SB 418 NEW LAW!!! First time voter registering to vote at the polls.

SB 418, Chapter 239 of the Laws of 2022, requires that in-person voters registering in New Hampshire for the first time who are unable to prove their identity on election day must use a ballot marked as an “Affidavit Ballot.” The voter has a duty to submit proof of identity to the Secretary of State within 7 days after the election. If identity is not proven, the affidavit ballot is removed and the votes on that ballot are deducted from the election results. This guidance addresses implementation of this new law.

A. Who is required to use an affidavit ballot?
A voter uses an affidavit ballot only if all of the following apply:

1.  Election Day Registration;
2. First time registrant in New Hampshire;

• When ElectioNet is available at the polling place, check for prior registration;
• When ElectioNet is not available, rely on the Voter Registration Form entry for “Place Last Registered to Vote.”
• If applicant enters a New Hampshire town/city ward, treat as previously registered in New Hampshire – affidavit ballot does not apply;  If the applicant left the “Place Last Registered to Vote” blank, ask the applicant to verify that they have never been registered to vote anywhere in New Hampshire in the past.

​​​​​​​3. Applicant does not have valid Photo ID to prove identity; AND
4. Applicant does not meet the identity requirements of RSA 659:13; RSA 659:13,I(c); RSA 659:23-a. Page 2 of 10

The greeter or a ballot clerk must direct an unregistered person seeking to register and vote without a valid photo identification to the Supervisors of the Checklist. RSA 659:13, I(c)(2).

B. Verifying Identity

The Supervisors of the Checklist, during processing of the voter’s registration, shall review the voter’s qualifications and determine if the voter’s identity can be verified. RSA 659:13, I(c)(2).

For registered voters who do not have photo ID, a ballot clerk will work with the voters to determine if the Moderator, Clerk, or a Supervisor personally knows the voters well enough to verify each voters identity.

If identity is verified, mark the voter on the checklist as if they showed a New Hampshire driver’s license and issue a ballot.

If identity is not verified, send the voter to the “No Photo ID” table where the staff will require the voter to complete a Challenged Voter Affidavit and take the voter’s photo. The voter presents the completed Challenged Voter Affidavit with an attached photo to the ballot clerk. The ballot clerk marks the checklist, including a checkmark in the CVA box, and issues the voter a ballot. This new law does not change the established process for a registered voter without photo ID.

For voters registering for the first time in New Hampshire on election day without a photo ID, if the Supervisors of the Checklist cannot verify the identity of an applicant who is registering in New Hampshire for the first time, the applicant must execute a Challenged Voter Affidavit, have their photo taken, and vote using an affidavit ballot. The photo taken shall be attached to the second copy of the Affidavit Verification Letter and delivered to the Secretary of State. If the Moderator, Clerk, or a Supervisor personally knows the applicant well enough they can verify the voter’s identity.

For a voter already registered in New Hampshire but who is registering in a new town or ward, the process for proof of identity by an applicant who is registering to vote but was previously registered in New Hampshire, which is known as a registration transfer, is not changed by SB 418. A Moderator, Clerk, or Supervisor who personally knows the person can verify the applicant’s identity. Otherwise, the transfer registration applicant must complete a Qualified Voter Affidavit and have a photo taken or complete an affidavit of religious objection. The photo is Page 3 of 10 attached to the Qualified Voter Affidavit and kept with the Supervisors’ records. For all voter registration applicants:

• If the camera fails, the voter may vote without a photograph being taken.
• If the voter objects to being photographed based on religious beliefs, the voter shall complete an affidavit of religious exemption in accordance with RSA 659:13-b.

For an election day applicant who is registering to vote for the first time in New Hampshire without a photo ID, after the registration is approved by the Supervisors, the Moderator oversees the marking and issuing of an affidavit ballot and Affidavit Voter Package to the voter.

The Moderator shall direct a ballot clerk to add the voter to the checklist and ensure that the box for Challenged Voter Affidavit use (CVA) on the checklist is marked to show that the voter used a Challenged Voter Affidavit for proof of identity.

C.  Affidavit Voter Package
 voter who uses an affidavit ballot shall be issued an “Affidavit Voter Package.” The Secretary of State will issue each town and city ward a quantity of Affidavit Voter Packages prior to the next election and will establish a process for replenishing the supply as needed in advance of future municipal and state elections.

