092420AFT-Appendix1.Pdf

Filed File Date: 9/24/2020 1:39 AM Hillsborough Superior Court Northern District E-Filed Document

HILLSBOROUGH, SS SUPERIOR COURT NORTHERN DISTRICT

Docket No. 216-2020-CV-00570

AMERICAN FEDERATION OF TEACHERS,

Plaintiff,

WILLIAM GARDNER, in his official capacity as the New Hampshire Secretary of State; and GORDON MACDONALD, in his official capacity

as the New Hampshire Attorney General, Defendants.

PLAINTIFFS’ APPENDIX TO REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

STATE OF NEW HAMPSHIRE

HILLSBOROUGH, SS SUPERIOR COURT NORTHERN DISTRICT

DOCKET NO. 216-2020-CV-00570

AMERICAN FEDERATION OF TEACHERS AND

MARY WILKE

WILLIAM GARDNER, in his official capacity as the New Hampshire Secretary of State;

AND

GORDON MACDONALD, in his official capacity as the New Hampshire Attorney General

ATTORNEY AFFIDAVIT OF BRUCE V. SPIVA IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

I, Bruce V. Spiva, being duly sworn, state as follows:

1. I am over 18 years of age and have personal knowledge of the below facts, which are true and accurate to the best of knowledge and belief.

2. I am an attorney with the firm of Perkins Coie LLP, and counsel for Plaintiffs the

American Federation of Teachers and Mary Wilke. I make this declaration in support of

Plaintiffs’ Motion for Preliminary Injunction.

149631942.1 3. Attached hereto as Exhibit 48 is a true and correct copy of a printout of the article

U.S. Postal Service warns that Pennsylvania’s mail-in ballot laws could cause some votes not to

be counted by Zak Hudak (August 14, 2020) which is publicly available at

https://www.cbsnews.com/news/postal-service-pennsylvanias-mail-in-ballot-laws-election-

issues/

4. Attached hereto as Exhibit 49 is a true and correct copy of a printout of the article

After N.H. Primary, Training Election Officials Becomes State’s Focus by Peter Biello (Sept 15,

2020) which is publicly available at https://www.nhpr.org/post/after-nh-primary-training-

election-officials-becomes-states-focus#stream/0

5. Attached hereto as Exhibit 50 is a true and correct copy of a printout of a letter to

His Excellency Christopher T. Sununu from The City of Town Clerks Association;

6. Attached hereto as Exhibit 51 is a true and correct copy of a printout of the article

Nashua City Hall Experiences Outbreak with Six COVID-19 Cases from the City of Nashua posted on September 21, 2020 which is publicly available at

https://www.nashuanh.gov/CivicAlerts.aspx?AID=1549

7. Attached hereto as Exhibit 52 is a true and correct copy of a printout of the article

Attorney General Says N.H. GOP Broke Election Law, Orders Halt On Party’s Mailers by Dan

Barrick (August 28, 2020) which is publicly available at https://www.nhpr.org/post/attorney-

general-says-nh-gop-broke-election-law-orders-halt-partys-mailers#stream/0

- 2 - 149631942.1 8. Attached hereto as Exhibit 53 is a true and correct copy of a printout of the article

Local Pollworkers Plead With State to Adjust Absentee Process Before November by Casey

McDermott (September 17, 2020) which is publicly available at https://www.nhpr.org/post/local-

pollworkers-plead-state-adjust-absentee-process-november#stream/0

FURTHER THE AFFIANT SAYETH NOT.

I swear that the above information is true and correct to the best of my knowledge and belief.

Dated: 09/23/2020______Bruce V. Spiva

DISTRICT OF COLUMBIA

09/23/2020 On, ______, personally appeared before me the above-named KarenBruce Halliday Spiva and swore that the foregoing statements are true to the best of his knowledge and belief.

