Pay attention.

The issue may seem obscure, but it goes to the heart of our democratic election processes. Wrap your head around it, contact the Senate Internal Affairs Committee and the Governor's office, and you may be able to help save the integrity of the New Hampshire election system.

On April 27th the New Hampshire Senate Internal Affairs Committee has a chance to preserve the integrity of our state's election systems by voting to kill HB365, which was passed by the House last month. HB365 deals with an issue that many of us have heard of, especially in the 2000 and 2004 elections: the post-election recount. Since 2000, it has become clear that the recount plays a critical role as guardian of the democratic election process.

What is HB365?
House Bill 365 amends the current laws that define post-election recount procedures for candidates with a greater than 3% spread in the election results. HB365 removes ambiguities in the current law regarding when the application fee ($2,000) must be paid, and specifies that the full cost of a statewide recount (estimated to be at least $250,000) must be paid by the requesting candidate at least five days prior to the recount.

Why is the DFNH Fair Elections Committee (FEC) so strongly opposed to HB365?
HB365 radically changes the transparent, accessible, and honest nature of the New Hampshire election system. It holds recounts ransom for exorbitant fees, and invites fraud by defining a clear limit (3% spread) at which point a recount request has little to no chance of being fulfilled. The FEC believes that the ambiguities of the law can be resolved through a different approach that supports the integrity, accessibility and transparency of the recount process. This approach is defined below in this article.

What are we trying to achieve?
The revisions to the law--as defined in HB365-- were written with one objective in mind, as expressed to me by Assistant Attorney General Fitch: "to protect the taxpayers of the state." His office takes the position that under the current wording of the law scurrilous candidates can demand a recount at high cost to the taxpayer, and then leave town without paying for the costs incurred.

Assistant Attorney General Fitch's point is well taken. However, when dealing with something as precious as our election systems, an additional, equally important, objective must be met: "to preserve the integrity, transparency, and accessibility of our election systems."

This second objective is one that Secretary of State Gardner has spent nearly 30 years of his life fulfilling in his decisions, conduct, and management of our election systems.

Unfortunately, HB365 fails miserably in meeting the second critical objective.

What have we learned from the last two national elections?
As the nation has painfully learned in the past two presidential elections, recount accessibility and procedures are an integral part of the election process. The integrity of the recount process is the scaffolding that supports the integrity of the election process. In the new landscape of technology-based election systems, the recount system gains an even higher level of importance.

Florida 2000 and Ohio 2004 showed us a chaotic display of mismanaged and questionable recount procedures, which irreparably damaged the national trust in our democratic processes.

In 2004 specifically, recount requests were made by the Green, Libertarian, and Independent parties. These were not frivolous requests. In a time of national uncertainty and technology-based election systems, these non-major parties were responding to the pleas of ordinary citizens around the nation who just wanted to be sure that their votes were counted.

More to the point at hand: 2004 also showed us that candidates may be denied recounts through the use of exorbitant fees. New Mexico, whose machine counted results were called into question, demanded 1.4 million dollars from the Libertarian Party, which had already provided a deposit of more than $100,000 in seeking a recount to verify the results of that election. Needless to say, that recount was never held.

What can New Hampshire teach the nation?
2004, on the other hand, provided the nation with a glimpse into a whole other world of possibilities. A world where even a third party candidate can be granted a recount, where ballots are collected in one central location for an orderly and respectful recount, where every paper ballot is counted by hand, where the voter's intent is the most important determining factor in the outcome, and where ordinary citizens conduct the business of democracy in a setting of awe, honor, and humility.

In 2004 the nation witnessed the exemplary manner in which the Granite State conducts its recounts, when the Secretary of State granted Independent candidate Ralph Nader's request for a recount to verify the results of the NH presidential election. The Nader recount was requested literally at the final minute for eligibility on the Friday following the election, the appropriate application fee was delivered early the following week, and the recount was conducted and paid for in full for a selected number of precincts in the state where the machine counts were in question. When the Nader team was satisfied with the purity of the vote counts, the recount was called off, and no further costs were incurred.

How can we remedy HB365?
All we need to do is look at the facts to see that we have already proven our ability to conduct recounts without harming the NH taxpayer or the integrity of our election systems. The Nader recount, in effect, met both objectives for our election system. The taxpayers were protected, and the integrity, transparency, and accessibility of our election systems was preserved.

We were able to do this because of the management and decisions made by our unusual Secretary of State. If the ambiguities of the law have allowed Secretary Gardner the freedom to mold our election system into one of exemplary stature, then maybe we need to look at resolving those ambiguities in a way that codifies those decisions and traditions, rather than cutting them off at the knees.

At the time of the Nader recount, we in NH looked out at the sea of electoral chaos in the nation, and we held our heads high. How ironic if we allow that event, which prompted the writing of HB365, to turn us from being an exemplar to being another New Mexico.

References
At the time of the Nader recount, the article "New Hampshire Recount, Act One" captured the NH spirit.

Even if Diebold receives a passing mark, the Concord recount, perhaps the first of several in statehouses nationwide (all-important election-decider Ohio may be reviewed in December), could by no means be considered a waste of time and resources. Irrespective of the outcome, the exercise itself teaches us important things about the benefits of openness in the pursuit of functioning democracy. It reveals a lot about what's good about our voting system--and offers hints of what needs to be fixed, which is plenty.

New Hampshire may not be typical of other states, in part because it is so small, but it has some important lessons to offer:

§ Transparency is the only way to go. New Hampshire resolutely refuses to use any ballot-counting technology that does not leave a paper trail; it will not use the "black box" touch-screens that have been installed throughout the country, and now record the votes of 29 percent of Americans. Thus every New Hampshire voter fills out a paper ballot. Only the counting mechanism varies--some localities use optical scanners from Diebold or another vendor, and others stick with hand counts. This means that as long as a candidate can be found to request a recount and someone can be found to pay for it, the citizens of New Hampshire can be fairly sure that their votes will be properly counted.

§ Third parties do play honest broker. Only a candidate can ask for a recall. With Bush having no incentive to do so, and Kerry having no interest in contesting the results in a state he won, there would be no advocate for accountability if Ralph Nader had not been in the race.

§ We should be deluged with statistics, but we aren't. New Hampshire is a distinct rarity, in that it posts election totals, right down to the precinct level, on the Internet--for anyone to see.

Additional References
New Mexico 2004 recount request transcript

HB365

Current recount statute

HB365 Proposed Revisions in bold italics
1. The application shall be made in writing to the secretary of state and shall be submitted /with payment of the fee required by RSA 660:2 / no later than the Friday following the election. [Each candidate requesting a recount shall pay the secretary of state fees as provided in RSA 660:2.]

2. IV. If the difference between the vote cast for the applying candidate and a candidate declared elected shall be greater than 3 percent of the total votes cast in the towns which comprise the office to be recounted, the candidate shall pay the fees as provided in RSA 660:2, III and shall agree in writing with the secretary of state to pay any additional costs of the recount. /Upon receipt of the application and payment of the fee required by RSA 660:2, III, the secretary of state shall notify the candidate of the estimated cost of the recount. The candidate shall pay the secretary of state the entire estimated cost of the recount no later than 4:00 p.m. on the day 5 days before the scheduled start of the recount. The secretary of state shall bill the candidate for any actual costs that exceed the estimate or refund to the candidate any part of the estimated cost that was not required to compensate the state for the cost of the recount. If the candidate fails to pay the estimated cost amount by the deadline, the secretary of state shall not conduct the recount./