The Affidavit Voter Package must include:

• A prepaid and pre-addressed U.S. Postal Service envelope addressed to the Secretary of State;
• An Affidavit Verification Letter (two copies) with the document “Registering to Vote in New Hampshire,” which explains the documents required to qualify to vote in New Hampshire;
  • One marked copy of the Affidavit Verification Letter shall be issued to the voter;
  • One marked copy of the Affidavit Verification Letter shall be retained by the local election official to send to the Secretary of State. Page 4 of 10
  • At state elections, include the state copy of the Affidavit Verification Letter(s) with the election night return of votes and the one4all tablet.
  • At special state elections, mail the state’s copy of the Affidavit Verification Letter(s) to the Secretary of State using a pre-paid, pre-addressed, U.S. Postal Service envelope provided by the Secretary of State and ensure it is placed into the U.S. mail within one day of the election (by 5:00 P.M. on the Wednesday immediately following election day).
  • At municipal elections, the Moderator, with assistance as needed from the Clerk, shall place the copies of the Affidavit Verification Letter(s) in a prepaid, pre-addressed, U.S. Postal Service envelope provided by the Secretary of State and ensure it is placed into the U.S. mail within one day of the election (by 5:00 P.M. on the Wednesday immediately following election day).
• The New Hampshire Voter ID Law – Explanatory Document, which has been revised to reflect the Affidavit Ballot law.
• A blank voucher for obtaining a free photo identification, for voting purposes only, from the Division of Motor Vehicles. The Moderator should inquire whether the voter has a photo identification that they just did not bring to the polls. If the voter does not have any photo ID, the Moderator should explain the availability of a free photo identification through the Division of Motor Vehicles. Encourage the voter to obtain the Clerk’s signature on the voucher while at the polling place. In a city, Ward Clerks may sign the voucher. The vouchers provided in the Affidavit Voter Package will have a Secretary of State seal on the form and need not have the Clerk’s seal on the form, just the Clerk’s signature.
  • A Division of Motor Vehicles form explaining the proof of identity that must be presented to obtain a photo identification for voting purposes only should be included.

The voter must deliver the completed Affidavit Verification Letter and a proof of identity document in the pre-paid, pre-addressed, US Postal Service envelope to the Secretary of State within 7 days after the election. Delivery to the Postal Service no later than day 5 following the election is recommended. The voter may also have the completed package Page 5 of 10 delivered to the Secretary of State’s office no later than day 7 following the election.

The Moderator should pre-number sets of Affidavit Verification Letters for each election. Number both the copy going to the voter and the copy going to the Secretary of state with a sequential number in the “Affidavit Ballot #___” space. This will ensure that if a Deputy or Assistant Moderator issues an affidavit ballot when covering for the Moderator, there is one unique number for each affidavit ballot.

The State’s copy of the Affidavit Verification letter should be the only record containing the voter’s name and the Affidavit Ballot number. Do not keep a copy or a separate list. This helps preserve the voter’s right to a secret ballot. Once the State’s copy of the Affidavit Verification letter is sent to the Secretary of State, there should be no local record that identifies which voter used an affidavit ballot or the Affidavit Ballot number that was written on a specific voter’s ballot.

D. Affidavit Ballot

The “Affidavit Ballot” is an election day ballot on which the Moderator marks “Affidavit Ballot # ___.” Enter the number “1” on the affidavit ballot for the first voter using an affidavit ballot, “Affidavit Ballot #2” on the affidavit ballot for the second voter using an affidavit ballot, continuing sequentially for all affidavit ballots used at the election. The “Affidavit Ballot #_” shall be written in red or blue ink in the header area of the ballot.

At town, school, and village district elections, where a voter receives ballots from both town and school elections and/or SB2/Official Ballot Referendum multiple page ballots, the “Affidavit Ballot # __” must be written on each ballot page using an identical number on each ballot page issued to one voter.

At polling places using a ballot counting device, a single thick black line must be drawn through at least 3 of the timing marks along the top and bottom of the ballot. If an affidavit ballot voter inserts their ballot into the ballot counting device, these markings will cause the device to reject/return the ballot. Affidavit ballots must be placed into the device’s side pocket for hand counting with other hand count ballots. The side pocket is designated as the container for affidavit ballots as required by RSA 659:23-a, IV.