______

Justice of the Peace/ Notary Public

My commission expires: ______09/25/2022

Notarized online using audio-video communication

- 3 - 149631942.1 EXHIBIT 48 9/23/2020 U.S. Postal Service warns that Pennsylvania's mail-in ballot laws could cause some votes not to be counted - CBS News

L I V E

U.S. Postal Service warns that Pennsylvania's mail-in ballot laws could cause some votes not to be counted

BY Z A K H U DA K AU G U S T 1 4 , 2 0 2 0 / 8 : 3 9 A M / C B S N E W S

The United States Postal Service warned Pennsylvania in July that its "delivery standards" won't meet the state's strict deadlines for requesting and returning mail-in ballots, according to a letter included in a Thursday court ling. As a result, the USPS warned, there's a risk that ballots requested near the deadline in one of the nation's most contested states won't be returned in time to be counted.

https://www.cbsnews.com/news/postal-service-pennsylvanias-mail-in-ballot-laws-election-issues/ 1/6 9/23/2020 U.S. Postal Service warns that Pennsylvania's mail-in ballot laws could cause some votes not to be counted - CBS News The State Department's ling asked the state Supreme Court to allow mail-in ballots to be counted if they're received by counties up to three days after the election so long as they were

postmarked by Election Day. It was a concession to the plaintis, a handful of voters and the Pennsylvania Alliance for Retired Americans, who had sued in April for the state to allow mail- in votes received a full week after the election to be counted if postmarked by November 3.

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The ling, which withdrew the state's objections that the request was "speculative," said that the State Department had previously been made "aware of isolated issues in certain counties." But "Prior to Mr. Marshall's letter, the Postal Service had not indicated the likelihood of widespread, continuing, multiple-day mail-delivery delays presenting an overwhelming, statewide risk of disenfranchisement for signicant numbers of voters utilizing mail-in ballots," the department said.

The State Department had previously fought against allowing ballots received after Election Day to be counted, although Governor Tom Wolf gave six of the state's most populous counties an extension with an executive order. In late July, Wolf announced the state would pay for prepaid postage for all mail-in ballots, meeting a request that had been made by plaintis in the same lawsuit.

But the request to allow counties to count ballots received after Election Day also underscores the likelihood that counties in the state will still be counting ballots days after Election Day, as they were in the June 2 primary.

The progressive PAC Priorities USA had backed the plaintis' lawsuit. The committee's chairman, Guy Cecil, praised the State Department's change of heart in a statement. "This decision is an important step in addressing the mounting barriers to voting that Americans are navigating as a result of deliberate voter suppression," he said. https://www.cbsnews.com/news/postal-service-pennsylvanias-mail-in-ballot-laws-election-issues/ 4/6 9/23/2020 U.S. Postal Service warns that Pennsylvania's mail-in ballot laws could cause some votes not to be counted - CBS News

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https://www.cbsnews.com/news/postal-service-pennsylvanias-mail-in-ballot-laws-election-issues/ 6/6 9/23/2020 U.S. Postal Service warns that Pennsylvania's mail-in ballot laws could cause some votes not to be counted - CBS News

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The Pennsylvania State Department and the U.S. Postal Service did not immediately respond to a request for comment.

First published on August 13, 2020 / 11:16 PM

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Many failed before. Will you complete the Trial? https://www.cbsnews.com/news/postal-service-pennsylvanias-mail-in-ballot-laws-election-issues/ 5/6 9/23/2020 U.S. Postal Service warns that Pennsylvania's mail-in ballot laws could cause some votes not to be counted - CBS News ece e updates, o e s & ot e o at o o t e C S a y o co pa es & ou pa t e s Opt out t oug t e u subsc be a y a et g e a

Even rst class mail takes two to ve days to be delivered, Marshall wrote.

Zak Hudak @cbszak

Here’s the letter where the USPS general counsel warned that PA mail-in ballot request and receipt deadlines “are incongruous with the Postal Service’s delivery standards” and that ballots requested close to the deadline might not get counted

9:46 PM · Aug 13, 2020

5 See Zak Hudak’s other Tweets

The letter, which was included in a Thursday ling by the Pennsylvania State Department in the Commonwealth's highest court, recommended that voters submit ballot requests at least 15 days before election time, "and preferably long before that time."

https://wwwh .cbsnews.com/news/postal-service-pennsylvanias-mail-in-ballot-laws-election-issues/li k d h ll il i b ll b 3/6 9/23/2020 U.S. Postal Service warns that Pennsylvania's mail-in ballot laws could cause some votes not to be counted - CBS News

Under current Pennsylvania law, voters can request a mail-in ballot as late as seven days before the election. Counties can't count ballots received after Election Day.

In a July 29 letter to Pennsylvania Secretary of State Kathy Boockvar, the Postal Service's general counsel and executive vice president Thomas Marshall warned that the "mismatch" between Pennsylvania's laws and the delivery capabilities of the mail system "creates a risk that ballots requested near the deadline under state law will not be returned by mail in time to be counted under your laws as we understand them."

