In a step towards establishing election integrity in New Hampshire, the entire NH House Election Law Committee, led by Chairperson Barbara Griffin (R-Goffstown), unanimously voted to authorize a forensic audit of voting machines and ballots in the town of Windham. On Mar. 11, on a 20-0 vote, the panel approved and sent to the full House a wholly rewritten version of Senate bill (SB43) that passed on a vote of 24-0 on Feb. 18.
Responding to pleas from Windham residents, and with strong support from Sen. Robert Giuda, R-Warren, who has tirelessly represented Windham's voice at the state level, Secretary of State (SoS) William Gardner eventually listened to voter concerns and recognized the importance of performing an independent forensic audit on the town's voting machines and ballots.
The new bill would direct the audit team to determine whether Windham's four Dominion AccuVote OS optical scanners (the only optical scanners municipalities are permitted, by law, to use) functioned correctly in the Nov. 3 election and whether the number of ballots counted by hand in Windham and those counted by the secretary of state during the recount on Nov. 12 matched the number of ballots cast.
The measure is the latest development to address a controversy that emerged after the Nov. 12 recount of the Windham's Rockingham County District 7 race, which took almost six hours and produced peculiar results.
Candidate Kristi St. Laurent Calls for a Recount
Julius Soti, a Republican, originally finished fourth in the race, earning the final State Rep seat for Windham, the sole town in the district. He defeated Democrat Kristi St. Laurent by just 24 votes. Due to the close margin, St. Laurent asked for a recount. During the Nov. 12 recount, the numbers changed drastically, with each Republican candidate gaining approximately 300 votes. Soti gained 297, Bob Lynn gained 303, Rep. Charles McMahon gained 298, and Rep. Mary Griffin gained 299. Laurent ultimately lost 99 votes on the recount, while her three fellow Democrat candidates gained 21, 28, and 18. Once completed, Soti kept the fourth spot and final spot, with his vote total increasing from 24 to 420.
Initially reluctant to get involved, SoS Gardner assumed the miscount was likely the result of human error in either adding the totals on election night or transcribing the final results for transmission to the Secretary of State's office. New Hampshire law permits only one recount in any given race. To challenge the results further, a candidate must file an appeal with the Ballot Law Commission, which St. Laurent did. On Nov. 23, the Ballot Law Commission spent several hours deliberating that appeal, hearing testimony from St. Laurent, her attorney, the Secretary of State's office, and others, as well as inspecting each of the 34 absentee ballots that were rejected. Ultimately, they upheld the results of the recount but requested an investigation by the attorney general's office, which has now been undertaken.
In her letter appealing the recount, St. Laurent, who had genuine concerns about the integrity of the election, told the five-member commission there appeared to be only two logical explanations to the election results:
"Either the machines were programmed to reflect unwarranted adjustments in multiples of 100 to the totals of all Republican candidates, and the top vote receiver among the Democrats or a significant number of ballots were double-counted during the voting process."
She added that double-counting wouldn't explain why her votes dropped by 99 in the recount, stating:
"If the machines were incorrectly programmed, it is imperative to know whether this was a localized program or a systemic threat to the integrity of the election results as reported."
St. Laurent's attorney, Paul Twomey, said that the outcome is what he and his client had hoped for, adding, "In the end, I declare victory although they ruled against my client. They asked the Attorney General to investigate the machines."
It is worth mentioning that although performed in some states to verify the vote and instill trust in the process, New Hampshire does not typically conduct post-election audits. A recent Republican-sponsored law that went into effect last July could change that. Signed by the governor on Jul. 17, 2020, SB283-FN "requires the secretary of state to study the use of high speed, optical/digital scan ballot counting devices for use in conducting post-election audits of electronic ballot counting devices used in state and federal elections."
The bill originally set a deadline of Nov. 1 to complete the study. However, Deputy Secretary of State Dave Scanlan stated at the time that his office had moved the deadline and would be conducting a test with two vendors at 9 a.m. on Nov. 30 at the State Archives. It is not clear if the test has taken place.
