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Witnesses tell Election Law subcommittee absentee affidavit changes created chain-of-custody and verification gaps; witness urges statute-level fixes
Summary
The House Election Law Subcommittee heard testimony that changes to absentee-affidavit requirements and the use of an election procedure manual have removed a notarized start to the absentee-ballot chain of custody, creating verification and recount challenges.
The House Election Law Subcommittee spent more than an hour Friday hearing detailed testimony about absentee-affidavit procedures, the state election procedure manual and long-standing statutory definitions that Daniel Richard, a New Hampshire resident and frequent election-law witness, said have produced verification gaps in absentee voting.
Richard told the panel he has litigated election-law issues through the state Supreme Court and said the current practice, which he traced to a 1979 recodification of election statutes, removed requirements that began what he described as a lawful chain of custody for absentee ballots. "The notary certificate was just the sealing the deal, confirming that the process... We now have a lawful chain of custody, and everyone's being treated the same," Richard said in testimony describing earlier practice.
He told members the legislature previously required an eyewitness — a notary public, justice of the peace, selectman, clerk or moderator — to witness a voter mark and insert an absentee ballot into its envelope; that requirement now is absent in statute or has been altered, he said. Richard warned the change makes many absentee ballots effectively "defective" for recount and audit purposes, and he argued the disparity between machine-counted jurisdictions and places that use hand counts raises equal-protection concerns.
Richard also criticized the use of the Election Procedure Manual as an operational substitute for statutory law. He said the Manual includes guidance on affidavit envelopes but is not legislation and that the Secretary of State and attorney general "do not have lawmaking power" to rewrite statutory execution requirements.
Richard pointed to specific statutory provisions and past amendments in his testimony and noted that the state Supreme Court remanded his equal-protection claim for further proceedings. He also highlighted practical evidence from 2020: absentee voting rose sharply that year and accounted for roughly 32 percent of ballots in New Hampshire (about 260,000 ballots), increasing the scale of any procedural gap, he said.
Representatives on the subcommittee asked practical questions about accommodating voters who are homebound, overseas or in the military. Richard suggested restoring earlier procedures that allowed local officials to authenticate absentee ballots in person — for example, by dispatching an authorized local official to long-term-care facilities or homes — rather than relying on unsigned self-affirmations.
The subcommittee also heard from other witnesses earlier in the session who noted related definitions and enforcement issues. Committee members emphasized they will consider statutory fixes, the scope of any administrative guidance and the interplay with federal law, including the Help America Vote Act (HAVA) requirements and federal prohibitions on durational residency requirements for voting.
No formal actions were taken Friday; the subcommittee chair said a report will be prepared and distributed to the full Election Law Committee and that members may pursue legislation or further study based on the record.
