A bill to reprogram automated voting machines has support from election officials

Feb. 24—CONCORD — The state's top election official and town clerks have endorsed a bipartisan bill to reprogram automated voting machines to detect ballots that have votes for too many candidates for a single office.

Currently, if the machine detects an "overvote" it doesn't count the votes for anyone for that race, though it does process the rest of the ballot.

This change, if it had been made before the 2020 election, would have immediately flagged the absentee ballots that were incorrectly read by Windham voting machines on Election Day because of folds through one of the candidates' names, said state Rep. Marjorie Porter, D-Hillsborough, the chief architect of the reform measure.

Porter said the post-2020 election summary tapes of votes from other towns she and others have seen led her to believe many more votes were invalidated as the machines wrongly read them as overvotes.

"This leads me to believe the shadow issue found in Windham may have been more widespread than we know," Porter told the House Election Laws Committee Wednesday.

The amended bill Porter presented would require that these machines kick out any ballot that appears to have votes for too many candidates for a single office.

"Our machines can be programmed at no additional cost to reject the ballot, much like that change machine returns the crinkled dollar you try to put in at the laundromat," Porter said.

This ballot would then be placed in an "auxiliary bin" to be hand-counted by local election officials after the polls have closed.

Used in other states

Many states already require their voting machines be fine-tuned this way, including Vermont, Massachusetts, Rhode Island and Connecticut, Porter said.

Secretary of State David Scanlan said he could "get behind" Porter's amendment, which would replace an original bill he did not support.

The federal Help America Vote Act requires overvotes to be treated as outlined in Porter's amendment.

Scanlan said New Hampshire has been exempt from that law because it has a paper ballot backup and voters are given instructions on how to vote properly.

As first crafted, Porter's bill (HB 1163) would have given the voter the right to change a ballot a machine rejected as an overvote.

Scanlan and others opposed that because the same offer could not be made to those who cast absentee ballots that later were found to contain overvotes.

"I don't support the underlying bill because it creates two classes of voters," said Rep. Ross Berry, R-Manchester.

The amended bill is a good compromise, Porter said.

In Windham, a hand recount gave Republican Julius Soti 297 votes more than the machines did, and Democrat Kristi St. Laurent got 99 fewer votes.

An unprecedented forensic audit last July concluded that town officials improperly used a machine that created folds in absentee ballots, which were read wrongly as votes.

The forensic auditors' final report urged the Legislature to change state law to allow for notification of overvotes at the polls for all machine-counted ballots.

"Overvote notification alone would not have prevented the problem in Windham: Almost certainly, a full hand count would have been necessary to establish the winners," the auditors said.

"But the problem would have been identified quickly."

Republican Soti co-sponsored Porter's bill.

Past efforts have failed

Progress on the issue does not mean this legislation is a done deal.

In past years, legislative committees have rejected similar reform. In 2018 the same House committee concluded it could "compromise the secrecy of the ballot."

Porter noted that in Derry nearly 848 ballots — 5% of the total — had at least one overvote on them.

Porter and election activists who looked at tapes said they identified other discrepancies in specific machines:

* In Windham, one voting machine had 292 overvotes (8.9% of ballots), and another machine had only 18 overvotes (1.3% of their ballots);

* In Merrimack, one machine had 396 overvotes (22.8%), and another had only 14 (less than 1%);

* In Manchester, one machine had 263 overvotes (15%), and another had only 60 (2.4%), and

* In Hampton, one machine had 121 overvotes (9.5%), and another had only 26 (1.7%).

"The statistics don't make sense," said Ken Eyring, a local watchdog and critic of how the Windham election was conducted, who helped lead the legislative campaign for the forensic audit.

"This is not just isolated to Windham. It's not hundreds, it's thousands across the state, and that is not acceptable if we want our elections to be accurate."

Derry Town Clerk Daniel Healey said the New Hampshire Town Clerks Association previously opposed these changes but now backed the original bill.

"In light of what happened in Windham, we are changing our position. It doesn't solve everything, but it is a step in the right direction," Healey said.

As for voting in Derry, Healey said the high number of overvotes may have occurred because a "popular" independent candidate in town ran for state representative.

It's possible many of those overvotes occurred when voters cast ballots for 10 Republicans or 10 Democrats as well as the popular independent, he said.