Absent Fraud, Voting Irregularities Do Not Invalidate an Election Unless They Affect the Result

John Sellers v. Town of Bristol
Rockingham County Superior Court Docket # 215-2017-CV-00062
Monday, August 21, 2017

In a proceeding challenging the outcome of the March 2017 election for select board and budget committee in the Town of Bristol the Superior Court refused a request that the Town be required to hold a new election for those offices.

John Sellars was a candidate for select board where there were four candidates vying for two open positions.  Sellars lost by 16 votes and he applied for a recount that subsequently confirmed the original vote totals. On appeal to the Superior Court, Sellars challenged the counting of absentee ballots claiming some of those ballots did not have applications and/or affidavits and should not have been counted.  Following another recount of the 75 absentee ballots that was agreed to by the parties Sellars narrowed his challenge to votes cast by absentee on the following grounds; 16 for lack of signed application, 5 for lack of executed affidavit, 1 for lack of matching signatures and 18 for “early voting.” 

Sellars also challenged the election of budget committee members because there were four open seats and voters should have been instructed to vote for not more than four.  Due to a typographical error the ballot instructed voters to vote for not more than three candidates. On that question, the Court relied upon RSA 669:61 and a prior NH Supreme Court decision in Town of Derry v. Adams, 121 N.H. 473 (1981).  The Court ruled that a new election was not warranted since RSA 669:61 dictated that the failure to elect a fourth budget committee resulted in a vacancy that was filled by the remaining budget committee members. 

In ruling on the challenge to the election for select board the Court preliminarily stated that absent evidence of fraud, any problems with absentee ballots would not render the election invalid unless there was proof of irregularities that affected the result.  After tabulating all of the votes cast for select board the Court concluded that the results would not change even if all 75 absentee ballots were excluded.  For that reason, the Court did not need to address whether the absentee ballot forms and affidavit envelopes complied with RSA Chapter 657.  In so ruling the Court also noted that an aggrieved party cannot await the outcome of the election and then challenge deficiencies which he might have complained about to proper authorities before the election.

Sellars also claimed that 19 absentee ballots were improper early voting because those voters sought and received absentee ballots on March 13th, the day before the impending blizzard on election day.  Voting by absentee ballot under RSA 669:26 is limited to those who are unable to vote on the day prescribed due to being absent from town, religious observance or commitment or physical disability or employment obligation.  The Town Clerk testified that  when she provided absentee ballots she verbally reaffirmed the eligibility requirements but she did not question each voter provided the voter signed the absentee ballot application that has the voter affirm under oath they are eligible under RSA 669:26.  Because the time for challenging an absentee ballot is limited to the time after the moderator publicly announces the name of the absentee voter, and due to the fact Sellars did not offer any direct evidence demonstrating an absentee voter was ineligible, the Court rejected his challenge to those ballots.   

The Court also addressed claims by Sellars that 22 ballots were incomplete; 16 without a signed application, 5 without an executed affidavit envelope and 1 ballot without matching signatures on the application and affidavit.  Addressing only 16 of these ballots, the Court first concluded that the five (5) without a signed absentee voter application were due to an error by the Town not the voter.  Those five (5) voters had requested absentee ballots via email, but instead of mailing the absentee voter application with instructions to submit the form, the Town simply mailed the absentee ballots to the voters.  Because the Town deemed the email requests acceptable, the moderator did not have a signature to compare to the signature on the affidavit envelope when the absentee ballots were processed on election day.  The Court declined to disenfranchise these voters due to the error of the Town ruling that election statutes are liberally construed in favor of the right to vote according to one’s beliefs. 

Similarly, the Court declined to invalidate ballots likely cast by 11 residents of elderly housing units due to missing signed applications.  In an attempt to accommodate voters at three elderly housing units the Town had two checklist supervisors visit and provide absentee balloting materials.  11 of those residents did not submit absentee voter applications.  Again, this was a mistake by the Town not the voter.  Furthermore, the attending checklist supervisors did verify each of the 11 voters were registered voters and received executed affidavit envelopes back from those registered voters the same day.  

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