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Under a new NH voting law, the right to a secret ballot is no longer guaranteed

Annabelle Rogers, 18, voted using an affidavit ballot. Her voting preferences, without her knowledge, would become public record.
Todd Bookman
/
NHPR
Annabelle Rogers, 18, voted using an affidavit ballot. Her voting preferences later became public record.

On a Tuesday in March, Annabelle Rogers finished up chorus class inside Hopkinton High School. She then headed to the school’s gymnasium, which was doubling that day as the official polling location for town elections.

Rogers had recently turned 18, making her newly eligible to vote. But she doesn’t have a driver’s license and didn’t bring any other identification to school that day. Still, she was permitted to register and cast a ballot.

“I got a sticker, which was pretty neat,” said Rogers.

Every other person who voted that day in Hopkinton — and in elections across the state — was afforded a secret ballot, a bedrock of American democracy that ensures participants in elections are free from intimidation or coercion.

But because of a relatively new and little used state law, Rogers was handed a different ballot. Hers was numbered, and trackable. If she didn’t return proof of eligibility within seven days, her vote wouldn’t count — and the candidates she chose on her ballot that day could become publicly available information, without her knowledge or consent.

“It's actually a little scary,” she said. “That's kind of a little nerve wracking.”

Some people warned about this very consequence — the disclosure of individual voters' ballot choices — when the law was up for debate at the State House.

The Republican-backed law signed by Gov. Chris Sununu in 2022 launched the use of provisional ballots for first-time voters who don’t have proper identification when they register at the polls.

When Rogers failed to mail in proof of her identification, Hopkinton voting officials subtracted her votes from final tallies. This document is available to the public, inside of Hopkinton Town Hall.
Todd Bookman/NHPR
When Rogers failed to mail in proof of her identification, Hopkinton voting officials subtracted her votes from final tallies. This document is available to the public, inside of Hopkinton Town Hall.

Under the law, voters like Rogers are allowed to cast something called an “affidavit ballot” instead; they are then given a prepaid envelope and instructions on how to mail in proof of their identity.

When Rogers failed to return the paperwork in on time, the New Hampshire Secretary of State’s office instructed voting officials in Hopkinton to erase her votes from final tallies — as though she’d never shown up at the polls in the first place.

Though the Secretary of State’s office doesn’t release the names of voters who use affidavit ballots, it does publicly disclose the towns and cities where they are used. A review of the voting rolls in Hopkinton revealed that only one person registered at the polls without an identification on Town Meeting Day this March: Annabelle Rogers. The revised voting totals released more than a week after the election provided the last link in the chain: who Rogers voted for, before her votes were erased.

“I get why they had to erase the vote," she said. "But they should probably do it in a way that doesn't make that public."

New Hampshire Secretary of State David Scanlan has previously defended the law, saying it implemented “reasonable controls” for those who seek to vote without an ID, but he declined an interview request for this story. He also didn’t respond to written questions, including whether he believes affidavit ballot voters have the same right to a secret ballot as all other voters.

Rogers said she was told at the polls that her vote would be erased if she didn’t mail her paperwork on time. But she was unaware, until NHPR contacted her, that her voting preferences could become publicly available.

“It's a little detective-y, but you could see how someone could do it pretty easily if they really wanted to,” she said.


A fear for voting officials, realized

Republicans passed the affidavit ballot law citing the need to increase public trust in the election process. Previously, anyone who registered for the first time in New Hampshire without showing identification could sign an affidavit swearing to their eligibility to vote. While they could be subsequently investigated for possible voter fraud, their ballots were not trackable, which meant their votes could not be erased from final tallies if fraud was detected.

Since the law went into effect in 2023, five affidavit ballots have been cast in New Hampshire: one each in Hopkinton, Hooksett and Derry, and two in Manchester. On just two occasions — this March in Hopkinton, and last November in Manchester — the voter failed to mail in a copy of their required identification, resulting in an erased vote.

NHPR was able to confirm the identity of the Manchester voter whose ballot was voided, but they didn’t want to be interviewed and requested anonymity, so we are not naming them in this story. Like Rogers, they had recently turned 18 years old.

In Hopkinton, local voting officials said they instructed Rogers to return the paperwork, explaining that her votes would otherwise be erased. Rogers confirmed she understood that step in the process. However, she said her grandparents, with whom she lives, were uncomfortable with her mailing sensitive documents and instead said she should register at the town offices another time.