At polling places using a ballot box, a voter casting a marked affidavit ballot in a hand count polling place must cast the ballot in person and the Page 6 of 10 Moderator must place the marked ballot in a container designated “Affidavit Ballots.” Each polling place must prepare this “affidavit ballots” box for each election to ensure its availability if needed. A cardboard box with a printed sign attached stating “Affidavit Ballots” satisfies this requirement. RSA 659:23-a, IV.

After the polls close to voting, the Moderator must manage the hand counting of affidavit ballots in a manner that protects those voters’ right to a secret ballot. After counting is complete, the affidavit ballots must be kept segregated from all other ballots and sealed into a separate container. At most polling places, the affidavit ballots can be sealed into a large envelope or box if needed. The sealed container with the marked and counted affidavit ballot(s) must be placed in the custody of the Clerk who will securely store the container in the same place and manner as sealed boxes of ballots from the election. The separate, sealed, affidavit ballot container will allow retrieval of specific affidavit ballots without breaking the seal(s) on the other boxes used to store ballots following the election.

For state elections, if the ballots from the polling place are transferred to the custody of the Secretary of State for the purposes of an audit or re-count, the sealed affidavit ballot container shall also be transferred to the custody of the Secretary of State.

Best practice is for the Moderator to hand count all affidavit ballots using a tally sheet that will also be used for hand counting other ballots. When the Moderator completes entering the votes from the hand count of the affidavit ballot(s) on the tally sheet, the same sheet will be used by the team hand counting other ballots that will add marks on the tally sheet for the other ballots the team counts. When counting is complete, the combined marks from the affidavit ballots and other hand count ballots will not allow anyone to determine from the tally sheet how the affidavit voter(s) marked their ballots. The tally sheet shall not be marked to show how affidavit voter(s) marked their ballot(s) versus how other hand count voters marked their ballots - all ballot totals must include both affidavit ballots and other hand count ballots.

A tally of the number of affidavit ballots cast is public information and must be announced when the results of the election are announced. RSA 659:23- a, IV. Keep a record of the number of affidavit ballots that are issued to voters. Do not include the identity of the voters on that list.

Never disclose the name of any voter and the candidate(s) for whom that voter voted for or how that voter voted on a question. Announce Page 7 of 10 only the final total results that include all results from a ballot counting device and all results from hand counting of ballots. The ballot counting device results tape is a public document. After complete results are announced, the public gets to know how many votes a candidate received from device counted ballots versus from all hand counted ballots. Do not disclose the breakdown of how many votes a candidate received from affidavit ballots versus other hand counted ballots. This protects the affidavit ballot voter’s right to a secret ballot.

E. Deducting Votes

The Secretary of State will notify the Moderator to retrieve an affidavit ballot if a voter does not return an Affidavit Verification Letter as required by law. The Moderator and Clerk shall schedule a public counting session by posting a notice “in 2 appropriate places one of which may be the public body's Internet website, if such exists, or shall be printed in a newspaper of general circulation in the city or town at least 24 hours, excluding Sundays and legal holidays, prior to such meetings.” RSA 91-A:2, II. It is expected that the public counting session will take place in the Clerk’s office or some other suitable room in a town/city building.

For state elections, the deduction count and transmittal of the revised Return of Votes to the Secretary of State shall be completed as soon as possible, but no later than 14 days after the election. RSA 659:23-a, VI. The counting of the votes on an affidavit ballot(s) shall use “the same methods of counting and observation utilized on the day of the election for hand counted ballots.” RSA 659:23-a, V. “The counting of votes shall be public and conducted within [a] guardrail and shall not be adjourned nor postponed until it shall have been completed. No ballot shall be placed within 4 feet of the guardrail during the counting of votes.” RSA 659:63. Any informal tool, such as a rope, ribbon, or a line of chairs can be used as the rail establishing a 4 foot space between ballot counters and observers. After counting, the affidavit ballot(s) shall be re-sealed in an envelope or appropriate container and returned to the custody of the Clerk to be kept in secure storage with the other ballots from the election, for the period of time required by law.

The Moderator and Clerk shall revise the Return of Votes form previously submitted, noting the number of votes deducted because of unverified affidavit ballots and the resulting revised total votes for each candidate and question. This revised Return of Votes form shall be signed and dated by the Moderator and Clerk. For a state election, the revised Return of Votes must Page 8 of 10 be submitted to the Secretary of State by fax or scanned and attached to an e-mail sent to: elections@sos.nh.gov.