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After N.H. Primary, Training Election Officials Becomes State's Focus

By PETER BIELLO (/PEOPLE/PETER-BIELLO) • SEP 15, 2020

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/ (//www.nhpr.org/sites/nhpr/files/styles/x_large/public/202009/Portsward4voter_tuohy.JPG) A voter at a Portsmouth poll Sept. 8 shows his identification to an election official. DAN TUOHY / NHPR

COVID-19 made this month’s primary election in New Hampshire unlike any other. Voters case ballots wearing masks and voting in person or absentee, and election workers added “staying safe from infection” to their list of things-to-do while making voting easy for their fellow community members.

With the general election less than two months away, we wanted to know what lessons the state took away from this unusual primary that might be useful in November. NHPR's Peter Biello spoke with Assistant Attorney General Nicholas Chong Yen.

Listen 5:53

NHPR's Peter Biello speaks with Assistant Attorney General Nicholas Chong Yen.

/ 2020 Elections Guide: How to Vote Absentee or At The Polls During COVID-19 (https://www.nhpr.org/post/2020-elections-guide-how-vote-absentee-or-polls-nh-during-covid- 19#stream/0)

What, if anything, happened on Election Day that you didn't anticipate, something that might make the state adjust its approach to the general election in November?

I think what we're going to be doing is making sure there's additional training surrounding the modifications that have been made temporarily for election operations at the polls. There were some questions that had come in from both voters and officials just wanting clarification about how certain operations were being conducted. There were questions, for example, about the use of a separate voting area for those that were unable or unwilling to wear a mask and having a polling place that had a mask requirement. So that is one of the things that we're continuing to work with election officials on in addressing an expectation for November. But I think the important thing to understore about the state primary is just how successful it ultimately was. Our officials were incredibly diligent in trying to prepare for the September primary. So we owe them a sincere debt of gratitude because of the sheer volume of additional things on top of all the other jobs that they have to commit to for the success of the September primary.

According to your office, there were no significant issues regarding mask use, although you did receive some complaints regarding the wearing of masks. Some election officials have told your office that they'd feel more comfortable having a statewide standard for mask use at polling places to take the pressure of individual election officials or volunteers. Is that something you're considering?

Our role as an enforcement authority is to enforce the laws that currently exist as well as working with our officials to help them navigate these unique challenges as a result of COVID. In terms of a statewide mask mandate, that wouldn't be within that purview, but we are continuing to work with our officials to help them tackle these unique challenges. And so, like we've done before the September primary, we are always available to discuss questions that might come up in conjunction with the Secretary of State, and make sure that officials are as prepared for the (https://mediad.publicbroadcasting.net/p/nhpr/files/sNtoylveesm/xb_elarr eglee/cptuiobnlisc /a2s0 p2o0s0si9b/liem. g_2953__1_.jpg) The 2020 General Election is Nov. 3. CREDIT ELLEN GRIMM / NHPR Overall, what kind of worries or questions are you hearing from the public? / One of the things we took away from the state primary was that anyone who wanted to vote was able to vote and do so in a way that was conducted safely and in fully realizing their ability to exercise their constitutional right to vote.

Your office told NHPR that you received about 10 calls on primary day related to absentee ballots that weren't received in time for the primary. You just mentioned that anybody who wanted to cast a ballot was able to successfully do so. What about those 10 people who believed that their absentee ballots didn't come in in time for the primary? Were those people successfully able to cast their ballot?

One of the things we have to be mindful of is, there is a statute that imposes a cutoff time for receipt for completed absentee ballots on election day for 5 p.m. So election officials cannot receive absentee ballots after that cutoff time. That's something that existed before COVID-19 and continues to be a requirement that we have to follow in both the state primary and the November general election.

With respect to those absentee ballots that had arrived after the cutoff time, election officials correctly followed the law in making sure that the 5 p.m. cutoff time was observed.

And did you observe any election problems related to the Postal Service, or ballots not being delivered because of problems with the Postal Service?

We didn't receive any reports with respect to the Postal Service. One of the things that I think bears emphasizing is the sheer volume of absentee ballots that were received prior to election day, which officials worked diligently to process to make sure all the ballots had been received from voters and that absentee ballots were properly processed and counted.

And if the general election goes as well as the primary, should New Hampshire consider making the broader access to absentee voting a regular thing and not just something special during a pandemic?

