The official ballot referendum form of town meeting under RSA 40:13 (SB 2) consists of two sessions. At the first, “deliberative,” session warrant articles are explained, discussed and debated and may be amended before they are submitted to the voters on the official ballot for a final vote at the second session. Ever since the adoption of official ballot referendum town meeting, commentators have noted that, although participation at the second session exceeds the numbers of voters at traditional town meeting, participation at the deliberative session tends to be much lower than at traditional town meeting. This case illustrates the great power of the deliberative session to control the outcome of town meeting.
The plaintiffs submitted a warrant article by petition: “To see if the Town of Barrington will vote that infrastructure and landscape development (that is, road, streets, water, sewer, storm drains, utilities, etc.) of said town center/village district shall be by means of private investors and private developers and not by the Town of Barrington at taxpayer’s expense.” At the deliberative session of town meeting the article was amended to delete all language after the introductory phrase “To see....” The plaintiffs brought suit seeking an injunction to compel the town to place the article in its original form on the official ballot for the second session. The trial court denied the injunction, and the plaintiffs appealed to the Supreme Court.
The plaintiffs raised two principal claims. First they argued that the amendment was so drastic that it changed the subject of the warrant article in violation of RSA 39:2, which provides that “[t]he subject matter of all business to be acted upon at the town meeting shall be distinctly stated in the warrant … and nothing done at any meeting … shall be valid unless the subject thereof is so stated.” The Supreme Court held that the purpose of RSA 39:2 is to prevent an amendment from adding a new subject, not to prevent an amendment that deletes an article’s substance.
Next the plaintiffs argued that the amendment was so drastic that it amounted to a final vote in violation of their right to submit a petitioned warrant article under RSA 39:3 and RSA 40:13, IV, which provides that “[w]arrant articles that are amended shall be placed on the official ballot for a final vote on the main motion as amended.” The Court rejected this argument as well: “We find nothing in RSA 40:13, IV or RSA 39:3 that prevents voters at the deliberative session from effectively removing a subject from consideration at the second session by amending an article to delete the entire subject thereof.”
Proponents of warrant articles at official ballot referendum town meetings must be aware that they have the burden of persuading two distinct groups: the relatively small set of voters at the deliberative session and the large number who turn out only for the election and second session to vote by official ballot.