NH Secretary of State David Scanlan speaks in the state Senate in December of 2022.
Dan Tuohy
/
NHPR
NH Secretary of State David Scanlan, right, in 2022. Scanlan defended the process laid out in Senate Bill 418, which created the affidavit ballot system.

“They were like, ‘We don't know if we like that,’” Rogers said. “They can be very cautious about that kind of thing.”

She decided to forgo mailing in the paperwork, in part, because the stakes of the town’s elections this spring seemed relatively minor: The only contested race was for supervisor of the checklist. Positions like library and cemetery trustee were unopposed.

“This wasn't a big deal because it was a pretty lax election,” Rogers said. “There wasn't much being voted for.”

But local election officials and voting rights advocates weren’t as quick to shrug off what happened to Rogers under the new law.

“We should all agree that every voter in New Hampshire should have the right to a secret ballot,” said Sara Persechino, Hopkinton's town moderator. “I think that's a real tenet of our democracy in our country.”

Liz Tentarelli, president of the nonpartisan League of Women Voters New Hampshire, said her group warned that this very scenario — that other people could figure out who someone voted for — could be a possibility when the law was up for debate.

“These are your neighbors. These are the people in your own community who are now invading a private ritual,” said said, adding, “I think that's just terrible."

Almost immediately after Sununu signed the new law, the ACLU of New Hampshire and another coalition of progressive voting rights groups challenged it in court — citing concerns about its effects on voter privacy. Those cases were dismissed on procedural grounds, in part because those suing couldn’t point to anyone who’d been directly affected, and are now before the state Supreme Court on appeal.

Henry Klementowicz, an attorney with the ACLU, said the fact that some voters’ preferences can become public through the use of affidavit ballots justifies concerns that the system “intrudes on an important part of American democracy—the right to a secret ballot.”

“We opposed SB 418 in the legislature for this very reason," he added.

Another court case filed by the Democratic National Committee is still active, but a superior court judge denied an injunction request, meaning the law remains on the books and in effect.

The New Hampshire Attorney General’s office, which is defending the constitutionality of the law, has argued in court filings that the affidavit voting process creates a “low risk of erroneous deprivation of a person’s right to vote.”

Attorneys for the state told the court that “there are clearly sufficient procedural safeguards to ensure that a qualified voter who wishes to register to vote and vote may vote in an election.”


Cleared of wrongdoing, but vote erased

"I voted" stickers line a ballot counting machine in Keene
Paul Cuno-Booth
/
NHPR
"I voted" stickers line a ballot counting machine in Keene.

At the State House this year, Republicans are backing a new proposal that would further restrict voting access for those without proof of eligibility at the polls.

Under current law, voters who don’t have the right documents on Election Day can sign affidavits attesting that they’re a U.S. citizen and they live where they’re trying to vote. Under the new bill, which has cleared the New Hampshire House and is awaiting Senate action, voters would be required to show a passport, birth certificate or naturalization papers in order to register — no exceptions.

If the bill becomes law, it would effectively end the new affidavit ballot process, as well.

In the meantime, every voter who lacks identification at the polls and fails to provide proof of eligibility within seven days is automatically referred to the New Hampshire Attorney General’s office for investigation into whether they violated any election laws.

According to a memo provided by that office to NHPR, a state investigator wasn’t able to make contact with the Manchester voter who used an affidavit ballot in the 2023 city elections last fall. But they confirmed his age and identity by obtaining records from the Manchester School District.

“This office concludes there is no evidence suggesting that [name redacted] was not qualified to vote at the time of the November 7, 2023 Manchester city election,” the memo reads. “Therefore, this matter is closed.”

That investigation may be over, but that voter, who was deemed qualified to cast a ballot, still saw his vote permanently erased from the election results. In a quirk of the voter registration process, that Manchester voter and Rogers, in Hopkinton, are now legally registered to vote in future elections.

Rogers said the heightened tension over American elections in recent years makes a secret ballot even more vital.

“It's kind of very important for people to have that privacy because you don't want people doing extreme things because of politics,” she said. 

Todd started as a news correspondent with NHPR in 2009. He spent nearly a decade in the non-profit world, working with international development agencies and anti-poverty groups. He holds a master’s degree in public administration from Columbia University.
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