The absentee ballot process is a function of our constitution and recognizes specific categories of how that process is carried out. And so I think we've done a really great job of making sure that those individuals who would like to vote during the public health crisis have been able to vote, providing not only the access to the absentee voting process but voting options at the polls on election day. That is certainly going to be something that, I think, can be a topic of discussion following the November election. But for now, we're really focused on making sure election officials are prepared as possible to facilitate the November election. ______

Editor's Note: What has your voting experience been like during COVID-19? Do you have questions about casting a ballot that we didn't address here? Send them to [email protected] (mailto:[email protected]) and we'll try to report back with answers or incorporate them into this voting guide.

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/ Exhibit 50

- 2 - His Excellency Christopher T. Sununu Governor of New Hampshire 107 North Main Street Concord, NH 03301

Dear Governor Sununu,

Last week New Hampshire experienced an election like we have never seen before. Our election officials stepped up to ensure every eligible voter could safely and securely cast their ballot. Due to necessary improvements to our absentee ballot laws that allowed anyone concerned with COVID-19 to vote absentee, New Hampshire saw ten times as many absentee ballots cast as previous elections. The work of processing those ballots fell to Town and City Clerk’s offices still grappling with how to conduct business in a pandemic.

During the end of the last legislative session, the Legislature passed and you signed HB 1266. Part of the intent of this bill was to allow local election officials more flexibility in processing absentee ballots, specifically the pre-processing of absentee ballots. The law states “and a notation may be made on the checklist to help facilitate the processing of the ballot on election day.” This sentence has been narrowly interpreted by the Secretary of State to not include notating the checklist to mark an absentee voter or to cross the voters name off the checklist indicating that the voter has submitted a ballot prior to election day. Enabling this crucial step before the general election is essential to the ability of election officials to produce a timely count of ballots on November 3.

At this point, it may be helpful to explain in detail part of the process for processing an absentee ballot on election day. Once the outer envelope is opened, it is given to the Ballot Clerk to mark “AV” for absentee voter and then cross the voter off the checklist (to ensure they cannot vote in person). In the state primary, Ballot Clerks had the additional step of marking for undeclared voters whether they pulled a Democratic or Republican ballot. This is complicated and time consuming because the Ballot Clerk is also checking in in-person voters at the same time. Due to the time constraints of this process with Ballot Clerks, it took hours and in some towns past the time polls closed to process the absentee ballots.

We should expect both a higher number of absentee ballots for the General Election and a higher number of in-person voting. If our pre-processing guidelines aren’t improved before then, polling locations will have to recruit even more volunteers. By enabling election officials to publicly pre-process the absentee ballots - including Ballot Clerks being able to make the notation indicating a voter has voted absentee - you remove that cumbersome step from election day and allow Ballot Clerks to focus on providing quick service to in-person voters. To be very clear-- without the ability to pre-process absentee ballots as we have described above, voters should expect longer wait times at the polls and we may not see election results in a timely manner. It is important to note with this updated pre- processing plan that the affidavit envelope containing a voter’s absentee ballot would remain sealed until election day, so election security would be preserved.

We ask that either the Executive Branch clarifies that local election officials are in fact allowed to mark for absentee voters before election day or to issue an emergency order that would allow it. It is imperative this action is taken to ensure timely election results and a smooth process for election officials and voters alike on November 3rd.

