, subject to a change in the result following an appeal to the [ballot law commission, as provided in RSA 665:8, II] superior court. The appellant shall not be subject to any fees for the appeal and the superior court shall expedite the appeal. If more than one candidate for the same office in the same district applies for a recount under this chapter, and a recount is completed, such applications shall not result in a second recount.

14 Reference Changed. Amend RSA 660:6, I to read as follows:

I. If the recount shall show that some candidate other than the one declared elected upon the original canvass of votes has the greatest number of votes cast for the office, the secretary of state shall declare said candidate to be elected; and, unless the result is changed upon an appeal taken to the [ballot law commission, as provided in RSA 665:8, II] superior court, such candidate shall be entitled to a certificate of election.

15 Reference Changed. Amend RSA 660:9 to read as follows:

660:9 Declaration of Result, State Primary. If the recount after a state primary election shall show that some candidate other than the one declared nominated upon the original canvass of votes has the greatest number of votes cast for the nomination, such candidate shall be declared nominated and shall be placed upon the official ballot at the following election unless appeal is taken to the [ballot law commission in accordance with RSA 665:6, I] superior court. The appellant shall not be subject to any fees for the appeal and the superior court shall expedite the appeal. If the person who applied for the recount was thereby shown to be the one chosen as the candidate of the party, the person shall also have any fee paid returned.

16 Reference Changed. Amend RSA 660:9-a to read as follows:

660:9-a Declaration of Result, Presidential Primary. If the recount after a presidential primary election shall show that the applying candidate qualified under RSA 659:93 for at least one more delegate than the original count indicated or that such candidate did qualify for federal election funding, such candidate shall receive such funding or shall be apportioned delegates to the national party convention in accordance with RSA 659:93 unless appeal is taken to the [ballot law commission in accordance with RSA 665:6, I] superior court. The appellant shall not be subject to any fees for the appeal and the superior court shall expedite the appeal. If the person who applied for the recount was thereby shown to be entitled to federal funding or at least one more delegate under RSA 659:93, the person shall also have any fee paid returned.

17 Reference Changed. Amend RSA 660:15 to read as follows:

660:15 Declaration of Result. If after the recount it shall appear that the result of the voting on said question is other than that announced by the moderator at the election, the secretary of state shall declare said result which shall be final unless the result is changed because of an appeal taken within 10 days to the [ballot law commission] superior court. The appellant shall not be subject to any fees for the appeal and the superior court shall expedite the appeal.

18 References Changed. Amend RSA 660:16, I to read as follows:

I. Upon the conclusion of every recount, the secretary of state shall replace the unprotested ballots and absentee voter envelopes in a suitable container for storage. The secretary of state shall retain the ballots and the absentee envelopes for at least 60 days following the recount. Upon an order of the [ballot law commission] superior court, the secretary of state shall produce the ballots for the inspection of the [commission] superior court. Following the [commission’s] court’s inspection, the secretary of state shall replace the ballots and envelopes, seal them, and certify the contents and the date when they were examined by the [commission] superior court. The envelopes and ballots shall be subject to the order of the body to which such person claims to be elected or of the officers required by law to examine the records and to issue certificates of election to such office or of any court having jurisdiction over them.

19 Reference Changed. Amend RSA 666:14 to read as follows:

666:14 Administrative Complaint Procedures. The attorney general may establish an administrative complaint procedure for the resolution of complaints of federal voting law violations, pursuant to the Help America Vote Act of 2002, Public Law 107-252. The attorney general may adopt administrative rules under RSA 541-A to implement the complaint resolution procedures. The [ballot law commission] secretary of state is hereby designated as the [body] person providing alternative dispute resolution as required by section 402(a)(2)(I) of the Help America Vote Act of 2002, Public Law 107-252.

20 Reference Deleted. Amend RSA 669:61, II to read as follows:

II. Nothing in this section shall be deemed to empower a town to find that a vacancy exists, in the case of a contested election or recount, until the rendering of a final judgment by a court of competent jurisdiction [or by the ballot law commission] as to such contested election in accordance with RSA 652:12, V, or until the recount has been concluded.

21 Repeal. RSA 665, relative to the ballot law commission, is repealed.

22 Effective Date. This act shall take effect January 1, 2012.

LBAO

11-0390

Amended 08/24/11

HB 466 FISCAL NOTE

AN ACT eliminating the ballot law commission.

FISCAL IMPACT:

The Department State states this bill, as amended by the House (Amendment #2011-0834h), will have no impact on state revenues and expenditures in fiscal year 2012 and each year thereafter. There will be no impact on county or local revenues or expenditures.

The Office of Legislative Budget Assistant is awaiting information from the Judicial Branch relative to the potential fiscal impact of this bill. The Branch was initially contacted on 03/21/11 and most recently contacted on 06/12/11.

METHODOLOGY:

The Department of State states this bill would eliminate the ballot law commission and transfer its duties to the Department and to the Judicial Branch. The Department states as it already absorbs the costs incurred by the ballot law commission, there would be no fiscal impact as a result of this bill.