After Jaffrey woman’s appeal, state argues voters’ privacy at issue

Last modified: 3/6/2013 6:23:01 PM
JAFFREY — In her N.H. Supreme Court appeal, a Jaffrey woman maintains that ballots are public record and should be accessible by the people for their review after the recount period is over. But the state says an invasion of voters’ privacy is at stake.

Deborah Sumner of Jaffrey is arguing that the public has a right and a responsibility to verify election results without a court order. The people, she told the Ledger-Transcript on Tuesday, serve an essential role in the established checks and balances of their state government.

The state of New Hampshire in its late February response to Sumner’s suit — which is now before the N.H. Supreme Court — said that although the New Hampshire Constitution protects people’s right of access to government documents that right is “not absolute.” Such a public review of ballots would open Pandora’s box, the state claims, to future “vote-buying schemes” and hostility among voters who cherish their privacy.

“The ‘experience’ of New Hampshire voters, for almost the entire history of this state, has been to vote via private, secret, secure ballots, that even under the early laws of this state, were not open to potential adulteration by the public,” reads the state’s response.

By giving an individual the right to personally inspect ballots, the state says that it runs the risk of people altering the ballots and/or viewing identifiable voter information that spells out who voted for which candidates.

But Sumner refutes the state’s defense in a draft response emailed to the Ledger-Transcript on Tuesday, saying that only in rare circumstances do cast ballots meet the standard for confidentiality. Sumner must file her response with the state Supreme Court by March 13.

“In towns that still hand count or where the moderator oversees a ‘parallel hand count’ to verify the accuracy of the computer count citizens (sworn in as election officials) count their neighbors’ ballots. In recounts, people count ballots,” Sumner wrote in defense of her position that ballots should be open to public inspection. “In all cases, ballots are both ‘secret’ and anonymous.”

Sumner further states that electronic vote tabulation, which is used in Jaffrey, is not a secure counting method. It is susceptible to errors, she wrote in her suit, that no one can readily see because everything is happening inside a machine.

According to Sumner, the state Legislature erred in its attempts to exempt ballots from the Right to Know provisions added in 2003, as amended in HB 627-FN and in 2012, when it decided not to repeal the exemption in HB 1548. Sumner is now asking the N.H. Supreme Court to invalidate the ballot exemption from the Right to Know law.

Sumner first took her case to the Cheshire County Superior Court in 2012, but the court dismissed the case in late September ruling that since the Jaffrey ballots she sought had since been destroyed her suit to obtain them is moot. Failed attempts to get the court to reconsider its decision, and also consider the accessibility of ballots in future elections, prompted Sumner to appeal to the N.H. Supreme Court in December.

In Vermont and Colorado it was past practice to prevent the public from reviewing election ballots due to privacy concerns, according to Sumner. But those states’ laws have recently changed; state supreme courts in Vermont and in 2011 Colorado in 2012 recognized ballots as public records and thereafter made them accessible to the public after the recount period, according to Sumner.

New Hampshire, she says, should follow suit.

In August 2012, Sumner filed a Right to Know request and a preliminary injunction with the Cheshire County Superior Court so that all Jaffrey ballots from the Nov. 2, 2010, election could be preserved for her review. But Sumner said it was during her proceedings with the court and consultation with the town, that she learned the town of Jaffrey had destroyed the ballots months before her request.

Jaffrey Town Clerk Maria Chamberlain told the Ledger-Transcript in October 2012 that because 2010 was not a presidential election year, it was her understanding that the 22-month deadline to retain election ballots did not apply. Chamberlain said she followed state statute, which reads that federal elections ballots must be retained 22 months after an election, while non-federal and all other ballots must be kept for 60 days after the election.

In a letter to N.H. Secretary of State William Gardner in May 2012, Sumner cites a number of potential issues with the November 2010 election in Jaffrey, including miscommunication between the Secretary of State’s Office and the town. She wrote, “The review won’t affect the outcome of any recount or election, but will most likely show that all was fine with the November 2010 election in Jaffrey.”

In addition to her fight for greater transparency in the local, state and federal election process in the, Sumner is also seeking support for a petition warrant article in her hometown that would encourage public verification of votes.

According to the article, Jaffrey’s moderator would be directed by voters to hand count “one or more competitive/high profile questions, chosen at random after the polls close, in any town, school district, state or federal contest and to make that totally public.”

The petition warrant article will be discussed and voted on at Jaffrey’s Town Meeting on March 16 at 9 a.m. at Conant High School’s Pratt Auditorium.

Alyssa Dandrea can be reached at 924-7172 ext. 228 or She’s on Twitter at @alyssadandrea.


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