Windham's Unwavering Concern Over Election Integrity
The 603 Alliance, along with community activists like Ken Eyring, a 22 year resident of Windham who owns a software company and is a former chair of the Windham school board, have been actively involved in getting to the bottom of the election debacle—a disturbance they have named "The Windham Incident."
On Mar. 4 at 3:40 pm, Eyring had a phone discussion with SoS Bill Gardner to ask him about his apprehension of getting involved and see if they could find a common solution to this serious issue. Eyring said they had "an honest and very cordial three-hour conversation that found each of us describing specific concerns and finding specific solutions to each of them. It was a fruitful, informative, and enjoyable conversation."
Eyring said SoS Gardner informed him that he would "support a full and complete forensic audit of the machines." SoS Gardner explained his reluctance of the Secretary of State's office to perform an "audit" of the Windham election because he considered it to be a recount of a recount, which is prohibited by law and would set a bad precedent. Eyring indicated he did not see that as an issue because the forensic audit of the ballots would provide thorough answers as to where the discrepancies took place.
According to Eyring, his Mar. 4 conversation with SoS Gardner eventually included others and "triggered a few back and forth phone calls that continued until almost midnight." He added:
"Secretary Bill Gardner deserves a tremendous amount of credit for taking my call and agreeing to perform these audits that will hopefully provide all NH citizens the answers to the enormous discrepancy between Windham’s General Election Day results and the hand recount 9 days later. At the very least… NH, and America, will know if Windham’s voting machines worked properly during the November 3, 2020 General Election."
Erying provided a detailed summary of what was agreed upon in the hours-long phone conversation regarding the crucial SB43 audit of the Windham, NH November 3, 2020, General Election. SB43 now goes to the House floor, and when ultimately passed by the House, back to the Senate to approve or reject, or alter, the changes to the bill it passed. The audit will be completed within 45 days after SB43 is signed into law.
1. All four of the Windham, NH AccuVote voting machines and ballots will be forensically analyzed by a team of forensic analysts. One forensic analyst will be chosen from each of the two groups below to perform a full forensic analysis.
a. Harry Hursti, Ron Rivest, or Andrew Appel (Picked by the Secretary)
b. Col. Phil Waldron, Dr. Shiva Ayyadurai (The SOS will allow me to choose)
Jovan Hutton Pulitzer will be asked to be a member of the forensic team.
The forensic analysts will determine, in their own discretion, the process that will be followed for the forensic analysis. The NH Secretary of State and the town of Windham will provide the forensic analysts with whatever resources the analysts deem necessary to perform a complete and thorough forensic analysis, including but not limited to full access to the Windham AccuVote machines and all of the ballots from the Windham, NH November 3, 2020 election. The custody of Windham’s AccuVote machines will remain with Windham Town Officials.
The audit will take place in a location other than Windham, NH, or the customary recount locations for the Secretary of State. The Police Standards and Training Facility in Concord is currently being considered due to the size and security of the location, as well as the ability to live stream with multiple cameras.
The forensic team will produce a report of their findings and present it to the Secretary of State, who will make it available to the public forthwith.
2. All of the Windham, NH ballots from the November 3, 2020 election will be tallied through each of Windham’s four AccuVote machines. The paper tapes from all four machines will show the results for all races, be compared with each other, and be included in the forensic report.
3. A hand count will be performed by the NH Secretary of State on two races other than the Rockingham County District 7 State Rep race.
Once the audits are completed, the forensic team will deliver a report of their findings, recommended procedures, and remedies. The Windham community is looking for answers to every question they have and want nothing to be overlooked regarding vote tallies and machine performance (software, memory cards, hardware). Eyring commented the citizens of Windham are demanding a report that is the caliber of the Antrim County, MI Forensic Report, and anything less will be unacceptable.