Sincerely,

Marguerite F. Morgan, President NH City and Town Clerk Association*, Greenland Town Clerk Matthew Normand, Manchester, City Clerk Lorrie Pitt, Durham, Town Clerk Betsy McClain, Hanover, Town Clerk Kevin Pobst, Francestown, Moderator Josie Girona Ewing, Plymouth, Town Clerk Sara Perceshino, Hopkinton, Moderator Sharyn Kelley, Manchester W1, Moderator Jim Gaudet, Manchester W8, Moderator Patricia Little, Keene, City Clerk Carol Harless, Hopkinton, Town Clerk Jean Lightfoot, Hopkinton, Supervisor of the Checklist Susan Lovering, Nashua, City Clerk Katherine Rogers, Concord, Supervisor of the Checklist Gwen Mikailov, Nashua Chair, Board of Registrars Sue Nastasi, Rollinsford, Supervisor of the Checklist Ann Shump, Durham, Supervisor of the Checklist Jenn Alford-Teaster, Sutton, Supervisor of the Checklist Joan Dargie, Miford, Town Clerk Sherry Farrell, Londonderry, Town Clerk Jeremy Eggleton, Hanover, Moderator Katie Gargano, Franklin, City Clerk Don Johnson, Freedom, Moderator Nancy Marashio, New London, Ballot Clerk Mary Jackson, Bethlehem, Town Clerk Barbabra Clark, East Kingston, Town Clerk Virginia McGinley, Brookfield, Town Clerk Lee Dufrt, Newport, Town Clerk Todd Ranier, Hooksett, Town Clerk Cindy Robinson, Hooksett, Moderator Jarier Olivarez, Hooksett, Supervisor of the Checklist Virgina Biddy Irwin, Newport, Moderator Christina Guilford, Derry, Moderator Kelli Barnaby, Portsmouth, City Clerk Bill Klein, Bedford, Moderator Linda Guyettte, Peterborough, Town Clerk Jonathan Kipp, Londonderry, Moderator Cindi Rice Conley, Londonderry, Assistant Moderator Belinda Yeaton, Mont Vernon, Town Clerk Peter Basiliere, Milford, Moderator Barbaba Brennan, Hooksett, Supervisor of the Checklist Billie Hebert, Hooksett, Deputy Town Clerk Don Riley, Hooskett, Assistant Moderator Kathleen Silva, Auburn, Town Clerk Pat Waterman, Wolfeboro, Town Clerk Dean Bouffard, Greenland, Moderator Winston Gouzoules, Greenland, Supervisor of the Checklist Raymah Simpon, Bristol, Town Clerk

*The City and Town Clerks Association endorses the above letter.

CC: William Gardner, Secretary of State Gordon McDonald, Attorney General Nicholas Chong Yen, Attorney General, Election Law Unit

Exhibit 51

- 2 - City of Nashua News Tools Posted on: September 21, 2020 RSS Nashua City Hall Experiences Outbreak with Six COVID-19 Cases Notify Me NASHUA, NH - Two new positive COVID- Categories 19 cases have been identified at Nashua City Hall, with six cases in total among All Categories city hall staff. As a result of this, Nashua Assessing City of Nashua City Hall will be closed beginning News Monday, September 21 through Monday, Nashua Transit Oct. 5, 2020. Essential city services, System News including motor vehicle transactions, Road Construction, City Clerk services and transactions for Detours & Paving the Tax Office, will remain available via phone, email and dropbox.

“City leaders are working with Nashua’s Department of Public Health and Community Services on health and safety protocols at this time, as well as sharing information with city hall employees to maintain the wellbeing of all. The health and safety of city employees and members of the public is the number one priority,” said Nashua Mayor Jim Donchess. “We have made arrangements to continue essential motor vehicle and city clerk transactions, as well as other essential city services.”

All measures have been taken to keep the public safe. No public exposure has been identified.

Flavia Martin, City of Nashua Division of Public Health and Community Services Communicable Disease Program Coordinator, said testing remains available and the public health department is on top of monitoring the situation.

“We have continued to monitor the cluster of COVID-19 cases at Nashua City Hall. On Thursday, September 17, we learned of two new illness onset. With this newest development, these cases now meet outbreak definition. All disease investigation protocols are being followed and we are offering guidance and recommendations to Nashua City Hall staff as appropriate,” said Martin. Enable Google Translate / Motor Vehicle and Tax Office Transactions

During this time period, customers who have appointments should arrive at your scheduled time at the Elm Street Entrance to city hall. Motor Vehicle and Tax staff will assist you in placing your information in an envelope for processing. Your registration materials will be mailed to your address.

City Clerk Services

To make changes to your voter registration or to register to vote, call 589-3010, option 5, and leave your name and address. A packet and instructions will be mailed to your home. Ballots for the general election have not yet been received but are expected within the next couple of weeks. The City Clerk’s Office will continue to accept online and mail-in requests. Visit us online to download a request for an absentee ballot for the upcoming general election or track your request online.

You may track the status of your absentee ballot through the Secretary of State’s website here:https://app.sos.nh.gov/Public/AbsenteeBallot.aspx. Due to the temporary closing of city hall, the city clerk’s office will suspend all appointments in person to apply for a marriage license. Residents can also reach the City Clerk’s office via email, at [email protected].

What is an outbreak and what does it mean?

An outbreak occurs when there are three or more cases which are discovered to be linked and the linkage is established outside of a case investigation and contact tracing. Any settings experiencing an outbreak should maintain all recommended precautions until there are no additional clinical cases for 14 days or until cases subside in a community.