For state elections, the Secretary of State will aggregate revisions and certify the revised total vote for each office and question. The results posted on the Secretary of State’s web site shall be updated to reflect the deducted votes in a manner similar to that used to report recount results.

For municipal elections, the Moderator shall certify the revised Return of Votes. The Clerk shall update any posted results to reflect votes deducted because of unverified affidavit ballots. The Clerk will follow existing law to notify the candidates who are elected to office of their obligation to take the oath of office. The Secretary of State will refer to the Attorney General’s Office the names of all affidavit ballot voters who do not return an Affidavit Verification Letter with the required proof of identity. The New Hampshire Attorney General’s Office will investigate to determine whether any election law was violated in accordance with RSA 7:6-c. RSA 659:23-a, VII.

F. Recounts

If the total number of affidavit ballots submitted for any local, district, county, or statewide race or measure would, if counted in favor of either candidate or measure, alter the outcome of the election, the Secretary of State shall extend the deadline for requesting a recount until after the deadline for submitting Affidavit Verification Letters with proof of identity. The Secretary of State shall publish the new deadline(s) for requesting a recount. RSA 660:17-a.

G.  Requirement for Photo ID and Identity Verification

This is a review of existing law.

To be valid, photo identification must:

• Show the name of the individual to whom the identification was issued;
  • The name shall substantially conform to the name on the checklist/voter registration application signed by the applicant;
• Show a photograph of the individual to whom the identification was issued; and Page 9 of 10
• Be current or, if expired, have an expiration date that has not been exceeded by more than 5 years
  • Except, if the voter/applicant is 65 years old or older, there is no limit on use of an expired photo identification;
  • Except that a student ID is valid if it has either an expiration date or an issuance date that has not been exceeded by a period of more than 5 years.
• Be a driver’s license issued by any state or the federal government; or
• Be a New Hampshire Voter ID issued by the Department Of Safety; or
• Be a non-driver ID issued by the NH Division of Motor Vehicles or any other state; or
• Be a United States Armed Services identification card; or
• Be a United States passport or passcard; or
• Be a valid student identification card issued by;
  • A college, university, or career school; or o A public high school in New Hampshire; or
  • A non-public high school in New Hampshire; or
  • Dartmouth College; or
  • A college or university operated by the University System of New Hampshire or the Community College System of New Hampshire; or

Lists of the educational entities that are recognized as issuing valid student photo identification are posted on the Secretary of State’s web site here: https://www.sos.nh.gov/elections/elections/election-officials

• Be a photo identification not authorized by any of the subparagraphs above, but determined to be legitimate by the Supervisors of the Checklist, the Moderator, or the Clerk of a town, ward, or city (RSA 659:13, II (a)(7);
  • A voter using such an ID is subject to challenge;
  • Examples include, but are not limited to: Employer issued ID from an employer who the Supervisors, Moderator, or Clerk know to have appropriate controls;
• Verification of the voter’s identity by a Supervisor of the Checklist, Moderator, or the Clerk;
  • If verification of identity by a Supervisor of the Checklist, Moderator, or Clerk is used for a person registering on election day for the first time in New Hampshire, the checklist must be marked in the margin by the voter’s name with “P” indicating “personal recognizance,” “S” if verified by a Supervisor, “M” if verified by the Moderator, or “C” if verified by Page 10 of 10 the Clerk, followed by the first and last initials of the individual providing the verification of identity. The mark on the checklist shall be made by the Moderator, Clerk, or Supervisor who identified the voter. “By initialing the checklist, the moderator [or] clerk [or supervisor] personally affirms, under penalty of perjury, the identity of the voter they are qualifying to vote.” RSA 659:13, II (b). While RSA 659:13 lists the Moderator and Clerk, it relies on existing law that also gives the Supervisors of the Checklist authority to verify identity.
  • “An election officer pro tempore as provided for in RSA 658:19 through 658:22 shall have all the powers and duties of the officer he replaces as provided in the election laws and shall take the oath of office in like manner.” RSA 658:23. “Each town may have a deputy town clerk who shall be qualified in the same manner as the town clerk and who shall perform all the duties of the town clerk in case of his or her absence by sickness, resignation, or otherwise subject to the provisions of RSA 669:65.” RSA 41:18. Therefore, a Deputy/Assistant Moderator, Deputy/Assistant Clerk, or a Supervisor Pro Tem may also verify the identity of an applicant for voter registration who does not have a qualified photo identification with them at the polling place when registering.