Public Health Nurses from the Nashua DPHCS have continued case investigation and contract tracing for this outbreak. The confirmed cases are currently self-isolating at home for 10 days. All close contacts have been notified and advised to self-quarantine for 14 days, as well as get tested. All Nashua City Hall staff were notified of the development of cases and encouraged to get tested and self-monitor for any new onset of illness. The Nashua DPHCS will continue to monitor the situation.

If you are experiencing ANY symptoms of illness, such as new onset of sore throat, congestion, runny nose, headache, muscle ache, fatigue, new loss of taste or smell, fever, cough, shortness of breath, nausea, vomiting, or diarrhea, we advise you to stay at home and contact your health care provider. You can also schedule a free COVID-19 test at the Nashua DPHCS COVID-19 Testing Clinics held every Tuesday from 3-5 p.m. at the Elm Street Parking Garage. To schedule an appointment, complete the online form at Enable Google Translate / bit.ly/NashuaCOVIDTestingForm or call the Nashua COVID-19 Hotline at 603- 589-3456. For additional COVID-19 testing options, visit nashuanh.gov/1383/Testing.

For more information regarding COVID-19, visit the City of Nashua website at www.nashuanh.gov/COVID19. For additional information and resources, visit the NH Department of Health and Human Services (DHHS) online at www.nh.gov/covid19.

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Attorney General Says N.H. GOP Broke Election Law, Orders Halt On Party's Mailers

By DAN BARRICK (/PEOPLE/DAN-BARRICK) • AUG 28, 2020

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This story was with additional information after the New Hampshire Republican Party clarified its plans for correcting the mistake on its mailers. You can read the party's plan in full here

(https://mediad.publicbroadcasting.net/p/nhpr/files/styles/x_large/public/202008/IMG_5826.jpg)

/ The New Hampshire Attorney General says this mailer from the state Republican Party broke state election law.

(https://www.nhpr.org/sites/nhpr/files/202009/nh_ab_mail_memo__004_.pdf).

The Attorney General’s office says an absentee ballot application distributed by the New Hampshire Republican Party violates state election law and may confuse voters, and has ordered party officials to stop mailing it immediately.

The order, issued Friday, is the latest round of scrutiny (https://www.nhpr.org/post/nh-attorney- general-asking-gop-cover-costs-their-absentee-mailer-printing-mistake) from the Attorney General over a series of state GOP election mailers that have gone out in recent weeks. The mailers aim to encourage people to vote absentee in the upcoming elections, as New Hampshire has expanded absentee voting rules amid the COVID-19 pandemic. But the Attorney General's office, as well as many of the mailers' recipients, say they are confusing and potentially misleading.

The first batch of GOP mailers, sent in early August, directed recipients on how to register to vote absentee, but the forms included incorrect information on where to return them, a mistake the Republican Party blamed on a “printing error.” Many of the mailers were also addressed to long- deceased people who had never lived at the listed address.

The second batch of mailers, which went out last week, included directions for recipients to request their actual absentee ballot, but failed to correctly reproduce the proper application.

"The State [Republican] Committee's choice to publish this defective form more than two weeks prior to the September State Primary may cause voter confusion and frustration," the Department of Justice said in a cease and desist order issued Friday. The order also required the state Republican Party to come up with a plan for letting the recipients of the mailer know that the absentee ballot form it includes is faulty.

In accordance with the state's orders, the state Republican Party outlined that plan in a memo issued Aug. 31 (https://www.nhpr.org/sites/nhpr/files/202009/nh_ab_mail_memo__004_.pdf). The party said it would contact people who filled out the absentee ballot mailer that prompted the cease and desist order, relying on information from the United States Postal Service, to let them know the form they filled out would not be sufficient for voting in the September primary election.

After that memo was issued, Associate Attorney General Anne Edwards told NHPR the party's solution was an "adequate remedy" and said her office would be ensuring compliance moving forward.

Have questions about voting amid the pandemic? Check out NHPR's 2020 Voter's Guide (https://www.nhpr.org/post/covid-19-voting-guide-how-vote-new-hampshires-elections-during- pandemic#stream/0)

/ State investigators are still reviewing the first batch of roughly 50,000 mailers, which directed recipients to return their completed absentee registration form to the Durham town clerk’s office, even if they did not live in Durham. In fact, voters seeking to register to vote absentee (https://www.nhpr.org/post/covid-19-voting-guide-how-vote-new-hampshires-elections-during- pandemic#REGISTERING%20TO%20VOTE) need to contact their local town or city clerk.

The cease and desist order issued to the state Republican Party on Friday is targeted at the party’s second batch of mailers. State law allows third-party groups to help voters secure absentee ballots, but specifies that they must use the same request form used by the Secretary of State.

In an interview after the state first issued its cease and desist order, Edwards said the form in the state GOP’s mailer is flawed for two reasons: it doesn’t give voters the option to request a ballot for the September primary election; and it doesn’t specify that a person who helps a disabled voter fill out the ballot application must sign their name on the form.

Edwards said Department of Justice officials are concerned that some voters may believe that by returning the state party’s application, they will get a ballot for the September primary election, when in fact the form does not include that option.

In its cease and desist order, the Attorney General notes that the state Republican Party said it got the approval of Deputy Secretary of State David Scanlan for its absentee ballot application. But the order notes that Scanlan’s approval “is not a basis for the [state Republican Party] not to comply with New Hampshire law as the Secretary of State’s Office does not have the general authority to waive provisions of the law.”

In an emailed statement, New Hampshire GOP spokesman Joe Sweeney said the party “acted in good faith” in mailing out the absentee ballot request forms after getting the “approval” of the Secretary of State’s office.

“Now that the attorney general has raised concerns with them, we are quickly remedying the situation as we work to encourage as many eligible voters to participate in the electoral process as possible,” Sweeney wrote.

Sweeney declined to answer additional questions about the mailers. A spokesperson for the New Hampshire Secretary of State did not respond to an email seeking comment Friday afternoon.

Edwards said the state Department of Justice is also investigating why the mailers included such a range of incorrect address information. Her office has learned of some mailers going to out-of-state residents, directing them to apply for an absentee ballot in New Hampshire. Edwards said investigators have been in contact with state GOP officials, as well as outside vendors involved in the printing of the mailers.

“We’re continuing to investigate and review those,” Edwards said.

/ The Attorney General’s office has not issued any financial penalty against the Republican Party over the mailers, though the party will be required to reimburse the state (https://www.nhpr.org/post/nh- attorney-general-asking-gop-cover-costs-their-absentee-mailer-printing-mistake) for the time spent on the investigation, including sorting through and redirecting the absentee registration requests that were returned to the wrong clerk’s office, Edwards said.

Friday’s cease-and-desist order gave the state GOP until Monday to present a plan for how it will notify everyone who received one of its absentee ballot request forms that they can’t be used for the September primary election.

“Any future failure to comply with our State’s election laws may result in this Office seeking enforcement action,” the order read.

While justice officials still have questions about how the mailers came to include so many mistakes, Edwards said the incident should not raise broader concerns about voters’ ability to cast absentee ballots this election cycle.

“This shouldn't be a red flag at all,” she said. “Our town and city clerks and all our election officials are on top of making sure that absentee ballots go out to people who want them in a timely fashion. We want people to vote and do so in a manner they are comfortable doing.”

Any New Hampshire resident concerned about exposure to COVID-19 can register remotely and vote absentee in this year’s elections (https://www.nhpr.org/post/state-election-officials-any-nh-voter-can- cast-absentee-ballot-register-remotely-due-covid-19). To do either, voters should contact their town clerk to request the necessary forms. Contact info for town clerks compiled by the New Hampshire Secretary of State's office can be found here (https://app.sos.nh.gov/Public/Reports.aspx).

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Local Pollworkers Plead With State to Adjust Absentee Process Before November

By CASEY MCDERMOTT (/PEOPLE/CASEY-MCDERMOTT) • SEP 17, 2020

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/ Rye Town Moderator Bob Eaton confers with a local election official while "pre-processing" absentee ballots Sept. 3 in the junior high gym. For 2020, election officials are allowed to process some paperwork that is typically done on Election Day. DAN TUOHY / NHPR

Looking ahead to November, some New Hampshire pollworkers are warning that delays are in store if the state doesn’t grant them more leeway in processing absentee ballots before Election Day.

Nearly 50 local election officials sent a letter (https://www.nhpr.org/sites/nhpr/files/202009/9.16.2020_letter_to_governor_from_local_election_officials to Gov. Chris Sununu this week requesting the ability to more clearly mark the voter checklist to show that someone's absentee ballot has been inspected before Election Day. The changes outlined in the letter also have the support of the New Hampshire City and Town Clerks Association.

Without changes to the current process, the election officials told Sununu (https://www.nhpr.org/sites/nhpr/files/202009/9.16.2020_letter_to_governor_from_local_election_officials “voters should expect longer wait times at the polls and we may not see election results in a timely manner.”

Sununu’s Chief of Staff Jayne Millerick told NHPR the governor's office received the letter and is “currently reviewing it." The Secretary of State’s office has not responded to NHPR’s request for comment.

A new law meant to accommodate a surge in absentee ballots due to COVID-19 allows New Hampshire pollworkers to start “pre-processing” absentee ballots a few days before the election, rather than waiting until the polls open.

Even with this change, pollworkers are not allowed to open the envelope containing a voter’s absentee ballot or begin counting ballots until Election Day. They are, however, allowed to check whether a voter has included all of the necessary signatures and paperwork with their absentee ballot, a time-consuming step that would otherwise have to wait until after the polls open. Members of the public are also allowed to raise challenges to a ballot’s validity during pre-processing, as they would at the polls on Election Day.

If there are no issues with the absentee paperwork and no challenge is raised, the law says “a notation may be made on the checklist to help facilitate processing of the ballot on election day.” The law doesn’t specify what kind of notation is acceptable. But the Secretary of State’s office has issued its own guidance (https://www.nhpr.org/sites/nhpr/files/202009/partial-processing-absentee- ballots__2_.pdf) on the matter, which local election officials say is too restrictive.

“The notation may not be drawing a thin line through the voter’s name, putting a checkmark in the box for that voter, or marking ‘A.V.’ in red ink,” the Secretary of State’s office wrote in an August memo (https://www.nhpr.org/sites/nhpr/files/202009/partial-processing-absentee-ballots__2_.pdf). “That final marking of the checklist must be done on election day at the polling place.”

/ It might seem like a minor thing, but New Hampshire City and Town Clerks Association President Marge Morgan said the kind of checklist notations the Secretary of State has banned are crucial to ensuring a more efficient absentee ballot process in November.

The same checklist that’s used to track absentee voters is also used at the check-in table for voters who show up at the polls. So, under the current process, Morgan said pollworkers who are trying to finish processing absentee ballots on Election Day have to keep interrupting other colleagues who need to deal with in-person voters. The result, she said, is that everything — voter check-in and absentee ballot counting — gets slowed down.

“I’m a small town, so it wasn’t horrible for us,” Morgan said. “But some of the larger towns who have five, six, seven precincts, you know, they’re there until two-dark-thirty in the morning.”

Nearly 100 communities chose to pre-process some ballots in the state primary (https://sos.nh.gov/elections/elections/2020-election-information/partial-processing-of-absentee- ballots/) earlier this month. But Manchester — which had about 5,300 absentee voters, more than anywhere else (https://www.nhpr.org/post/primary-postscript-how-absentee-ballots-reshaped-nhs- voting-landscape) — wasn’t one of them. City Clerk Matt Normand said he was initially looking forward to taking advantage of this new option, it wasn’t worth it without the ability to more clearly mark the voter checklist ahead of time.

The limited timeframe for pre-processing also isn't ideal, Normand said. Under the current law, it's only allowed to happen on the Thursday, Friday, Saturday or Monday before an election. That's crunch time for a lot of communities trying to deal with other pre-Election Day preparations, and Normand said it would ease pressure on busy voting districts like his if they could start pre-processing a full week before the election.

Normand understands some voters who cast an absentee ballot might like to retain the ability to change their mind and vote in-person on Election Day. But he says marking the checklist as he and other clerks have proposed won’t prevent anyone from doing that.

“The tabulation still happens on Election Day,” he said. “The voter still, you know, has the potential to come in person and, you know, get there prior to their processing of that absentee and vote in person.”

Normand hopes the state issues some kind of clarification that allows Manchester to pre-process its absentee ballots more efficiently for the November election, not just to make the process easier on pollworkers but also to ensure there’s more time to detect potential mistakes on voters’ absentee ballot paperwork before Election Day. He said 219 absentee ballots were rejected in Manchester during the state primary, and nearly 175 of those were because of paperwork errors like a missing signature or envelope.

If Manchester were able to more easily offer pre-processing, Normand said it would be easier to reach out to voters to give them a chance to fix mistakes like these before Election Day.

/ SEP 15, 2020

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/ “The state has an opportunity to provide the single biggest positive impact on how things run in November with this issue, resolving this issue,” Normand said.

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